Opinion
99 Civ. 9387 (HB)
August 24, 2001
OPINION ORDER
Plaintiff Francis Ogbo ("Ogbo") brings this action pursuant to Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000-e, et. seq. ("Title VII") against his employer, the New York State Department of Taxation and Finance ("DTF"), on the grounds that it discriminated against him by subjecting him to a hostile work environment due to his race, color and national origin and retaliated against him for his complaints about the alleged discrimination. Defendants have moved for summary judgment on all of the plaintiff's claims. For the following reasons, defendant's motion is granted.
Plaintiff originally asserted claims against his former supervisors, John Schlissel, Steven Berger, Sam Cohen, Charles Dave and William Emslie, pursuant to 42 U.S.C. § 1983 and the New York Human Rights Law. However, on September 6, 2000, these claims were dismissed by Order of this Court.
BACKGROUND
Ogbo, who is Nigerian and describes himself as Black, has been employed by the DTF since February 28, 1991. Currently a Tax Auditor I, his duties include performing audits, preparing reports and schedules and meeting with taxpayers. From early on in his employment, Ogbo received feedback from his various supervisors to the effect that he had difficulties successfully performing his job duties. Pursuant to DTF policy, Ogbo received interim reviews at the six month point in the year and a final review annually. For the first half of his employment, Ogbo received unsatisfactory, or the equivalent, interim reviews, but always managed to receive a satisfactory review by the end of the year. However, in 1996, Ogbo began to receive all unsatisfactory reviews. This is of particular significance since, pursuant to DTF policy, employees who receive a final review of unsatisfactory are denied their in-grade salary increases. The following is an overview of plaintiff's reviews during his tenure at DTF:
Pursuant to DTF policy, employees receive a final performance review annually in addition to an interim review every six months. Supervisors may also provide "counseling" or other memoranda to employees who are having problems on the job. Counseling memoranda are designed to apprise an employee of a problem and advise him or her of possible solutions. Employees may chose to respond to these reviews in different ways. They may formally appeal a final performance review, and the DTF will investigate and issue a finding. However, if an employee objects to an interim review, he or she may not appeal but may file a rebuttal memorandum, which will be placed in the employee's file. Alternatively, an employee may file a grievance with the Government Office of Employee Relations ("GOER") who will hold a hearing and issue a determination. If the employee does not agree with GOER's decision, the employee may take the issue to arbitration.
Date Interim Review Final Review
1992-1993 "effective but needs substantial "effective" improvement"
1993-1994 "unsatisfactory" "satisfactory"
1994-1995 "effective but needs substantial "satisfactory" improvement"
1995-1996 "unsatisfactory" "satisfactory"
1996-1997 "unsatisfactory" "satisfactory"
1997-1998 "unsatisfactory" "unsatisfactory"
1998-1999 "unsatisfactory" "unsatisfactory"
1999-2000 [not reviewed] "unsatisfactory"
Ogbo appealed his performance evaluation on the grounds that he had not received an interim evaluation and that his work performance was satisfactory. He won this appeal on the procedural ground that he had not received an interim evaluation.
The shift of Ogbo's final reviews from satisfactory to unsatisfactory coincided with the appointment of Jon Schlissel as plaintiff's supervisor, a fact that did not go unnoticed by the plaintiff. Plaintiff has blamed Schlissel, who was his supervisor from 1996 to 1998, for issuing the unsatisfactory reviews as well as for issuing various "counseling" and other memoranda to the plaintiff over the course of his employment. In fact, it appears that Schlissel was not the only supervisor to issue a counseling memoranda to Ogbo as he received eight memoranda from 1995 to 2000 in which his supervisors complained about missed deadlines, submission of erroneous waivers, incorrect computation of taxes, failure to prepare adequately for a field appointment, and auditing with errors and conflicting recommendations.
Plaintiff received these memoranda over a period of four years from a different supervisors. The date and supervisor who issued the memoranda is as follows: November 15, 1995 from Claxton; September 10, 1996 from Schlissel; August 4, 1997 from Berger; September 17, 1997 from Schlissel; October 15, 1997 from Schlissel; February 23, 1998 from Berger (the Unit Head); May 28, 1999 from William Emslie; and June 23, 2000 from Bifulco.
Ogbo took advantage of DTF's grievance procedures and completed numerous, and often lengthy, appeals, grievances and rebuttals, many which focused on Schlissel, in which he complained that he was being singled out and picked on, that trivial mistakes were being blown out of proportion and that Schlissel harbored a personal dislike for him that translated into harassment and discriminatory behavior. Although many of these complaints alleged vaguely that Schlissel or another supervisor was discriminatory, Ogbo never said, in writing at least, that he believed that the alleged discrimination was racially motivated. In fact, the tone of many of the complaints suggested that the discrimination was based on Schlissel's personal dislike of him. For example, on October 7, 1996, plaintiff wrote, in a rebuttal memorandum in response to Schlissel's Job Performance Memo dated September 10, 1996, that,
It is arbitrary, discriminatory, unfair and unjustifiable to propose a rating of Unsatisfactory, using a hastily prepared performance program prepared five months into the evaluation period . . . Since you are now spying on me, making cynical, scornful remarks, frequently harassing me without causes, I believe it is cynical, scornful remarks, frequently harassing me without causes, I believe it is proper for me to ask to be transferred to another team.See Schlissel Aff. Ex. H. And, on April 7, 1997, plaintiff responded to Schlissel's remarks on his final evaluation for the period 1996 to 1997. In that two page memo, plaintiff wrote,
Your statement: "He is careless with numbers . . . uses poor judgment . . . disorganized . . . the narratives are not clear," Mistakes were mainly insignificant and negligible. But Supervisor documents every one of them, however trivial . . . Supervisor does not maintain such records for any other Auditor in the Team. All this clearly shows that supervisor was arbitrary, and he held auditor to a higher level of standard.
Schlissel Aff. Ex. B. On Setember 24, 1997, in response to a September 17, 1997 memo regarding Ogbo's tardiness, Ogbo accused Schlissel of "digging whatever dirts that he considers necessary just to damage [his] record." Ogbo Aff. Ex. 3. On October 20, 1997, Ogbo filed a grievance challenging a Counseling Memo dated October 15, 1997 in which he wrote, "Mr. Schlissel is harassing me . . . Instruct Mr. Schlissel to cease the harassment immediately." Ogbo Aff Ex. 4. Ogbo also drafted a memo in response to this Counseling Memorandum in which he stated, "My overall work performance does not continue to contain too many errors. Team Leader makes this allegation to justify his quest for damaging evidence. Who else in my team has a daily log of errors, needless to talk about the entire office? This is unfair and discriminatory." Ogbo Aff. Ex. 6.
GOER sustained Ogbo's grievance as it found that the Counseling Memorandum issued by Schlissel did not specify the "manner in which the employee will seek to improve performance" nor was it sufficiently "supportive and factual." Schlissel Aff. Ex. M. GOER also stated that it did not find evidence to support plaintiff's allegations of harassment by Schlissel, however, it stated that "[i]f however, the grievant has reason to believe that he is being harassed or discriminated against because of his ethnic background, he can file a complaint with the Division of Human Rights or the EEOC when are the appropriate agencies for handling such matters." Id
Although Ogbo did not write in any of his responses that he believed that he was subject to discrimination due to his membership in a protected class, Ogbo now contends that he did state at the GOER hearings regarding his October 20, 1997 grievance that Schlissel was "harassing and discriminating against [him] because of [his] national origin." Ogbo Aff. ¶ 41.
DFT took further action in response to Ogbo's poor work performance in 1998 when it initiated proceedings to suspend Ogbo for four weeks. On July 30, 1998, Stuart Hefter, the Director of the Audit Division, sent the plaintiff a "Notice of Discipline," that informed Ogbo that he may be suspended without pay for four weeks as he had made an entry on a Field Audit Record claiming that he called the taxpayer on a particular date to reschedule an appointment when in fact the had not called the taxpayer on that date and for his long history of poor work performance. The notice stated,
Specifically you failed to satisfactorily conduct audits. This includes your repeated failure to conduct satisfactory pre-audit analysis, failure to satisfactorily conduct field audits, failure to timely submit audits for review with proper tax determinations, failure to satisfactorily monitor statute of limitation for obtaining taxpayer waivers, and your repeated failure to prepare audit reports and that are clear, accurate, legible, and supportive of audit findings.
Ogbo Aff. Ex. 15. Attached to the notice were ten examples of problems that Ogbo had with specific taxpayers from 1997 to 1998. In response to the notice, Ogbo filed a challenge that was scheduled to be heard by an arbitrator. However, prior to the arbitration date, Ogbo (who was represented by counsel) entered into a settlement agreement with DTF in which he agreed to a two week suspension. See Cohen Aff. Ex. L.
In 1998, DTF transferred Ogbo to a new supervisor, William Emslie, but plaintiff also accused Emslie of bias and unfair behavior. In a Memorandum dated April 20, 1999, plaintiff complained about his evaluation for the period 1998 to 1999, stating that "Mr. William Emslie, obviously, is merely conforming to Mr. Schlissel, Mr. Berger and Mr. Cohens' established patterns of ignoring whatever performance improvements and progress I have made, but is quick to underscore any deficiency however trivial." Ogbo Aff. Ex. 19. Plaintiff was transferred for a second time to supervisor Matthew Bifulco in 1999, and once again he continued to complain. On March 20, 2000, he appealed his final performance evaluation of unsatisfactory for the period of 1999 to 2000, Matthew Bifulco, complaining that the "allegations in the evaluation are false." Cohen Aff. Ex. I.
Ogbo appealed that review and the appeal is still pending. See Cohen Aff. Ex. G.
Although plaintiff did not refer to it in his numerous complaints described above, plaintiff now contends that Schlissel verbally abused him by calling him a variety of unpleasant names including "dummy," "stupid," "asshole," "horse's ass" and "incompetent." Additionally plaintiff claims that Schlissel made several comments regarding plaintiff's national origin, including: describing him as "that foreigner who speaks with an awful accent" on July 29, 1996; telling him that if he did not like his evaluation that "he should go back to his country" on March 27, 1998; telling him that he "should go back to his country" on April 1998, August, 17, 1998, September 1998. See Ogbo. Dep. at 101, 105; Ogbo Aff. ¶ 13, 47.
Plaintiff alleges that these insults occurred on the following dates: April 19, May 2, May 3, July 29, September 2, 1996; April 4, August 4, August 28, and September 17, 1997; and September 18, 1998. P. Reply Br. at 10. In his affidavit, the dates are slightly different such as August 1 and September 27 of 1997 instead of August 4 and September 17 of that year.
On March 19, 1999, plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") in which he claimed that DTF retaliated against him because he submitted a discrimination complaint against DTF. After he received a right to sue letter, he brought this action on September 1, 1999.
DISCUSSION
I. Standard of Review on Summary Judgment
Summary judgment is appropriate where there are no disputed issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Libery Lobby, Inc., 477 U.S. 242, 247-52(1986); Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995). On a motion for summary judgment, the moving party has the burden of demonstrating the absence of any genuine issue of material fact. See Adickes v. S.H Kress Co., 398 U.S. 144, 157(1970). But, a party opposing a motion for summary judgment must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586(1986). Rather the party must enumerate "specific facts and circumstances supported by deposition, affidavits based on personal knowledge, and admissions," and cannot rely on conclusory allegations or denials. General Elec. Co. v. New York State Dep't of Labor, 936 F.2d 1448, 1452 (2d Cir. 1991). Moreover, a scintilla of evidence in support of the non-moving party's position is not sufficient to oppose successfully a summary judgment motion. Instead, "there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 250, 106 S.Ct. at 2511.
II. Retaliation
Plaintiff asserts that DTF retaliated against him for his complaints about his supervisors' discrimination by unlawfully suspending him without pay for two weeks in November, 1999 and by denying him in-grade salary increases for evaluation periods ending in 1998, 1999, and 2000 when he received a final review of unsatisfactory.
Title VII provides that "[i]t shall be unlawful employment practice for an employer to discriminate against any of his employees . . . because [an employee] has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. 2000e-3(a). To establish a prima facie case of retaliation, a plaintiff must show "(1) [he] was engaged in an activity protected under Title VII; (2) the employer was aware of plaintiff's participation in the protected activity; (3) the employer took adverse action against the plaintiff; and (4) a causal connection existed between the plaintiff's protected activity and the adverse action taken by the employer." Raniola v. Bratton, 243 F.3d 610, 624 (2d Cir. 2001). "Once a prima facie case of retaliation is established, the burden of production shifts to the employer to demonstrate that a legitimate, nondiscriminatory reason existed for its action." Id. at 625. If the employer is able to satisfy this burden, then the burden shifts back to the plaintiff to establish "through either direct or circumstantial evidence, that the employer's action was, in fact, motivated by discriminatory retaliation." Id. At this point, the "presumption completely drops out of the picture [and] the employer will be entitled to summary judgment . . . unless plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." James v. New York Racing Association, 233 F.3d 149, 154 (2nd Cir. 2000). In other words, "a case under Title VII becomes like any other case in that the plaintiff, in order to prevail, must have evidence from which the factfinder can reasonably find the essential elements of the claim." Id.
As an initial matter, it is not clear that plaintiff engaged in protected activity. Plaintiff submits that his rebuttals dated October 7, 1996, April 7, 1997 and November 14, 1997 in addition to his grievance, dated October 16, 1997, constituted protected activity. However, in none of these documents (nor in any other that this Court has seen) did plaintiff allege that he believed that he was being discriminated against due to his race, color, or national origin. Although plaintiff did allege that he was subject to "discrimination," he did not specify that it was discrimination based on his membership in a protected class, and, in fact, the context suggested that he he believed that Schlissel in particular had singled him out due to personal dislike. Plaintiff does assert, however, that he complained at a hearing that Schlissel discriminated against him due to his national origin. Construing the facts in the light most favorable to the plaintiff, I find that his claims of "discrimination" and "harassment" in addition to his alleged statement at the hearing are sufficient to make out this prong of the prima facie test. I also find that, as the plaintiff alleges that he made these claims in a GOER hearing and in the many memoranda he sent to his superiors, defendant was aware of the plaintiff's complaints. Thus, the second prong is satisfied also.
As for the third prong, plaintiff has suffered an adverse employment action. An adverse employment action is a "materially adverse change in the terms and conditions of employment." Galabya v. New York City Bd of Ed., 202 F.3d 636, 640 (2d Cir. 2000). While a negative evaluation without more is not an adverse employment action for these purposes, see Valentine v. Standard Poor's, 50 F. Supp.2d 262, 283 (S.D.N.Y. 1999) ("Negative evaluations alone, without any accompanying adverse result, however, are not cognizable."), the attendant denial of a salary increase is. Furthermore, plaintiffs two week suspension also constitutes an adverse change in employment status.
Defendant alleges that, because plaintiff consented to the two week suspension by entering into the settlement agreement, the suspension cannot constitute an adverse employment action. However, viewing the facts in the light most favorable to the plaintiff, I will consider the suspension a adverse employment action.
The more difficult issue is whether plaintiff satisfies the fourth prong — a causal connection between his unsatisfactory reviews, with the attendant salary impact, and his suspension, and his complaints. In support of a finding of such a connection, plaintiff refers the Court to a series of e-mails and other correspondence between his supervisors, managers and the DTF's Office of Labor Relations claiming that they "began to antagonize and subject him to undeserved disciplinary actions and unfair treatment following his complaint of discrimination." Pl. Opp. at 14. However, after a thorough review of these materials, all I find is communication between managers regarding how best to deal with a problem employee. This consideration is understandable, particularly given the fact that Ogbo was prone to complain about almost every negative evaluation or memorandum that he received. Thus, as plaintiff is unable to show a causal connection existed, he has failed to make out even a prima facie case of retaliation.
However, assuming arguendo that plaintiff did satisfy his initial burden, his claim merely fails at a later point. DTF could scarcely have a more solid foundation for its asserted legitimate business reason that plaintiff's job performance was woefully lacking. Defendants have produced a long history of underwhelming performance reviews and counseling memoranda that document in detail Ogbo's problems. These documents echo a common theme that Ogbo was frequently tardy, careless in his work, insubordinate, unwilling to admit his mistakes but quick to blame others, and untimely with his work product. And, in fact, Ogbo's responses to these concerns are also significant, as they serve to demonstrate that he was concerned mostly with pointing the finger elsewhere than with considering the critiques as a guide to his own improvement.
Having produced this legitimate business reason, the burden shifts back to the plaintiff. In an effort to carry his burden, plaintiff claim in a conclusory fashion that he was treated differently from other employees. He states, "[g]iven the evidence on the record showing the national origin discriminatory aminus exhibited by Schlissel towards plaintiff, there can be no reasonable explanation, other than the plaintiff's nationality, why Schlissel would compile such a record, solely with respect to the plaintiff." Pls. Opp. at 9. What plaintiff conveniently overlooks in this statement is the possibility that he was targeted and monitored closely because of his long history of poor work performance. In fact, considerable evidence supports the conclusion that the plaintiff was subject to intensive supervision because of these problems. The following description contained in Schlissel's 1997 to 1998 performance review of the plaintiff is telling:
Plaintiff also points to the fact that he won an appeal that challenged the unsatisfactory evaluation rating he received for the evaluation period ending February 2000. This does not support the plaintiff's claim, however, given that victory was based on a procedural error, namely that the supervisor had failed to provide him with a mid-year review. Furthermore, this supports DTF's position that it was responding to plaintiff's concerns and not simply acting in a retaliatory manner.
At his deposition, plaintiff was unable to come up with any evidence that connected his evaluations and the resulting suspension and loss of pay to his various grievances and appeals. When asked what the connection was, Ogbo responded, "I can't recollect." Rubenstein Aff. Ex. A.
[Ogbo] has over six years of experience in the field of Corporation Tax and should not require a level of supervision currently needed. Numerous times during this evaluation period, the team leader has met with the auditor to discuss his unsatisfactory work performance. Deficiencies in performance were identified and suggestions for improvements were offered . . . Despite having these performance deficiencies identified [Ogbo] had little to say during these counseling sessions other than to maintain that there was no problem with his work performance. Improvement in work performance can not begin until [Ogbo] acknowledges that improvement is needed.
Thus, it was Ogbo's work performance, rather than his complaints about any discrimination, that spawned his supervisors reviews, memoranda and monitoring. I must therefore conclude that plaintiff has failed to carry his burden with regard to this claim, and it must be dismissed.
III. Hostile Work Environment
Plaintiff claims that he was subjected to a hostile work environment by being "excessively counseled, disciplined, scrutinized, monitored and subjected to a higher standard of performance evaluation than similarly situated employees."
Under Title VII, a hostile work environment is one form of disparate treatment on the basis of "race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1). The issue in a hostile work environment claim is whether, considering the work environment as a whole it can be found to be "abusive." See Raniola, 243 F.3d at 617. A work environment is "abusive" "when harassment has reached a certain qualitative level that is sufficiently severe or pervasive [so as] to alter the conditions of the victim's employment." Id. (internal quotation marks omitted). To show that a plaintiff was subjected to discrimination by virtue of a hostile work environment, he or she must ultimately prove "conduct (1) that is `objectively' severe or pervasive — that is, [conduct that] creates an environment that a reasonable person would find hostile or abusive [the `objective' requirement], (2) that the plaintiff `subjectively perceive[s] as hostile or abusive [the `subjective' requirement], and (3) that creates such an environment because of plaintiff's [membership in a protected class]." See Brown v. Henderson, ___ F.3d ___ 2001 WL 827855, (2d Cir. July 24, 2001) (internal quotations omitted). Moreover, "[i]n racial harassment cases, the incidents complained of must be "more than an episodic pattern of racial antipathy . . . A hostile working environment is shown when the incidents of harassment occur either in concert or with a regularity that can reasonably be termed pervasive." See Garcia v. West, 2001 WL 527419 (S.D.N.Y. May 14, 2001) (citing Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1189 (2d Cir. 1987)). Furthermore, `[t]o sustain a Title VII claim under a hostile work environment theory, plaintiff must present evidence of racially vicious epithets, physically threatening or humiliating actions, or a pattern of such reprehensible behavior over an extended period of time." See Castro, 964 F. Supp. at 728.
Here, plaintiff asserts in conclusory fashion that "Schlissel, other DTF's [sic] supervisors or managers and its Labor Relations Office knew and/or actively participated to create a hostile work environment for plaintiff." Pl. Opp. Mem. at 11. Unfortunately, plaintiff offers next to nothing to support this claim. Plaintiff primarily hangs his hat on the assertion that Schlissel made approximately five comments in which he insulted Ogbo's accent and suggested that he return to his country. Plaintiff also alleges, also for the first time in his deposition and his affidavit, that Schlissel cursed at him and insulted him with names like "horse's ass" and "dummy."
Viewed objectively, plaintiff's bald assertions that Schlissel made these five comments over a two year period are insufficient to show a pervasive, abusive environment that permeated plaintiff's workplace so that it altered the conditions of his employment. Thus plaintiff has failed to meet the first prong of showing that a reasonable person would have found the work environment intolerable. Plaintiff has also failed to introduce evidence as to how the alleged comments effected him in particular. See Leibovitz v. New York City Transit Auth., 252 F.3d 179 ("There is also no sexual harassment [specifically hostile work environment] without a showing of adverse effect on the "terms and conditions" of employment."). Thus, he fails the second prong. Moreover, the fact that plaintiff never mentioned any cursing, insults or comments implicating his national origin in his numerous memoranda to DTF that exhaustively detailed Schlissel's "harassment" of him, casts considerable doubt on the veracity of these claims. Finally, as to plaintiffs allegations that Schlissel cursed and insulted him, plaintiff has not met his burden of showing that these alleged comments were motivated by discrimination, a necessary ingredient since an abusive workplace, without more, is not actionable under Title VII.
Thus, as plaintiff has simply failed to make out any of the necessary prongs to support a claim of hostile work environment discrimination, this claim must be dismissed.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is granted, and the Clerk is instructed to close the case.