Summary
granting employer summary judgment on claim where "only specific relevant conduct alleged" was supervisor's "endorsement of a racial epithet" and "purely conclusory" allegations about disparate treatment
Summary of this case from Batista v. Waldorf AstoriaOpinion
No. 02 Civ. 5159 (RJH).
September 1, 2004
OPINION
Plaintiffs Barbara Thomas ("Thomas"), John Arceo ("Arceo"), and Nelson Cintron ("Cintron") (collectively "plaintiffs") brought this action against their current employer, the New York City Health and Hospitals Corporation ("HHC"), and their former supervisor, former HHC employee Frank Taormina ("Taormina") (collectively "defendants"), alleging hostile work environment, disparate treatment, and retaliation in violation of 42 U.S.C. §§ 1981 and 1983; New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYHRL"); and the New York City Human Rights Law contained in Article 8 of the New York City Administrative Code ("NYCHRL"). Defendants moved for summary judgment, and also moved to strike three of the declarations submitted by plaintiffs in opposition to the motion for summary judgment. Defendants' motion to strike is denied, and their motion for summary judgment is granted in part and denied in part, for the reasons set forth below.
Prior to filing this action, plaintiff Thomas filed a verified complaint on or about March 12, 1999 with the New York State Division of Human Rights, and another on or about March 22, 1999 with the City of New York Commission on Human Rights, complaining about some of the incidents alleged in the instant complaint. (Declaration of Asst. Corp. Counsel Abigail Goldenberg in Support of Defendants' Motion for Summary Judgment ("Goldenberg Decl. ¶ ____"), Exs. K-L.) Plaintiff Cintron filed a verified complaint on or about March 12, 1999 with the State of New York Division of Human Rights regarding one of the incidents at issue here. ( Id. at Ex. FF.) Because the New York State legislature has enacted an "election of remedies" provision that limits the ability of individuals to bring suit based on violations of the Human Rights Law, Thomas' and Cintron's claims under this law are barred to the extent that they repeat allegations brought in their complaints to the local human rights commissions. The election of remedies provision reads in relevant part:
Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages . . . unless such person had filed a complaint hereunder or with any local commission on human rights . . . provided that, where the division has dismissed such complaint on the grounds of administrative convenience, on the grounds of untimeliness, or on the grounds that the election of remedies is annulled, such person shall maintain all rights to bring suit as if no complaint had been filed with the division. . . . A complaint filed by the equal employment opportunity commission to comply with the requirements of 42 U.S.C. § 2000e-5(c) and 42 U.S.C. § 12117(a) and 29 U.S.C. § 633(b) shall not constitute the filing of a complaint within the meaning of this subdivision.
N.Y. EXEC. LAW § 297(9) (McKinney 1993). The import of this provision has been succinctly articulated in prior case law: "[A] person claiming to be aggrieved by an unlawful discriminatory practice may seek relief either from a court of appropriate jurisdiction or from the [New York State Division of Human Rights] or any local commission on human rights, but not both." Clements v. St. Vincent's Hosp. Med. Ctr., 919 F. Supp. 161, 164 (S.D.N.Y. 1996); see Moodie v. Fed. Reserve Bank, 58 F.3d 879, 882-83 (2d Cir. 1995) (citing Marine Midland Bank, N.A. v. New York State Div. of Human Rights, 75 N.Y.2d 240, 245, 552 N.Y.S.2d 65, 66, 551 N.E.2d 558, 559 (1989); Pan Am. World Airways, Inc. v. New York State Human Rights Appeal Bd., 61 N.Y.2d 542, 548, 475 N.Y.S.2d 256, 259, 463 N.E.2d 597, 600 (1984). The election applies equally to HRL claims brought in New York courts and to such claims brought as pendent claims in federal courts. See Collins v. Mfrs. Hanover Trust Co. 542 F. Supp. 663, 672-73 (S.D.N.Y. 1982). The election of remedies restriction does not affect claims brought under federal law.
BACKGROUND
Unless otherwise noted, the following facts are not in dispute. All three plaintiffs are non-white, and are and were at all periods relevant to this action employed as security officers at Jacobi Medical Center ("Jacobi"), a hospital operated by HHC, a public corporation. (Defs.' 56.1 ¶¶ 6, 38, 51.) On or about March 10, 1998, Taormina, who is white, became the Director of Hospital Security at Jacobi, and was plaintiffs' supervisor until he left this position on or about October 8, 2002. (Taormina Decl. ¶ 1.) Plaintiffs allege that they were subjected to disparate treatment, harassment, a hostile work environment, and unlawful retaliation at the hands of Taormina because of their race, skin color, or ethnicity.
The facts are drawn from the following documents, and are cited as indicated herein: Defendants' Local Civil Rule 56.1 Statement of Undisputed Material Facts ("Defs.' 56.1 ¶ ____"); Defendants' Annotated Statement of Facts ("Defs.' Ann. ¶ ____"); Declaration of Frank Taormina ("Taormina Decl. ¶ ____"); Declaration of Asst. Corp. Counsel Abigail Goldenberg in Support of Defendants' Motion for Summary Judgment ("Goldenberg Decl. ¶ ____") and attached exhibits; Plaintiffs' Rule 56.1 Statement ("Pls.' 56.1 ¶ ____"); Declaration of Michael G. O'Neill ("O'Neill Decl. ¶ ____") and attached exhibits; Declaration of Barbara Thomas ("Thomas Decl. ¶ ____"); Declaration of John Arceo ("Arceo Decl. ¶ ____"); Declaration of Nelson Cintron ("Cintron Decl. ¶ ____"); Declaration of Jesus Roman ("Roman Decl. ¶ ____"); Declaration of Jonathan Muniz ("Muniz Decl. ¶ ____"); and Declaration of Eunice Rodriguez ("Rodriguez Decl.").
Barbara Thomas
Thomas, an African-American woman, has been employed by HHC since about October 9, 1990, and was working as a security officer at Jacobi at the time that Taormina became Director of Hospital Security. (Defs.' 56.1 ¶ 6.) She had had no disciplinary problems or unsatisfactory performance evaluations prior to being supervised by Taormina. (Thomas Decl. ¶ 4.) During Taormina's tenure as her supervisor, however, three workplace incidents convinced Thomas that Taormina was discriminating against her because of her race. The first was a verbal altercation between the two on December 10, 1998, arising out of a criminal summons Thomas issued to a Jacobi elevator operator who had allegedly assaulted her and called her a racially offensive name. (Defs.' 56.1 ¶¶ 8-10.) Taormina was unhappy with the form of the summons or the procedure by which Thomas had obtained it, and directed Thomas to void it. ( Id. at ¶ 12.) A heated argument ensued, during which Taormina, upon hearing that the elevator operator had called Thomas a "black bitch," allegedly said, "I agree." ( Id. at ¶ 11.) As a result of this exchange, Thomas was suspended from duty and charged with insubordination and falsification of legal documents. ( Id. at ¶¶ 14-15.) The Office of Labor Relations at Jacobi held a disciplinary proceeding against Thomas on January 13, 1999, at which both Thomas and Taormina testified and at the conclusion of which the hearing officer recommended that Thomas be terminated. ( Id. at ¶¶ 18-20.) Thomas appealed that recommendation to the City of New York Office of Administrative Trials and Hearings ("OATH"). ( Id. at ¶ 21.) Pursuant to that appeal, a trial was held on April 7, 2000 at which Thomas was represented at trial and proffered testimony on her own behalf ( Id. at ¶ 22.) The presiding Administrative Law Judge ("ALJ") issued a report and recommendation dated June 3, 1999, finding that Thomas had improperly refused to comply with her commanding officer's lawful order and had been insubordinate and verbally abusive, and recommending as a penalty a 15-day suspension. (Goldenberg Decl. Ex. H at 14-15.) The ALJ noted that Thomas' misconduct "would warrant a lengthy suspension despite her unblemished employment record," but that "her supervisor's misbehavior" ( i.e., Taormina's being "the first to elevate the volume and hostility level of the discussion, particularly by endorsing the racial epithet"), was a "mitigating factor." ( Id. at 13, 15.) The Office of Labor Relations accepted the ALJ's recommendation, and on or about April 18, 2000, the HHC's Personnel Review Board affirmed the determination on appeal by Thomas. (Defs.' 56.1 ¶¶ 25-26.)
During the period that Thomas' disciplinary charges were being processed, Thomas filed complaints with the New York State Division of Human Rights and the New York City Commission of Human Rights in connection with the December 10 incident. ( Id. at ¶ 27-28.)
The second incident involving Thomas arose when Thomas developed an infected ulcer on her foot that required her to visit the emergency room at Jacobi on or about February 25, 2001. (O'Neill Decl. Ex. B at 67, Ex. F.) Thomas subsequently went on medical leave. In a letter dated August 22, 2001, Taormina informed Thomas that since Jacobi's records "indicate that you have been absent . . . since February 26, 2001," Thomas would have to submit a doctor's note indicating prognosis and date of return to work, or else she would be subject to disciplinary action. (Goldenberg Decl. Ex. M.) Thomas failed to respond to the August 22 letter as required (Goldenberg Decl. Ex. N), although it appears that she had submitted regular "Reports of Continued Disability" to her union during her absence from work, and that each of these forms were signed, stamped and dated by a Jacobi payroll office employee (O'Neill Decl. Ex. F). On or about October 1, 2001, Thomas was charged with Absence Without Official Leave ("AWOL") (Goldenberg Decl. at Ex. O), and in a letter from HHC's Office of Labor Relations ("OLR") dated October 3, 2001, Thomas was directed to contact her department head within three days to explain and document the reason for her absence ( Id. at Ex. P). Thomas "failed to contact the [OLR] and/or her department regarding her AWOL status." (Goldenberg Decl. Ex. N.) On November 1, 2001, the OLR held a disciplinary conference on the AWOL charge, after which the hearing officer recommended that Thomas be suspended for 30 work days. ( Id. at Ex. N.) Thomas appealed that recommendation to OATH, but the matter was resolved without a decision on or about January 6, 2004, when Thomas reached an agreement with her employer to serve a suspended five-day suspension on the AWOL charge. (Defs.' 56.1 ¶ 35; Trans. of oral argument, July 14, 2004, 22:19-23:10.) Plaintiffs allege that the AWOL charge in 2001 was Taormina's retaliation against Thomas for complaining to the New York State Division of Human Rights in March 1999 about Taormina's conduct during the December 10, 1998 incident. (Thomas Decl. ¶ 15.)
The third incident involving Thomas is the change in her tour of duty at Jacobi in early 2001 from the graveyard shift to the day shift. (Defs.' 56.1 ¶ 36; Pls.' 56.1 ¶ 36.) Plaintiffs allege that the tour change was Taormina's further retaliation against Thomas for complaining about Taormina's conduct during the December 10, 1998 incident. (Thomas Decl. ¶ 15; Goldenberg Decl. Ex. D at 103-105.)
John Arceo
Arceo, a self-identified minority (Arceo Decl. ¶¶ 22-23) who has worked as a security officer at Jacobi since on or about June 4, 1984 (Defs.' 56.1 ¶ 38), cites three incidents as supporting his claim of employment discrimination. The first incident occurred on or about March 11, 1999, after Arceo participated (with plaintiff Cintron) in the arrest of a patient at Jacobi. (Defs.' 56.1 ¶ 40.) After the incident, Arceo was served with disciplinary charges for, among other things, failing to void Cintron's arrest of the patient so that Taormina had to void it himself, and insubordination for failing to submit a written statement to Taormina about the incident. ( Id.) The disciplinary charges were all withdrawn and the charges dismissed, upon the unwillingness of one witness to testify and a memo from Taormina to the hearing officer requesting that the charges be dismissed "based on new information received." (Goldenberg Decl. Ex. S.) Arceo filed a grievance with his union about Taormina's "abusive and threatening behavior" immediately after the incident, when Taormina allegedly cursed at him in front of other employees. (O'Neill Decl. Ex. CC.)
The second incident was a change in Arceo's tour of duty in or around 1998. (Defs.' 56.1 ¶ 43.) While Arceo's union filed a grievance about the change on his behalf, the grievance was later withdrawn because Arceo was "comfortable on his new tour and [did] not wish to have any further disruption of his lifestyle." (Goldenberg Decl. Ex. U.) Plaintiffs allege that the tour change was Taormina's retaliation against Arceo for reporting on "incompetence and inappropriate behavior" by another employee whom Taormina favored. (Arceo Decl. ¶ 10.)
The third incident arose out of a performance evaluation received by Arceo for the April 1998 to April 1999 period. Taormina wrote a memo dated April 13, 1999, to Arceo's immediate supervisor, Lt. Jesus Roman ("Roman"), informing Ramon that he found the evaluation Roman had prepared for Arceo "unacceptable" because in it Roman gave Arceo an overall grade of "outstanding," while in Taormina's view (in light of some complaints Arceo had received) a grade of "unsatisfactory" was "a much more accurate evaluation of his performance." (O'Neill Decl. Ex. P.) Roman refused to accede to this instruction. (Roman Decl. ¶ 3.) In a memo with a June 1999 date, Taormina's assistant told Roman that "Frank [Taormina] said give Arceo a satisfactory evaluation, he has been doing good work." ( Id. at Ex. Q.) Subsequently, Arceo apparently received an evaluation with a "satisfactory" grade, signed by Roman, Taormina, and Arceo. ( Id. at Ex. R.) Arceo did not file an objection to this evaluation rating. (Defs.' 56.1 ¶ 48.)
Nelson Cintron
Cintron, a Hispanic man who has worked for HHC as a security officer since on or about January 2, 1979 and had never had any disciplinary charges brought against him prior to being supervised by Taormina (Cintron Decl. ¶ 21), cites as evidence of discrimination several instances in which Taormina brought disciplinary action against him. First, in an incident on March 11, 1999 incident referred to above, Cintron arrested a patient who had assaulted him in the psychiatric ward. (Defs.' 56.1 ¶ 53-54; Cintron Decl. ¶¶ 7-9.) Taormina wanted the arrest voided, and a dispute ensued over the propriety of the arrest. (Taormina Decl. ¶ 13; Cintron Decl. ¶¶ 10-13.) According to Cintron and a then-coworker who witnessed the incident, Taormina acted in a physically aggressive way toward Cintron during this incident and said, "I am going to take to take your job, you fucking Spic." (Cintron Decl. ¶ 10-11; Muniz Decl. ¶¶ 6-7.) Taormina denies having made this statement. (Taormina Decl. ¶ 14.) Cintron was later charged with eight disciplinary offenses resulting from this incident (Defs.' 56.1 ¶ 58.). A hearing was held on the charges ( Id. at ¶ 59), and during the hearing and pending the decision, Cintron was suspended without pay (Cintron Decl. ¶ 15). Cintron pled no contest to the charges for the "sole reason" that "I was not receiving any salary during the time I was out," and after pleading no contest "I would then immediately return to work with pay." ( Id. at ¶ 16.) Cintron received a penalty of a 27-calendar day suspension. (Defs.' 56.1 ¶ 60.) Cintron filed a complaint with the internal Inspector General's Office of Jacobi about the incident. (Cintron Decl. 17.)
Two more charges were preferred against Cintron in mid-2000, accusing him of falsifying his time sheet and acting insubordinately by refusing his supervisor's order to turn over his memo books. (Defs.' 56.1 ¶ 62-63.) Cintron was found guilty after a hearing and a 30-day suspension was recommended. ( Id. at ¶ 64.) A third set of charges was served on Cintron on or about August 23, 2000, in which he was charged with abandonment of post, failure to follow procedure, and being AWOL. ( Id. at ¶ 67.) Cintron was found guilty of two of the charges after a hearing, and the hearing officer recommended that he be terminated. ( Id. at ¶¶ 68-69.) Cintron appealed both decisions to OATH, and ultimately entered into a stipulation with HHC pursuant to which he pled guilty to some of the charges and agreed to a 20-day suspension. ( Id. at ¶¶ 66, 71.) Cintron believes that the 2000 disciplinary charges were brought against him as retaliation for the March 11 incident and the complaint that Cintron filed regarding Taormina's conduct during that incident. (Cintron Decl. ¶ 17.)
In addition to the disciplinary charges, Cintron cites his tour change in or around March 1999 as another instance of harassment by Taormina, who denied Cintron's request not to be changed even though the change would pose a hardship. ( Id. at ¶¶ 4-6.) Cintron alleges that Taormina's treatment of him was racially motivated. ( Id. at ¶ 21.)
DISCUSSION
Before examining the parties' arguments and evidentiary submissions in support of and opposition to the summary judgment, the court must resolve issues raised by defendants as to the scope of the allegations and the evidence that the court may consider in deciding this motion.A. Motion to Strike
Defendants move, pursuant to Rule 37(c)(1) of the Federal Rules of Civil Procedure, to strike the declarations of non-parties Jesus Roman, Jonathan Muniz, and Eunice Rodriguez, which plaintiffs submitted in opposition to the summary judgment motion. Rule 37(c)(1) provides that "[a] party that without substantial justification fails to disclose information required by Rule 26(a) [of the Federal Rules of Civil Procedure] . . . is not, unless such failure is harmless, permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed." Fed.R.Civ.P. 37(c)(1); see Commercial Data Servers, Inc. v. Int'l Bus. Machs. Corp., 262 F. Supp. 2d 50, 61 (S.D.N.Y. 2003). Rule 26(a) requires, inter alia, that each party to an action provide other parties with "the name . . . of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses." Fed.R.Civ.P. 26(a)(1)(A).
In support of their argument, defendants submit a portion of a transcript of a pretrial conference with the court purportedly demonstrating plaintiff's violation of the court's directive. However, the transcript makes clear that plaintiffs did make disclosure pursuant to Rule 26(a)(1). (Transcript of Conference before Hon. Shira A Scheindlin, July 29, 2003 (Trans."), 12:18-20.) Defendants wanted to know which of the seventeen individuals identified by plaintiffs would likely provide declarations at the summary judgment stage, so that defendants would know which individuals to depose. (Trans. 13:5-9.) The court twice advised defendants' counsel to ask plaintiffs' counsel which of the seventeen he would use. (Trans. 15:7-8, 16-18.) The court also directed defendants' counsel to tell plaintiffs' counsel who would provide declarations. (Trans. 16:3.)
Defendants do not allege either that the three individuals whose declarations are at issue were not disclosed in plaintiffs' 26(a)(1) materials or that plaintiffs' counsel refused to provide information reasonably sought by defendants. They merely argue that the court ordered plaintiff to specifically identify which of the individuals already disclosed would supply declarations. This, they argue, "would allow defendants to depose these individuals." (Defs.' Mem. of Law in Supp. of Their Mot. to Strike, at 2.) Yet, as the court pointed out at the pretrial conference, defendants were not prevented from deposing identified non-party witnesses (Trans. 13:10-11), and they were repeatedly encouraged to ask plaintiffs' counsel whom to depose. Judging solely by this transcript, the court can only conclude that defendants' counsel omitted to ask plaintiffs' counsel to narrow down his list, and that plaintiffs' counsel failed to do so unprompted. The apparent neglect of both sides on this matter does not rise to the level of noncompliance with a court order, and does not justify the court's exclusion of evidence submitted by plaintiff; the court therefore declines to do so. This motion is denied.
B. Waiver and Claim Preclusion
Some of the incidents alleged in the complaint involving plaintiffs Thomas and Cintron were the subject of an "Improper Practice Petition" filed in or around December 1999 against HHC, Jacobi, and Taormina by plaintiffs' union on behalf of Thomas, Cintron, and other HHC employees. (Goldenberg Decl. Ex. A.) This petition was withdrawn and the claims settled by stipulation in or around September 2001. ( Id. at Ex. B.) The stipulation provided, in part:
An Improper Practice Petition is a complaint that alleges violations of the New York City Collective Bargaining Law, New York City Administrative Code tit. 12, ch. 3, by those bound by it, e.g., a public employer. It is filed with the Board of Collective Bargaining. N.Y.C. ADMIN. CODE § 12-306.
The Union hereby waives any rights which it may have had heretofore and agrees not to bring action whether at law, in equity, or in any other proceeding arising by virtue of the Rules and Regulations, the New York City Collective Bargaining Law, the collective bargaining agreement or any statute which they many have or which they may have had heretofore in connection with the underlying matters set forth in [the Improper Practice Petition].
( Id. at 2.) According to defendants, this provision operates as a waiver to preclude plaintiffs "from asserting any action at law, even a federal claim such as the one at bar, which arose in connection with the underlying matters." (Defs.' Mem. at 13.)
Defendants' argument is unpersuasive for several reasons. First, while defendants are correct when they state that a waiver can operate to preclude assertions of federal claims based on transactions or occurrences that were the subjects of the waiver, this rule does not apply to the instant case. Defendants cite Abramson v. Pennwood Investment Corp., 392 F.2d 759 (2d Cir. 1968), in support of their contention, but this case is clearly distinguishable for the reason that the waiver in that case was included in a settlement submitted as a proposal to the state court, which appointed a referee, held a hearing, and entered judgment finding the proposed settlement fair and reasonable and affirming it in all respect. Abramson v. Pennwood, 392 F.2d at 761. Essential to the Abramson court's decision was the fact that the state court had approved the release of the claim; the court held that "the state court determination that the settlement was fair and reasonable is binding on appellant." Id. at 762. Courts that have followed Abramson have consistently identified the state court adjudication as necessary to a waiver's preclusive effect. See, e.g., TBK Partners, Ltd. v. Western Union Corp., 675 F.2d 456, 460 (2d Cir. 1982) ("[W]e have recognized the authority of a state court to approve a settlement that releases a claim within the exclusive jurisdiction of the federal courts."); Gabelli v. Sikes Corp., No. 90 Civ. 4904, 1990 WL 213119, at *5 (S.D.N.Y. Dec. 14, 1990) ("The Second Circuit has explicitly held that although a state court cannot adjudicate a federal claim, it is within its powers to approve the release of that claim as a condition of settlement of the state action."). There is nothing in the record to suggest that the Improper Practice Petition was ever submitted to, much less approved by, any tribunal, and therefore the court finds no legal basis for finding plaintiffs' federal claims waived by this settlement.
A second problem with defendants' argument is that the waiver contained in the stipulation purports to bind only the union. Defendants cite Monahan v. New York City Department of Corrections, 10 F. Supp. 2d 420 (S.D.N.Y.), aff'd, 214 F.3d 275 (2d Cir. 2000), for the proposition that "it is well settled that union members are in privity with their union, and prior settlement by that union precludes litigation of the same issues." (Defs.' Mem. at 13.) Assuming for the sake of argument that a decision that has not been overseen by a court may have preclusive effect in federal court — and both Abramson and Monahan indicate that it may not, see Monahan, 214 F.3d at 285-86 — the claims at issue in the instant action are not of the kind that a union's waiver may preclude. The Supreme Court has stated that "an employee's rights under Title VII are not susceptible of prospective waiver." Alexander v. Gardner-Denver Co., 415 U.S. 36, 51-52, 94 S. Ct. 1011, 1021 (1974). In so holding, the Court distinguished between the interests underlying the union's role as "collective-bargaining agent to obtain economic benefits for union members" and "individual's right to equal employment opportunities" protected by Title VII. Gardner-Denver, 415 U.S. at 51. The Second Circuit has read Gardner-Denver to extend beyond Title VII to apply to other federal statutory rights. Rogers v. New York Univ., 220 F.3d 73, 75 (2d Cir. 2000). Because the court finds that the union was operating in its capacity as collective-bargaining agent when it entered into the stipulation settling the petition, that stipulation cannot operate as a waiver of the federal or state law claims plaintiffs bring here to vindicate their individual rights.
Finally, while an employee may be able to expressly waive statutory discrimination claims as part of a voluntary settlement of a grievance procedure initiated under a collective bargaining agreement, any such waiver must be "voluntary and knowing." Gardner-Denver, 415 U.S. at 52, fn 15. Contrary to defendants claim (Defs.' Reply Mem. at 4), there is no express waiver of discrimination claims in the stipulation of settlement signed by the union. Furthermore, since discrimination claims were not asserted in the union's improper practice position and the plaintiffs herein did not execute the stipulation of settlement or participate in settlement discussions, there is no evidence that any implied or imputed waiver was knowing and voluntary.
C. Statute of Limitations
Defendants assert that the three-year statutes of limitations applicable to 42 U.S.C. §§ 1981 and 1983, as well as to plaintiff's state law claims, bar claims for events that occurred more than three years before the filing of the complaint on February 13, 2002. They contend that the allegations regarding the December 10, 1998 incident involving Thomas are therefore time-barred. Plaintiffs respond that the claim regarding the December 10, 1998 incident is not barred for two reasons: first, because it falls within the continuing-violation exception, which exempts claims from the time limit when they are part of an ongoing "policy or mechanism" of discrimination. Butts v. City of New York Dep't of Hous., Pres. Dev., 990 F.2d 1397, 1404 (2d Cir. 1993); and second, because the Supreme Court has held, in an opinion issued this term, that certain employment discrimination claims arising under the Civil Rights Act of 1991's amendment to section 1981 are now subject to the four-year federal "catch-all" statute of limitations rather than to the analogous state statute. Jones v. R.R. Donnelley Sons Co., 124 S. Ct. 1836, 1846 (2004).
The court does not concur with plaintiffs that a "policy or mechanism" of discrimination has been shown here, since plaintiffs allege only discrete acts that the Supreme Court in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002), held do not constitute a continuing violation. Under settled Second Circuit law, employment actions such as "discriminatory transfers, job assignments and non-promotions, and failures to compensate adequately" are discrete, isolated discriminatory acts that do not constitute a continuing violation. Bailey v. Synthes, 295 F. Supp. 2d 344, 354 (S.D.N.Y. 2003). Tour changes and disciplinary actions such as those alleged by plaintiffs would fall under this rubric as well, since "several incidents of discrimination, even if similar, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation." Vernon v. Port Auth. of N.Y. and N.J., 154 F. Supp. 2d 844, 851 (S.D.N.Y. 2001) (citing Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993)). Whether Taormina's position at HHC gave him, as plaintiffs would have it, a "final decision making authority" is irrelevant to this point, since the acts alleged do not constitute a policy or mechanism, no matter what their provenance.
The Supreme Court's decision in R.R. Donnelley is significantly more persuasive as to the viability of Thomas' section 1981-based claims than a continuing-violation argument. Although R.R. Donnelley pertained to petitioners' claims of hostile work environment, wrongful termination, and failure to transfer, the rule articulated therein applies to all claims made cognizable under section 1981 by the 1991 Act's amendment thereto. As the R.R. Donnelley Court recounts, the 1991 Act overturned Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989), which had held that "racial harassment relating to the conditions of employment is not actionable under § 1981." Patterson, 491 U.S. at 171; R.R. Donnelley, 124 S. Ct. at 1846 (emphasis in original). The 1991 Act expanded the remedial scope of section 1981's crucial "make and enforce contracts" language to encompass the "termination of contracts and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b). The generality of the language clearly suggests that allegedly discriminatory adverse employment actions of all scope would also be covered, and therefore would be subject to the four-year statute prescribed in R.R. Donnelley. None of plaintiffs' claims based on section 1981 are time-barred. D. HHC's Liability under §§ 1983 and 1981
Neither side has briefed or adduced evidence as to the tolling implications of plaintiff Thomas' filing of complaints with the New York State Division of Human Rights and the New York City Commission of Human Rights regarding the December 10 incident. Subject to certain exceptions, the filing of such complaints tolls the three-year statute of limitations on claims filed under the New York State Human Rights Law and the New York City Human Rights Code. Martinez-Tolentino v. Buffalo State Coll., 277 A.D.2d 899, 899, 715 N.Y.S.2d 554, 555 (4th Dep't 2000); N.Y.C.P.L.R. 204(a); N.Y.C. Code § 8-502. Since her state law claims are barred by the "election of remedies" statute, see note 1 supra, the court declines to determine whether the non-federal claims are tolled.
Plaintiffs have alleged that both HHC and Taormina in his official and individual capacities are liable under 42 U.S.C. § 1983. In order to establish a section 1983 claim against a municipal corporation such as HHC, plaintiffs "must prove that the constitutional wrong complained of resulted from [HHC's] official policy, custom, ordinance, regulation, or decision." Rookard v. Health and Hosps. Corp., 710 F.2d 41, 45 (2d Cir. 1983) (citing Monell v. Dep't of Social Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). "Under Monell, a municipality may not be held liable under § 1983 simply for the isolated unconstitutional acts of its employees." Curry v. City of Syracuse, 316 F.3d 324, 330 (2d Cir. 2003). An exception to this rule occurs when the act complained of constitutes a decision made by an individual who possessed "final policymaking authority in the particular area involved." Perks v. Town of Huntington, 251 F. Supp. 2d 1143, 1163 (E.D.N.Y. 2003) (citing Supreme Court and Second Circuit authority).
The logic of plaintiffs' case for Monell liability of HHC based on the allegedly unconstitutional acts of Taormina is difficult to follow. The argument appears to run that Taormina created an unofficial policy within the security department at Jacobi of mistreating and harassing minority employees. Although Taormina is the only person at HHC who is alleged to have participated in this alleged policy, his very actions set policy because, plaintiffs contend, he is a policymaker. However, plaintiffs have offered no evidence to suggest that Taormina "possesse[d] final authority to establish municipal policy with respect to the action ordered," Pembaur v. City of Cincinnati, 475 U.S. 469, 481-82, 106 S. Ct. 1292, 1299 (1986), nor that Taormina "established a policy fairly attributable to the municipality," Rookard v. Health and Hosps. Corp., 710 F.2d 41, 45 n. 3 (2d Cir. 1983). The undisputed evidence as to the job responsibilities of the Director of Security at Jacobi demonstrates that while the job entails responsibility for the "day to day operation of the Hospital Police Department" and "latitude for independent judgment and initiative," the only involvement the Director of Security has in policy is to "assess Department's current Policies/Procedures and recommend systemic changes where appropriate." (O'Neill Decl. Ex. DD.) It is well settled that "[t]he fact that a particular official — even a policymaking official — has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion." Pembaur, 475 U.S. at 482-83 (citing Okla. City v. Tuttle, 471 U.S. 808, 822-24, 105 S. Ct. 2427, 2435-2436 (1985)). Since Taormina is not a policymaking official, there is no basis for concluding that Taormina's acts, assuming for the moment that they are unconstitutional, would make HHC liable under section 1983.
Furthermore, as defendants point out, section 1983 provides the "exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against a state actor." Jett v. Dallas Ind. Sch. Dist., 491 U.S. 701, 735, 109 S. Ct. 2702, 2723 (1989). Absent section 1983 liability pursuant to Monell and its progeny, HHC cannot be held liable under section 1981. HHC is entitled to summary judgment as to both the section 1981 and the section 1983 claims against it.
The fact that Taormina's actions cannot give rise to Monell liability does not imply a bar against holding Taormina liable in his individual capacity under sections 1981 and 1983. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." Feingold v. New York, 366 F.3d 138, 159 (2d Cir. 2004) (quoting West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988). Municipal employees acting in the performance of their duties are considered to be acting under color of state law, see Burtnieks v. City of New York, 716 F.2d 982, 986 (2d Cir. 1983), and may be held liable, subject to qualified immunity. State actors sued in their individual capacity may be immune from liability only if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Luna v. Pico, 356 F.3d 481, 490 (2d Cir. 2004) (quoting Wilson v. Layne, 526 U.S. 603, 614, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999)). Since the right to be free from racial discrimination and harassment in the workplace is clearly established and widely recognized, Taormina would not be entitled to immunity and could be held liable if he were found to have committed such acts against plaintiffs.
E. Liability under NYHRL and NYCHRL
The contours of liability under state and local law differ from those under federal law. The NYHRL makes it unlawful "[f]or an employer . . ., because of the age, race, creed, color, national origin, sexual orientation, military status, sex, disability, genetic predisposition or carrier status, or marital status of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment." N.Y. Exec. Law § 296(1)(a). The NYCHRL makes it unlawful for an "employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, sexual orientation or alienage or citizenship status of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment." N.Y.C. Admin. Code § 8-107(1). While the NYCHRL clearly provides for liability not only of an employer, but also for "an employee or agent thereof," the NYHRL's reference only to "employer" has been read to provide for a more limited scope of liability. See Murphy v. ERA United Realty, 251 A.D.2d 469, 471 (2d Dep't 1998). Under the NYCHRL, Taormina could clearly be held liable if found to have engaged in discriminatory actions against plaintiffs; under the NYHRL, however, direct liability can be imposed on an employee only if he is shown to have an ownership interest in the employer or "any power to do more than carry out personnel decisions made by others." Patrowich v. Chem. Bank, 63 N.Y.2d 541, 473 N.E.2d 11, 483 N.Y.S.2d 659 (1984). Courts in this circuit have generally regarded the second prong of the Patrowich liability test as covering "only supervisors who, themselves, have the power to hire and fire employees," Perks, 251 F. Supp. 2d at 1160 (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995)). However, given that the claims in this action deal not with allegations of unlawful hiring or firing practices, but primarily with disciplinary and other personnel actions which Taormina himself initiated, Taormina may be held liable under section 296(1) of the NYHRL if found to have violated plaintiffs' rights, since his power in the area of employee discipline evidently transcends mere implementation of others' decisions when it comes to initiating discipline.
By contrast, however, and for substantially the same reasons that HHC cannot be held liable under the federal statutes, HHC is not subject to liability under the state or municipal causes of action. No unlawful policy or practice on the part of HHC has been alleged or shown, and "an employer cannot be held liable for an employee's discriminatory acts [under state and city law] unless the employer became a party to it by encouraging, condoning, or approving it." Duviella v. Counseling Serv. of E. Dist. of New York, No. 00-CV-2424, 2001 WL 1776158, at *16 (E.D.N.Y. Nov. 20, 2001) (quoting Ponticelli v. Zurich Am. Ins. Group, 16 F. Supp. 2d 414, 433 (S.D.N.Y. 1998) (alteration in original). No evidence of encouragement, condonation, or approval has been adduced. Accordingly, HHC is entitled to summary judgment as to the claims under NYHRL and NYCHRL.
Both the NYHRL and the NYCHRL provide, in identical language, for employee liability under an aiding or abetting theory. See N.Y. Exec. Law § 296(6), N.Y.C. Admin. Code § 8-107(6) ("It shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or to attempt to do so."). However, under New York law, "liability must first be established as to the employer/principal before accessorial liability can be found as to an alleged aider and abettor." DeWitt v. Lieberman, 48 F. Supp. 2d 280, 293 (S.D.N.Y. 1999) (citing Murphy v. ERA United Realty, 674 N.Y.S.2d 415, 417 (2d Dep't 1998).
As defendant HHC is entitled to have all claims against it dismissed based on the foregoing analyses, the court now proceeds to consider the arguments for summary judgment as to defendant Taormina.
F. Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997) (quoting Fed.R.Civ.P. 56(c)). In reviewing the record, the district court must assess the evidence in "a light most favorable to the nonmoving party" and resolve all ambiguities and "draw all reasonable inferences" in its favor. Am. Cas. Co. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
An alleged factual dispute between the parties will not by itself defeat a motion for summary judgment, since "the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis in original). In order to defeat such a motion, the non-moving party must affirmatively set forth facts showing that there is a genuine issue for trial. Id. at 256; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). "A fact issue is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 248). "A fact is `material' if it might affect the outcome of the suit under governing law." Id. (quoting Anderson, 477 U.S. at 248).
The Second Circuit has cautioned against granting summary judgment in a discrimination case when the employer's intent is in question. "Because direct evidence of an employer's discriminatory or retaliatory intent will rarely be found, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (quoting Gallo v. Prudential Residential Servs., 22 F.3d 1210, 1224 (2d Cir. 1994)) (citations and internal punctuation omitted). However, even where an employer's intent is in issue, "purely conclusory allegations of discrimination, absent any concrete particulars, are insufficient" to defeat a motion to dismiss. Cameron v. Cmty. Aid for Retarded Children, Inc., 335 F.3d 60, 63 (2d Cir. 2003) (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)). "[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Pocchia v. NYNEX Corp., 81 F.3d 275, 280 (2d Cir. 1996)) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995) and citing cases).
G. Merits of the Claims
1. Hostile Work Environment
Hostile work environment claims are cognizable under 42 U.S.C. §§ 1981 and 1983. Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000); Meckenberg v. New York City Off-Track Betting, 42 F. Supp. 2d 359, 384 (S.D.N.Y. 1999). The standards for evaluating employment discrimination claims brought under state and city human rights laws are the same as those employed in assessing federally-based claims. Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996); Tomka, 66 F.3d at 1304 n. 4. To establish a hostile work environment claim, a plaintiff mush show that "the workplace is permeated with discriminatory intimidation, ridicule, and insult . . . sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment," Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L.Ed.2d 295 (1993) (internal quotations omitted), and "must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were `sufficiently continuous and concerted' to have altered the conditions of her working environment," Cruz, 202 F.3d at 570 (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). "As a general rule, incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive." Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003) (quoting Alfano v. Costello, 294 F.3d 365, 374 (2d. Cir. 2002)). See also Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) ("[C]onduct must be extreme to amount to a change in the terms and conditions of employment, and the Courts of Appeals have heeded this view.") Moreover, when a race-based hostile work environment claim is made, the plaintiff must offer evidence that the conduct at issue was prompted by plaintiff's race. Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 440 (2d Cir. 1999) (citing Carrero v. New York City Hous. Auth., 890 F.2d 569, 580 (2d Cir. 1989)).
The Supreme Court has prescribed a "totality of the circumstances" inquiry for determining whether a hostile work environment exists. Factors to be considered include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23, 114 S. Ct. at 371. The Harris Court also noted that determining whether a work environment is hostile requires both an objective and a subjective inquiry. Id. at 22.
Taking the totality of the circumstances into account, the court finds that the evidence offered by plaintiffs does not create an issue of triable fact as to the existence of a hostile work environment. It is true that the record evidences that Taormina could be antagonistic to those with whom he worked, and both parties have presented evidence that Taormina had problems controlling his anger. (Rodriguez Decl. ¶¶ 4-6; Goldenberg Decl. Ex. H, at 13, 15.) Further, Taormina allegedly expressed racial hostility on two occasions. Nevertheless, viewing the evidence in a light most favorable to plaintiffs, plaintiffs do not create a fact issue as to whether Taormina's conduct toward plaintiffs created a workplace that was permeated with discriminatory animus sufficiently severe to alter the conditions of plaintiffs' employment.
Plaintiffs allege that Taormina endorsed one racial epithet made about Thomas and uttered one toward Cintron. However, they do not allege that Thomas was aware of Taormina's comment toward Cintron prior to this litigation, nor that Cintron knew of Taormina's ratification of the offensive comment toward Thomas, nor in fact that Arceo was aware of either comment. While hostile acts need not be addressed directly to an employee or even conducted in her presence in order to give rise to a hostile work environment, there must be evidence that the employee knew about the acts if a hostile work environment claim is to survive summary judgment. Torres v. Pisano, 116 F.3d 625, 633 (2d Cir. 1997); see also Gibson v. Jacob K. Javits Convention Center of N.Y., No. 95 Civ. 9728, 1998 WL 132796 (Mar. 23, 1998) (plaintiff must allege awareness of allegedly offensive conduct in order to survive motion to dismiss). Accordingly, the hostile work environment claims of each plaintiff shall be evaluated separately.
Barbara Thomas
The first alleged act of racial hostility occurred during the December 10, 1998 episode during which Taormina allegedly endorsed the elevator operator's calling Thomas a "black bitch." Thomas further testifies that after Taormina changed her tour, she "suffered severe stress as he harassed me during that time by following me around and constantly insulting me. His conduct made my work environment very hostile and stressful." (Thomas Decl. ¶ 16.) Finally, she asserts, "I never witnessed [Taormina] subjecting the Caucasian officers to the same harassment and discriminatory treatment as the minority officers." (Thomas Decl. ¶ 18.) Plaintiffs do not allege that Taormina's conduct after the tour change had a racial aspect. The Second Circuit has unambiguously stated that only conduct prompted by plaintiff's race contributes to a hostile work environment claim. See Richardson, 180 F.3d at 440; see also Alfano, 294 F.3d at 374 (cautioning that it is "important in hostile work environment cases to exclude from consideration personnel decisions that lack a linkage or correlation to the claimed ground of discrimination"). Moreover, Thomas' allegation about disparate treatment is purely conclusory, and does not specifically identify any harassment of other minority officers that would contribute to her hostile work environment claim. Therefore, the only specific relevant conduct alleged by Thomas is Taormina's endorsement of a racial epithet.
Plaintiffs also submit declarations from non-parties, who allege that (1) "[t]o the best of my knowledge and upon information I have received from officers under my supervision Frank Taormina treats the minority officers different" (Roman Decl. ¶ 5); (2) "I have witnessed Mr. Taormina's volatile behavior only towards minority employees" (Rodriguez Decl. ¶ 6); and (3) that "I have received several complaints from various minority officers regarding Frank Taormina's inappropriate and unprofessional behavior" ( Id. at ¶ 7). The statements of the non-party declarants are not even admissible to the extent that they are not based on personal knowledge and constitute hearsay. Even if they were fully admissible, however, the statements would need to be supported by citations to specific instances of disparate or abusive treatment of minority employees in order to create a genuine issue of material fact from which a reasonable factfinder could conclude that plaintiffs' workplace was "permeated with discriminatory intimidation, ridicule, and insult." See Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) (finding no genuine issue of material fact where plaintiff failed to offer "concrete particulars" as to alleged discrimination).
Plaintiffs have cited no precedent, and the court can find none, for the proposition that a single or even a few racial epithets uttered in a context like the one presented here would suffice to create a hostile work environment. See Schwapp, 118 F.3d at 110 ("For racist comments, slurs, and jokes to constitute a hostile work environment . . . there must be a steady barrage of opprobrious racial comments."). Discriminatory conduct must be severe or pervasive for such an environment to arise. The Second Circuit has repeatedly stated that incidents of harassment "must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive." Perry, 115 F.3d at 149; accord Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998), Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986). On the other hand, a single incident of harassment can establish a hostile work environment if it is severe enough. See Tomka, 66 F.3d at 1305 (finding rape of plaintiff by three coworkers sufficiently severe to alter working conditions and constitute actionable discrimination). Although "there is neither a threshold `magic number' of harassing incidents that gives rise, without more, to liability as a matter of law, nor a number of incidents below which a plaintiff fails as a matter of law to state a claim," Richardson, 180 F.3d at 439 (citing Harris, 510 U.S. at 22), as a general rule, isolated instances of racially hostile name-calling and offensive remarks alone are ordinarily not severe enough to alter the conditions of employment.
One case in which a single incident of verbal harassment was found to create a hostile work environment, Howley v. Town of Stratford, 217 F.3d 141 (2d Cir. 2000), is clearly distinguishable. In that case, the critical incident occurred at a meeting of the firefighters' benevolent association, of which plaintiff was a member. At the meeting, a subordinate of plaintiff launched into a vicious and obscene tirade against her before the assembled group, in which he called plaintiff a series of vituperative and sexually explicit names and graphically suggested that she had performed sexual acts in order to attain her position as a lieutenant in the fire department. The court, in finding that plaintiff's hostile work environment claim should not have been dismissed on summary judgment found relevant the length and volume of the diatribe and the number of witnesses; it also noted:
in an occupation whose success in preserving life and property often depends on firefighters' unquestioning execution of line-of-command orders in emergency situations, the fomenting of gender-based skepticism as to the competence of a commanding officer may easily have the effect, among others, of diminishing the respect accorded the officer by subordinates and thereby impairing her ability to lead in the life-threatening circumstances often faced by firefighters.Id. at 154.
Cases construing hostile work environment claims have distinguished Howley on its facts, and in particular on its reliance on the adverse impact of the incident on the plaintiff's ability to lead. See Wood v. Sophie Davis Sch., No. 02 Civ. 7781, 2003 WL 22966288, at *8 (S.D.N.Y. Dec. 15, 2003) (distinguishing Howley because "[i]n this case, not only is plaintiff not in a profession where absolute obedience and respect is crucial, but [plaintiff's] statement was not nearly as violent, accusatory, and graphic as was the tirade in Howley"); O'Dell v. Trans World Entm't, 153 F. Supp. 2d 378, 387 (S.D.N.Y. 2001) (distinguishing Howley on the ground that plaintiff had not alleged, and no evidence had been adduced, that her credibility or authority had been impugned or tarnished). Likewise, in this case, plaintiffs have not alleged or shown that Taormina's endorsement of the racial epithet regarding Thomas was sustained or graphic, nor crucially that his conduct affected Thomas' working conditions. Therefore, there is nothing to set these allegations apart from the cases finding that "mere utterance of an epithet which engenders offensive feelings in an employee does not sufficiently affect the conditions of employment" to give rise to a hostile work environment. Harris, 510 U.S. at 21 (citations and internal punctuation omitted). See Lopez v. S.B. Thomas, 831 F.2d 1184, 1189 (2d Cir. 1987) (finding no hostile work environment when the main incident alleged involved plaintiff's supervisor "burst[ing] into degrading and lewd obscenities directed toward him"); Stembridge v. City of New York, 88 F. Supp. 2d 276, 286 (S.D.N.Y. 2000) (seven incidents, including two instances of racial epithets uttered by supervisors toward plaintiffs, over three years do not establish a hostile work environment); Carter v. Cornell Univ., 976 F. Supp. 224, 232 (S.D.N.Y. 1997) (six race-related disparaging comments over three years do not create a hostile work environment) Williams v. Port Auth. of N.Y. N.J., 880 F. Supp. 980, 991-92 (S.D.N.Y. 1995) (five racial slurs uttered by supervisors in plaintiff's presence over the course of two years did not establish hostile work environment); Pagan v. New York State Div. of Parole, No. 98 Civ. 5840, 2003 WL 22723013, at *6 (S.D.N.Y. Nov. 18, 2003) (finding that four instances of racially derogatory remarks by supervisor in the span of several months did not amount to a hostile work environment).
In finding that plaintiff Thomas has failed to raise a triable issue of fact as to whether Taormina's conduct created a hostile work environment, the court is mindful that the Second Circuit regards expressions of racial hostility by an employee's supervisor as especially pernicious. It has frequently cited dicta from the Seventh Circuit in support of this position. That court affirmed the district court's finding that a supervisor's use of a racial epithet contributed to a hostile work environment, even though the plaintiff himself and other employees also used that word in the workplace. In so holding, the court said, "Perhaps no single act can more quickly `alter the conditions of employment and create an abusive work environment' than the use of an unambiguously racial epithet . . . by a supervisor in the presence of his subordinates." Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 2405 (1986)) (citation omitted). Notably, the Rodgers court affirmed the district court's finding that the employer maintained a hostile work environment based on several racially hostile acts, rather than a "single act." Of the courts in this district and in the Second Circuit that have cited Rodgers approvingly on this point, this court can find none which has found that a supervisor's use or, as in this case, endorsement of a racial slur regarding the plaintiff on one occasion created a genuine issue of material fact as to whether the plaintiff was subjected to a hostile work environment.
There is no reason in this case to disturb the well-settled "line between `sporadic racial slurs' and a `steady barrage of opprobrious racial comments,'" Pimentel v. City of New York, No. 00 Civ. 0326, 2001 WL 1579553, at *9 (S.D.N.Y. Dec. 11, 2001) (quoting Schwapp, 118 F.3d at 110) (summary judgment granted in full on reconsideration, see Pimentel v. City of New York, 2002 WL 977535, at *1 (S.D.N.Y. May 14, 2002)), that marks the boundary between viable and non-viable hostile work environment claims. The court in Pimentel used the facts in Richardson to exemplify this line: plaintiff Richardson had brought suit complaining of a hostile work environment in two correctional facilities at which she worked. The trial court denied summary judgment as to Richardson's claims about the environment at Auburn Correctional Facility, where she was subjected to frequent racist speech from her supervisors, but granted summary judgment as to her claims about the environment at Cayuga Correctional Facility, where plaintiff alleged fifteen incidents of harassment, only three of which involved racial slurs. Pimentel, 2001 WL 1579553, at *9. The court finds that Taormina's conduct toward Thomas falls into the clearly delineated area in which a hostile work environment cannot as a matter of law be established.
John Arceo
Arceo has not alleged having witnessed or even learned of any conduct by Taormina that would give rise to a hostile work environment claim. His allegations involve several run-ins with Taormina that he claims were prompted by Taormina's antipathy toward him, but he does not allege that that antipathy is due to his race. Rather, Arceo states that Taormina acted in retaliation for reports Arceo filed against other officers, and for a grievance he filed against Taormina. While Arceo alleges a belief that "Taormia [sic] targeted myself and the other plaintiffs because we were minorities" (Arceo Decl. ¶ 22), states that "I never witnessed him subjecting the Caucasian officers to the same harassment and discriminatory treatment as the minority officers" ( Id.), and asserts that "[a]ny minority officers he [Taormina] did not subject to such conduct and behavior, was because there were some minority officers which were favorable to Taormina in that, they never with [sic] him and took part in his harassment of other minorities" ( Id. at ¶ 23), these allegations are of the vague, conclusory, and argumentative sort that will not suffice as a matter of law to prove discrimination or harassment. The allegation that "Taormina's behavior was abusive subjected [ sic] me to a great deal of stress" that required Arceo to seek mental health assistance ( Id. at ¶ 24) will not save Arceo's claim, since it is well settled that incidents showing that a supervisor disliked an employee and was rude or unfair to him do not, without more, prove a claim of hostile work environment. See Manessis v. New York City Dep't of Transp., No. 02 Civ. 359, 2003 WL 289969, at *5-8 (S.D.N.Y. Feb. 10, 2003).
Nelson Cintron
Cintron alleges that Taormina called him a racially offensive name and acted in a physically threatening manner toward him during the events of March 11, 1999. This incident appears more serious than that involving Thomas, because of the physical intimidation involved and the fact that the epithet was allegedly voiced directly by Taormina rather than merely endorsed by him. However, looking at the totality of the circumstances in the light most favorable to Cintron, the court is unable to say that these distinctions can, as a matter of law, constitute a difference that would render this single incident severe enough to create a hostile work environment. The expression of racial hostility, while despicable, was not protracted or graphic as in Howley. Further, Cintron has not alleged or shown that Taormina's slur altered the conditions of his employment so as to justify the court's deviation from the line of cases finding sporadic use of racial comments by supervisors insufficient to create a hostile work environment.
Cintron alleges that following the March 11, 1999 incident, Taormina brought further disciplinary charges to harass him and that Taormina's use of a racial slur showed that Taormina's alleged harassment was race-related. It is well settled, however, that if an incident is not sufficient to create a hostile work environment, then it cannot ground an inference that other facially race-neutral incidents had a discriminatory motivation. Manessis, 2003 WL 289969, at *8 (citing Alfano, 294 F.3d at 377; Pimentel, 2001 WL 1579553, at *10).
Because the evidence is insufficient to raise a triable issue of fact, summary judgment is granted as to each of the plaintiffs' hostile work environment claims.
2. Discrimination and Retaliation Claims
In employment discrimination and retaliation cases, courts apply the three-step burden-shifting analysis set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). See Terry, 336 F.3d at 138, 141. According to this three-step analysis, the plaintiffs are first required to make out a prima facie case. To establish a prima facie case of employment discrimination, the plaintiffs must show 1) membership in a protected class, 2) qualification for the position and/or satisfactory job performance, 3) an adverse employment action, and 4) that the adverse employment action was taken under circumstances giving rise to an inference of unlawful discrimination. Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001); Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997); Thornley v. Penton Publ'g, Inc., 104 F.3d 26, 30 (2d Cir. 1997).
While McDonnell Douglas and Burdine involved claims brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., courts have held that discrimination and retaliation claims brought under 42 U.S.C. §§ 1981 and 1983 follow the same analysis. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S. Ct. 2742, 2747 (1993) (assuming that the McDonnell Douglas framework applies to § 1983 employment discrimination claims); Sorlucco v. New York City Police Dep't, 888 F.2d 4, 7 (2d Cir. 1989) (applying Title VII analysis to employment discrimination claims brought under § 1983); Hudson v. Int'l Bus. Machs. Corp., 620 F.2d 351, 354 (2d Cir. 1980) (applying Title VII framework to discrimination claims under § 1981); Taitt v. Chem. Bank, 849 F.2d 775, 777 (2d Cir. 1988) (applying McDonnell analysis to retaliation claims brought under § 1981); Domenech v. City of New York, 919 F. Supp. 702, 706 (S.D.N.Y. 1996) (applying McDonnell Douglas to retaliation claim brought under § 1983).
"To establish a prima facie case of retaliation, an employee must show (1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action." Terry, 336 F.3d at 141 (citing Quinn, 159 F.3d at 769 (internal punctuation omitted).
Second, once plaintiffs have made out their prima facie case, defendant Taormina must articulate some legitimate and nondiscriminatory or non-retaliatory reason for his action. McDonnell Douglas, 411 U.S. at 802-03, 93 S. Ct. at 1824. Third, the burden ultimately shifts back to plaintiffs, who must produce evidence sufficient to raise an issue of fact as to whether Taormina's justification was merely a pretext for discrimination or retaliation. Quinn, 159 F.3d at 769; McDonnell Douglas, 411 U.S. at 807, 93 S. Ct. at 1827.
a. Discrimination Claims
The test for a prima facie case of discrimination is not intended to be difficult to meet. Mandell v. County of Suffolk, 316 F.3d 368, 378 (2d Cir. 2003); Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001). Here, plaintiffs easily satisfy the first two prongs of the test. First, all of them, as non-white, are members of a protected class. Second, they all have had long careers with HHC with few disciplinary problems between them before Taormina's arrival at Jacobi, and therefore have shown that their job performance has been satisfactory.
Some of the incidents plaintiffs allege constitute adverse employment actions, particularly the disciplinary proceedings brought against Thomas and Cintron, inasmuch as those proceedings resulted in unpaid suspensions. See Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999) ("Adverse employment actions include . . . reduction in pay, and reprimand"). Others, including the tour changes, the charges filed but later withdrawn against Arceo, and Arceo's "satisfactory" performance evaluation, do not constitute adverse employment actions. An adverse employment action is a "materially adverse change in the terms and conditions of employment," Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal citations omitted), which "must be more disruptive than a mere inconvenience or an alteration of job responsibilities." Patrolmen's Benevolent Assoc. v. City of New York, 310 F.3d 43, 51 (2d Cir. 2002). Plaintiffs have not alleged any incidents involving Arceo that can, in isolation, be considered adverse employment actions. While the Second Circuit has recognized the possibility that "a combination of seemingly minor incidents" can satisfy this prong if they "reach a critical mass," Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002), a plaintiff alleging an adverse employment action that is not among the actions judicially recognized as coming under this rubric "must show that (1) using an objective standard; (2) the total circumstances of her working environment changed to become unreasonably inferior and adverse when compared to a typical or normal, not ideal or model, workplace." Id. Even when viewed in the light most favorable to him, Arceo has not shown that he suffered an adverse employment action from the combination of the tour change, the withdrawn disciplinary charge, and the "satisfactory" rating. Accordingly, Arceo's discrimination claim is dismissed.
While the showing is not strong, plaintiffs Thomas and Cintron have adduced evidence from which a reasonable factfinder could infer discrimination. Most of plaintiffs' allegations lack substantiation, are merely conclusory and speculative, and cannot create an inference of discrimination. Plaintiffs state, for example, that Taormina's conduct toward Thomas was racially motivated; but aside from the statement cited in Section F(1) supra, the record contains only unsubstantiated assertions to support this claim, namely Thomas' statements during her deposition that Taormina hadn't "done it to any Caucasians that we have there," "every single incident has been with a minority," "he ha[d] not done it to any other people except for minorities and the other Caucasians, he didn't bother them at all," and "he didn't like me and I'm African American." (Goldenberg Decl. Ex. D at 96, 108.) Similarly, Cintron testified in his deposition that he believed Taormina's actions were discriminatory because "[Taormina's] white and I'm Hispanic." (Goldenberg Decl. Ex. W at 60.) These conclusory statements cannot form the basis of a prima facie case of discrimination. However, Thomas has alleged that Taormina verbally ratified another's use of an offensive racial remark toward her, and Cintron has alleged that Taormina directed a loathsome racist epithet toward him. Such acts have been found to create an inference of discrimination. See de la Concha v. Fordham Univ., 5 F. Supp. 2d 188, 192 (S.D.N.Y. 1998) (finding an inference of discrimination created when supervisor used racial slurs such as "spic" toward employee).
Plaintiffs Thomas and Cintron having adduced facts creating an inference of discrimination, and thereby having made out a prima facie case, the burden shifts to Taormina to articulate legitimate, non-discriminatory reasons for the alleged adverse employment actions. This he has done. Thomas was charged with and ultimately found guilty of being AWOL, based upon her eight-month absence and after she had been sent multiple written warnings that her absence was being treated as AWOL. (Defs.' 56.1 ¶¶ 29-34.) Disciplinary charges were brought against Cintron on three separate occasions, and each set of charges was enumerated and explained in each Notice and Statement of Charges served on Cintron. ( Id. at ¶¶ 58, 62, 67.) Cintron pled no contest to all but two of the thirteen charges. ( Id. at ¶¶ 60, 66, 71.)
Since defendant has produced legitimate, non-discriminatory justifications for the adverse employment actions, it falls to plaintiffs to show that an unlawful discriminatory reason played a motivating role in Taormina's conduct. Bickerstaff v. Vassar Coll., 196 F.3d 435, 446-47 (2d Cir. 1999); see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 2752 (1993). As has been noted, the evidence of such motivation may be modest. However, in light of the racial animus expressed in abhorrent remarks directed toward Thomas and Cintron during the incidents that gave rise to the adverse actions taken against them, the court cannot say as a matter of law that no reasonable trier of fact could find that racial discrimination motivated the disciplinary actions Taormina initiated against Thomas and Cintron. See Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 181 (2d Cir. 1992) ("Even a highly-probative statement like `You're fired, old man' still requires the factfinder to draw the inference that the plaintiff's age had a causal relationship to the decision. But juries have always been allowed to draw such inferences."). Therefore, Taormina is not entitled to summary judgment as to Thomas' and Cintron's claims arising from these incidents.
b. Retaliation Claims
In order to make out a prima facie case of retaliation, plaintiffs must show that they participated in a protected activity that defendant knew about, and that they suffered an adverse employment action as a result. Since Arceo's and Thomas' tour changes do not constitute adverse employment actions, and since plaintiffs have abandoned their retaliation claims as to Cintron (Pls.' Opp. at 16), only Thomas' retaliation claim regarding the AWOL disciplinary charges remain. Thomas alleges that on or about March 12, 1999, she filed a complaint with the New York State Division of Human Rights about Taormina's actions toward her, and that Taormina filed the AWOL disciplinary charges against her in or around March 2001. Thomas' filing of the complaint constitutes protected activity; see Cruz, 202 F.3d at 566 ("The term `protected activity' refers to action taken to protest or oppose statutorily prohibited discrimination."); Quinn, 159 F.3d at 759 (recognizing filing a complaint with a state agency as a protected activity). The court assumes, although it is not alleged, that defendant was aware of the complaint. However, the two-year gap between the protected activity and the allegedly retaliatory act fatally attenuates plaintiffs' causal claim. Retaliatory intent may be inferred from an adverse employment action that follows closely on the heels of the protected activity. Cifra v. Gen. Elec. Co., 252 F.3d 205, 217 (2d Cir. 2001); Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1178 (2d Cir. 1996). By the same token, when no other evidence of a causal connection exists, a lack of temporal proximity can defeat a claim of retaliation. The Second Circuit has "not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action." Gorman-Bakos v. Cornell Coop. Extension, 252 F.3d 545, 554 (2d Cir. 2001). However, I can find no evidence that any court in our jurisdiction has drawn an inference of causality from an adverse action that followed a protected activity by two years. Moreover, the Supreme Court has stated that the two events must be "very close" in time to create an inference of a causal relationship, and has found a gap of 20 months between protected activity and adverse action — four months less than in this case — to "suggest, by itself, no causality at all." Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 274, 121 S. Ct. 1508, 1511 (2001). In the absence of either temporal proximity or any other evidence of causality, the court cannot agree with plaintiffs that "Taormina's AWOL charges can be inferred as direct [or even indirect] retaliatory evidence." (Pls.' Opp. at 16-17.) Therefore, Thomas' remaining retaliation claim cannot survive.
CONCLUSION
For the foregoing reasons, defendants' motion is hereby GRANTED as to all plaintiffs' claims except those discrimination claims against Taormina arising from Thomas' suspension resulting from the December 10 incident and from Cintron's suspension arising from the March 11 incident. As to those two claims, summary judgment is DENIED.
SO ORDERED.