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rejecting the argument that all complaints relating to race or gender discrimination implicate matters of public concern
Summary of this case from Fusco v. City of RensselaerOpinion
99 Civ. 3337 (DC).
September 19, 2001.
NOAH A. KINIGSTEIN, ESQ., New York, New York, Attorney for Plaintiff
MARTIN B. SCHNABEL, ESQ., Vice President and General Counsel New York City Transit Authority, By: Daniel Topper, Esq., Assistant General Counsel, Brooklyn, New York, Attorneys for Defendants
OPINION
Plaintiff Stephen Walker, an African American male employed by the New York City Transit Authority ("NYCTA"), brings this action against defendants NYCTA, Nicholas Barney, and Arthur J. Mahler pursuant to 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 1983, 42 U.S.C. § 1985, and New York law. Plaintiff contends that defendants harassed him because of his race and gender and retaliated against him by filing unfounded disciplinary charges, denying his requests for vacations and transfer, and firing him. Plaintiff alleges race and gender-based hostile environment employment discrimination and retaliation; First Amendment retaliation for speaking on a matter of public concern; civil rights conspiracy; and intentional infliction of emotional distress.
Defendants move for summary judgment pursuant to Fed.R.Civ.P. 56 on all claims. For the reasons set forth below, defendants' motion is granted and the complaint is dismissed.
BACKGROUND
A. Facts
Construed in the light most favorable to plaintiff, the facts are as follows:
1. Plaintiff's Employment History and Work Environment
Plaintiff has been employed by the NYCTA since October 10, 1972. (Compl. ¶ 8; P1. Ex. I, p. 40). At all relevant times, plaintiff was a timekeeper in the Timekeeping, Compliance, and Control Unit (the "Unit"), which was under the direction of defendant Arthur J. Mahler. (Compl. ¶ 8; Def. Rule 56.1 Statement ¶ 4).
In June 1996, defendant Nicholas Barney, a manager in the Unit, became plaintiff's immediate supervisor. (Def. Rule 56.1 Statement ¶ 6). Barney's supervisees were all African-American women, with the exception of plaintiff and Arthur Sherard, an African-American man who left Barney's supervision in July 1997. (Walker Dep. at 15, 22-23, 25; Sherard Aff. ¶ ¶ 2-3).
Beginning in April 1997, Barney and plaintiff began to experience problems in their work relationship. (Walker Dep. at 18-19). In the presence of plaintiff's co-workers, Barney frequently yelled at plaintiff for being tardy, failing to time his lunch breaks, and keeping an untidy desk. (Walker Dep. at 18-19, 43; Pack Aff. ¶ ¶ 6-7, 9). Although Barney yelled at plaintiff for being a few minutes late to work, Barney never reprimanded other employees for similar tardiness problems. (Walker Dep. at 151; Pack Aff. ¶ 8). On one occasion, plaintiff overheard Barney tell his co-workers in a joking manner that "all males are dogs." (Walker Dep. at 46). Plaintiff believed that Barney was harassing him because of his race and gender. (Walker Dep. at 42, 150).
In June 1997, Barney instructed plaintiff to change his work station to a desk directly in front of Barney's desk. (Def. Rule 56.1 Statement ¶ 10; Walker Dep. at 20; Def. Ex. 34). While plaintiff was on vacation, his belongings were moved to the new desk without his permission, resulting in the loss of $300 worth of property. (Walker Dep. at 20-22; Def. Ex. 34). On June 2, 1997, plaintiff filed a notice of claim regarding his lost property. (Def. Ex. 34).
2. Plaintiff's First Complaint of Harassment and September 1997 Disciplinary Charges
In early July 1997, plaintiff told Mahler that Barney was harassing him and treating him like a child, but did not complain that he believed Barney was harassing him because he is an African-American male. (Walker Dep. at 48-50; Def. Ex. 7-8; Mahler Dep. at 27).
On July 9 and again on July 23, 1997, plaintiff requested a vacation day for July 28, 1997, but Barney denied both requests. On July 18, 1997, Barney issued a memorandum stating that all of plaintiff's vacation requests would be denied until plaintiff organized his desk area, and that plaintiff would be subject to disciplinary action if he continued to disregard orders to organize his desk area or he did not report to work on July 28. (Def. Ex. 9, 11). Plaintiff did not report to work on July 28, 1997. (Def. Ex. 12).
On August 8, 1997, Barney issued another memorandum warning plaintiff that he would be subject to disciplinary action if he continued to disregard orders to organize his desk area. (Def. Ex. 11). The memorandum emphasized that orderliness was especially important because plaintiff's records had to be readily accessible if adjustments had to be made while plaintiff was absent from work. (Def. Ex. 11).
On September 24, 1997, disciplinary charges were brought against plaintiff for two unauthorized absences, tardiness, failure to organize his work area, and insubordination. (Pl. Ex. F; Def. Ex. 13). Upon the advice of his union representative, plaintiff elected to settle the charges by accepting a five-day suspension. (Walker Dep. at 40-42; Pl. Ex. G; Def. Ex. 13).
3. Plaintiff's Second Complaint of Harassment and Defendants' Response
In anticipation of plaintiff's vacation on November 24, Barney gave plaintiff a memorandum on November 18, 1997, stating that plaintiff was to spend November 19 and 20th organizing his desk area. (Pl. Ex. H; Def. Ex. 16). The memorandum advised that plaintiff would be disciplined if he did not comply. (Pl. Ex. H; Def. Ex. 16).
After receiving the memorandum that day, plaintiff told Mahler that he was extremely distressed by Barney's harassment, but did not explain that he believed Barney's harassment was motivated by plaintiff's race and gender. (Walker Dep. at 60-62, 145). Plaintiff told Mahler that he could not be responsible for his own actions. (Pl. Ex. I, p. 88). After speaking with plaintiff, Mahler advised the Office of Labor Relations that he was concerned that plaintiff was not in a stable mental condition and might pose a danger to other employees. (Def. Ex. 17, 18; Pl. Ex. I, p. 55). A member of Labor Relations informed Mahler that plaintiff's threats required immediate disciplinary action. (Def. Ex. 18). The same day, plaintiff was examined by medical personnel and given six days leave from work, until November 26. (P1. Ex. I, pp. 89-91; Def. Ex. 18).
On November 26, Barney and other officials of the NYCTA met with plaintiff, but the meeting was adjourned until December 1 because plaintiff's union representative was unavailable. (Pl. Ex. L; Def. Ex. 26; Def. Rule 56.1 Statement ¶ 29). The same day, plaintiff was examined by an NYCTA psychologist who recommended that plaintiff be transferred to another department. (Pl. Ex. J).
4. Plaintiff's EEO Complaint and December 1997 Disciplinary Charges
On December 1, 1997, plaintiff was told that he was being suspended for threatening a manager. (Pl. Ex. L; Def. Ex. 25, 26). Later that day, plaintiff filed a complaint with the NYCTA Division of Equal Employment Opportunity ("EEO"), alleging discrimination based on race, sex, and "status," and retaliation. (Pl. Ex. L; Def. Ex. 25). Mahler and Barney both testified in their depositions that they did not learn of plaintiff's EEO complaint until sometime in 1998. (Mahler Dep. at 47; Barney Dep. at 40-42). Barney testified that he learned of the EEO charge when he was interviewed during the EEO investigation, which was closed on April 15, 1998. (Barney Dep. at 41-42; Def. Ex. 32).
On December 3, 1997, plaintiff was served with disciplinary charges. (Def. Ex. 30). The Labor Relations Department decided to institute disciplinary action against plaintiff. (Mahler Dep. at 44-47). After an administrative hearing on December 17, plaintiff was given a ten-day suspension for failure to organize his desk area, eight latenesses, and eight failures to time his lunch breaks; plaintiff was found not guilty of threatening a manager. (Def. Ex. 31).
5. Plaintiff's Attempts to Transfer
Several times in 1997, 1998, and 1999, plaintiff sought transfers to other departments or units within the NYCTA, but was unsuccessful. (Walker Dep. at 26-32; Pl. Ex. D). To apply for a transfer, an employee must respond to postings for openings in other units and interview for the openings. (Mahler Dep. at 41, 52-54). The postings for job openings to which plaintiff responded provided that applications for openings were to be sent to the Human Resources Department. (Pl. Ex. D). Mahler testified at deposition that the Human Resources Department bears the responsibility for transferring employees. (Mahler Dep. at 41, 52-54).
In May 2000, plaintiff transferred to another department within the NYCTA. (Walker Dep. at 30).
B. Procedural History
As indicated above, plaintiff filed an EEO complaint with the NYCTA on December 1, 1997, alleging discrimination based on race, sex, and "status," as well as retaliation. (Pl. Ex. L; Def. Ex. 25).
On January 30, 1998, plaintiff completed an Equal Employment Opportunity Commission ("EEOC") intake questionnaire, but did not formally file a complaint. (Pl. Ex. M).
On September 24, 1998, plaintiff formally filed a charge with the EEOC against defendants, alleging discrimination based on race, color, and sex, and retaliation. (Pl. Ex. N; Def. Ex. 33). On or about February 16, 1999, plaintiff received a right-to-sue letter from the EEOC. (Compl. ¶ 3).
On May 7, 1999, within ninety days after receipt of the right-to-sue letter, plaintiff commenced the instant action in this Court.
This motion followed.
DISCUSSION
Defendants move for summary judgment on the following grounds: (1) plaintiff's claims under Title VII and the New York State Human Rights Law, N.Y. Exec. § 290 et seq. (the "NYSHRL"), fail because they are barred in part by the statute of limitations, plaintiff is unable to establish a hostile environment claim, and plaintiff is unable to establish a prima facie case of retaliation; (2) plaintiff's First Amendment retaliation claim under § 1983 fails because plaintiff's speech did not involve a matter of public concern; (3) plaintiff's allegations of a civil rights conspiracy under § 1985 are too conclusory and vague to state a claim as a matter of law; and (4) plaintiff's state law claim of intentional infliction of emotional distress is barred because he failed to file the required notice of claim against the NYCTA, and the allegations are nevertheless insufficient to meet state law requirements.
A. Summary Judgment
Summary judgment will be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). Accordingly, the Court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Summary judgment is inappropriate if, resolving all ambiguities and drawing all inferences against the moving party, there exists a dispute about a material fact "such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248; see Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991). A factual issue is genuine if it can reasonably be resolved in favor of either party. Anderson, 477 U.S. at 250. A fact is material if it can affect the outcome of the action based on the governing law. Id. at 248.
To defeat a motion for summary judgment, the nonmoving party must do more than raise "some metaphysical doubt as to the material facts."Matsushita, 475 U.S. at 586; see Fleurcius v. Short Line Hudson Transit Bus, No. 99 Civ. 2754, 2000 U.S. Dist. LEXIS 18261, at *10-11 (S.D.N.Y. Dec. 20, 2000). There is no issue for trial unless there exists sufficient evidence in the record favoring the party opposing summary judgment to support a jury verdict in that party's favor. Anderson, 477 U.S. at 249. As the Court stated in Anderson, "if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted).
B. Title VII and the NYSHRL
Plaintiff alleges that defendant NYCTA violated his rights under Title VII and the NYSHRL by subjecting him to a hostile work environment because of his race and gender and by retaliating against him for engaging in protected activities. Plaintiff further alleges that defendants NYCTA, Mahler, and Barney violated the NYSHRL by aiding and abetting the discrimination and retaliation against him. For the most part, plaintiff's Title VII and NYSHRL claims are governed by the same standards and are analyzed together. See Torres v. Pisano, 116 F.3d 625, 629 n. 1 (2d Cir. 1997); Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1177 (2d Cir. 1996); Lamberson v. Six West Retail Acquisition. Inc., 122 F. Supp.2d 502, 508 n. 1 (S.D.N.Y. 2000). Differences between the two statutes with respect to the statutes of limitation and the NYSHRL claim of aiding and abetting discrimination are discussed below.
1. Statute of Limitations
Title VII provides that where a plaintiff has first filed a complaint of discrimination with a state or local equal employment agency, he has 300 days from the date of the alleged discriminatory acts to file a charge with the EEOC. See 42 U.S.C. § 2000e-1; Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996). Here, plaintiff filed his EEOC charge on September 24, 1998. Thus, alleged discriminatory acts occurring before November 29, 1997, i.e., more than 300 days prior to September 24, 1998, would appear to be time-barred. See Van Zant, 80 F.3d at 712. Defendants contend that the last acts comprising the alleged hostile environment occurred on November 18, 1997, prior to the 300-day period. See Gomes v. AVCO Corp., 964 F.2d 1330, 1332-1333 (2d Cir. 1992).
Plaintiff argues that alleged discriminatory acts occurring before November 29, 1997, are timely under the "continuing violation exception" to the statute of limitations. Under this exception,
[A] plaintiff who files a timely EEOC charge about a particular discriminatory act committed in furtherance of an ongoing policy of discrimination extends the limitations period for all claims of discriminatory acts committed under that policy even if those acts, standing alone, would have been barred by the statute of limitations.Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997). Further, "a continuing violation may be found where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Quinn, 159 F.3d at 766 (quotations omitted). The Second Circuit has noted, however, that "multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation." Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993) (citations omitted).
I conclude that plaintiff's allegations do not fall within the continuing violation exception. Plaintiff's contention that the December 1997 disciplinary charges were initiated by defendants in furtherance of a continuing policy of discrimination closely related to the hostile environment claim is unsupported by the record. The evidence reveals no connection between defendants' treatment of plaintiff and any ongoing alleged discriminatory policy or practice. Further, there is no evidence that defendants allowed related incidents of discrimination to continue for so long as to constitute a discriminatory policy. The NYCTA took prompt action to investigate plaintiff's allegations of discrimination after he filed a complaint with its EEO. (Def. Ex. 32).
Plaintiff further argues that the statute of limitations should be equitably tolled because he mistakenly believed that he had filed an EEOC complaint in January 1998, when he completed an EEOC intake questionnaire. In appropriate cases, Title VII filing requirements are subject to "waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); see Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (noting that equitable tolling may be applied where plaintiff "has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where [he] has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass"); see also South v. Saab Cars USA,' Inc., 28 F.3d 9, 11-12 (2d Cir. 1994) (discussing other situations in which equitable tolling has been applied). Equitable tolling is applied "only sparingly," Irwin, 498 U.S. at 96, and should not be permitted where a plaintiff has failed to act diligently. South, 28 F.3d at 12.
Equitable tolling of the 300-day filing requirement is not appropriate in this case. On January 30, 1998, plaintiff filled out an initial EEOC intake questionnaire but did not complete the steps necessary to file a formal, sworn charge with the EEOC. While the record contains no evidence that the EEOC misinformed or misled plaintiff, evidence does suggest that plaintiff was told that he would have to return to the EEOC to complete the process and file a formal charge: a handwritten note at the top of the January 30th intake form reads "Counselling/Returning to file." (Pl. Ex. N). See Jordan v. Bates Adver. Holdings, Inc., No. 96 Civ. 5851, 1999 U.S. Dist. LEXIS 12164, at *4-5 (S.D.N.Y. Aug. 6, 1999) (finding equitable tolling inappropriate where plaintiff completed intake questionnaire but failed to return to EEOC to file timely charge, where EEOC had informed plaintiff that further action was necessary). Plaintiff has not offered any explanation for waiting until September 24th, a delay of nearly eight months, to return to the EEOC. Even assuming that plaintiff was not aware that he had to file a formal charge, by waiting nearly eight months to return to the EEOC to file a formal charge, plaintiff failed to act diligently. Hence, he is not entitled to equitable tolling.
Accordingly, plaintiff's Title VII claims arising out of events occurring before November 29, 1997, are time-barred. Specifically, plaintiff's Title VII hostile environment claim, based on alleged discriminatory acts occurring from April 1997 through November 1997, must be dismissed as time-barred.
In contrast to Title VII'S 300-day limitations period, the NYSHRL has a three-year statute of limitations. N.Y. Civ. Prac. L. R. 214(2). Thus, plaintiff's state law discrimination claims, which include hostile environment, are not time-barred. I therefore review the merits of plaintiff's hostile environment claim, as well as his other claims of employment discrimination, under both Title VII and the NYSHRL. As the discussion below makes clear, plaintiff's Title VII hostile environment claim, which is essentially identical to his state law hostile environment claim, would fail on the merits even if it is not time-barred.
2. Hostile Environment
Plaintiff alleges that defendant NYCTA subjected him to a discriminatory hostile work environment based on his race and gender. To prevail on a hostile environment claim under the NYSHRL or Title VII, a plaintiff must establish both (1) a hostile work environment and (2) a basis for imputing the harassing conduct to the employer. See Distasio v. Perkin Elmer Corp., 157 F.3d 55, 62 (2d Cir. 1998) (citing Van Zant, 80 F.3d at 715). To establish a hostile work environment, a plaintiff must show that his workplace was "permeated with `discriminatory intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Howley v. Town of Stratford, 217 F.3d 141, 153 (2d Cir. 2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Whether the work environment was "hostile" or "abusive" depends on the "totality of the circumstances," including: "`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.'"Distasio, 157 F.3d at 62 (quoting Harris, 510 U.S. at 23). The analysis of whether a particular work environment was "hostile" or "abusive" turns both on the subjective judgment of the plaintiff and on the objective judgment of a reasonable person. See Harris, 510 U.S. at 21-22. In general, the same standards apply to race-based and sex-based hostile environment claims. See Richardson v. New York State Dept. of Corr. Serv., 180 F.3d 426, 436 n. 2 (2d Cir. 1999) (citing Torres v. Pisano, 116 F.3d 625, 630 (2d Cir. 1997)).
Although the record suggests that plaintiff was subjected to an extremely unpleasant work environment in which Barney regularly reprimanded him in the presence of co-workers, the record contains no evidence from which a reasonable jury could conclude that plaintiff's treatment was motivated by any discriminatory animus based on race or gender. At no time did Barney or any other NYCTA employee make any reference to plaintiff's race or gender or make any racially or sexually derogatory comments to plaintiff. The record contains no evidence of any incidents with discriminatory overtones. On one occasion, plaintiff did overhear Barney jokingly refer to "all males [as] dogs," but such an isolated incident is insufficient to constitute a sexually discriminatory hostile environment given the record as a whole. Given the totality of the circumstances, no reasonable jury could find that plaintiff's work environment was "permeated with `discriminatory intimidation, ridicule, and insult,'" based on race or gender. See Howley, 217 F.3d at 153 (quoting Harris, 510 U.S. at 21).
Accordingly, summary judgment is granted with respect to plaintiff's NYSHRL hostile environment claim against defendant NYCTA.
3. Retaliation
Plaintiff alleges that defendant NYCTA retaliated against him for twice complaining to Mahler about Barney's discriminatory treatment of him, filing a notice of claim over his lost property, filing a discrimination complaint with the EEO, and filing a charge with the EEOC. Plaintiff contends that the retaliation included the filing of unfounded disciplinary charges against him, denial of his repeated requests to transfer to another department, and conditioning approval of vacation requests on plaintiff's organization of his work station.
a. Legal Standards
Title VII provides that "it shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter. . . ." 42 U.S.C. § 2000e-3(a). As discussed above, such unlawful employment practices include the creation or condonement of a discriminatory or hostile work environment. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 64-65 (1986).
Retaliation claims are governed by the burden-shifting framework set out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Quinn, 159 F.3d at 764. First, the plaintiff bears the burden of establishing a prima facie case of retaliation by showing that: "(1) [plaintiff] 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 plaintiff; and (4) a causal connection existed between the plaintiff's protected activity and the adverse action taken by the employer." Gordon v. New York City Bd. of Educ., 232 F.3d 111, 116 (2d. Cir. 2000) (quotingCosgrove v. Sears. Roebuck Co., 9 F.3d 1033, 1039 (2d Cir. 1993)).
Next, if the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-retalitory reason for the adverse employment action. If the employer proffers a legitimate reason, the burden then shifts back to the plaintiff to prove the ultimate issue: whether "retaliation `played a motivating role in, or contributed to, the employer's decision.'" Gordon, 232 F.3d at 117 (quoting Renz v. Grey Adver., Inc., 135 F.3d 217, 222 (2d Cir. 1997));see also James v. New York Racing Ass'n, 233 F.3d 149, 156 (2d Cir. 2000) (stating that court must examine entire record to determine whether plaintiff can satisfy "his ultimate burden of persuading the trier of fact" that defendants' actions were unlawful) (quotations and citations omitted).
a. Application
NYCTA argues that summary judgment must be granted on plaintiff's retaliation claim because he has not established a prima facie case. I address defendant's arguments in the context of considering the "ultimate issue": whether the record contains sufficient evidence to support an inference that the imposition of disciplinary action against plaintiff, denial of transfers, and denial of vacation days were motivated, at least in part, by an impermissible reason — NYCTA's desire to retaliate against him for engaging in protected activity.
1. Protected Activity
To prove that he engaged in a protected activity, a plaintiff must show that (1) he opposed a practice engaged in by his employer, and (2) he had a "good faith, reasonable belief that the underlying challenged actions of the employer violated the law." Wimmer v. Suffolk Co. Police Dep't, 176 F.3d 125, 134 (2d Cir. 1999) (quoting Manoharan v. Columbia Univ. College of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988)) Protected oppositional activities include informal as well as formal complaints of discrimination as well as complaints to management. See Cruz v. Coach Stores. Inc., 202 F.3d 560, 566 (2d Cir. 2000) (citingSumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990)).
NYCTA argues that plaintiff is unable to establish that he opposed an unlawful practice engaged in by his employer because he did not actually complain of discrimination. As the NYCTA correctly asserts, plaintiff never expressed his belief that he was being discriminated against in his complaints to Mahler or in his notice of claim. Plaintiff testified during his deposition that he complained to Mahler that he was being harassed and treated like a child, but also said that he never stated that he was being discriminated against. (Walker Dep. at 48-50, 60-62, 145). No reasonable jury could find that the fair import of plaintiff's conversations with Mahler was that plaintiff believed he was being discriminated against because of his race and gender. Similarly, plaintiff's notice of claim made no mention of discrimination and merely reported lost property. (Def. Ex. 34). As a result, these activities cannot be considered complaints of discrimination and do not rise to the level of protected activities.
On the other hand, plaintiff's December 1997 EEC complaint and September 1998 EEOC charge clearly communicated his complaint of discrimination and certainly constitute protected activities. See Cosgrove, 9 F.3d at 1039 (finding that filing EEOC complaint is a protected activity).
As discussed above, in proving that he engaged in a protected activity, plaintiff need not show that he opposed actions by his employer that actually violated the law, but merely that he held a good faith, reasonable belief that they were discriminating against him. Keeping in mind that proof of discriminatory motives is often elusive, I will assume for the purposes of this motion that plaintiff had a good faith, reasonable belief that he was the victim of discrimination.
Thus, for purposes of this motion, plaintiff is able to establish the first prong of his prima facie case, that he engaged in a protected activity.
2. Employer Awareness of Protected Activity
Plaintiff filed his EEO charge with NYCTA on December 1, 1997. Mahler and Barney each testified at deposition that they became aware of plaintiff's charges of discrimination at some point in 1998. (Mahler Dep. at 47; Barney Dep. at 40-42). Barney testified that he learned of the EEO complaint during the EEO investigation, which was closed in April 1998. (Barney Dep. at 41-42; Def. Ex. 32). Plaintiff has presented no evidence to contradict this testimony. Thus, the record suggests that while the NYCTA's Division of EEO had notice of plaintiff's complaint as early as December 1997, Barney and Mahler did not become aware of plaintiff's complaints of discrimination until sometime in early 1998.
3. Adverse Actions Against Plaintiff
Plaintiff contends that NYCTA retaliated against him by charging him with disciplinary violations, denying his vacation requests, and denying his requests to transfer. Because plaintiff's EEO complaint was not filed until December 1, 1997, however, events prior to that date, including the denials of vacation requests and the September 1997 disciplinary charges, may not be considered for purposes of plaintiff's retaliation claim. The December 1997 disciplinary charges, served on plaintiff on December 3, and plaintiff's unsuccessful attempts to transfer in 1998 and 1999, may be considered adverse actions for the purposes of this motion.See Meckenberg v. New York City Off-Track Betting, 42 F. Supp.2d 359, 378 (S.D.N.Y. 1999) ("denial of a request for transfer to departments where conditions were more favorable constitutes an adverse action").
4. Causal Connection
A plaintiff may allege proof of causation either: "(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant." Gordon, 232 F.3d at 117. Plaintiff relies solely on indirect evidence to establish a causal connection between his formal charges of discrimination and the December 1997 disciplinary charges and his unsuccessful attempts to transfer in 1998 and 1999.
Plaintiff alleges that the December 1997 disciplinary charges, formally served on plaintiff on December 3, were instituted in direct retaliation for plaintiff's filing of his EEO charge on December 1. Although a close temporal proximity between plaintiff's EEO complaint and the filing of disciplinary charges might ordinarily support an inference of retaliatory animus, the record in the instant case demonstrates that the NYCTA Labor Relations Department took initial steps to bring disciplinary charges against plaintiff prior to December 1, and discussed the possibility of doing so as early as November 18. Furthermore, there is no evidence that Labor Relations, the NYCTA department responsible for initiating disciplinary charges, had any knowledge of plaintiff's December 1, 1997, EEO complaint.
Plaintiff further alleges that the denial of his multiple attempts to transfer, spanning 1998 and 1999, was the result of an unlawful retaliatory motive on the part of Barney and Mahler. NYCTA contends that defendant Mahler (and by implication Barney, as Mahler was Barney's supervisor) had no authority to make decisions to transfer plaintiff or any other NYCTA employee. Mahler testified at his deposition that the Human Resources Department was responsible for making decisions with regard to the transfer of employees. (Mahler Dep. at 41, 52-54). The postings for job openings to which plaintiff responded corroborate Mahler's testimony, indicating that applications for openings were to be sent to the Human Resources Department. (P. Ex. D). Thus, the record demonstrates that the Human Resources Department, not Mahler or Barney, made decisions with regard to the transfer of employees. Even assuming that plaintiff was qualified for the positions to which he applied, plaintiff has offered no evidence tending to suggest that the Human Resources Department was aware of his complaints of discrimination. On this record, a reasonable jury could not infer that plaintiff's unsuccessful attempts to transfer to other units were caused by retaliatory animus.
Accordingly, summary judgment is granted to defendant NYCTA with regard to plaintiff's claim of retaliation.
4. Aiding and Abetting
Plaintiff also alleges that defendants NYCTA, Barney, and Mahler aided and abetted the discrimination and retaliation against him. The relevant provision of the NYSHRL provides that "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." N.Y. Exec. Law § 296(6). Under this provision, the Second Circuit has held that "a defendant who actually participates in the conduct giving rise to a discrimination claim may be held personally liable." See Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995). In the instant case, plaintiff's claim that defendants aided and abetted the discrimination against him cannot be sustained where the underlying allegations of discrimination, i.e., plaintiff's claims of hostile environment discrimination and retaliation, have been found to be without merit. See DeWitt v. Lieberman, 48 F. Supp.2d 280, 293 (S.D.N.Y. 1999) ("There is a . . . requirement [under N.Y. Exec. Law § 296(6)] that liability must first be established as to the employer/principal before accessorial liability can be found as to an alleged aider and abettor."). Accordingly, summary judgment is granted to defendants with regard to plaintiff's aiding and abetting claim.
D. 42 U.S.C. § 1983/First Amendment Retaliation Claim
Plaintiff also claims that defendants violated his First Amendment rights when they retaliated against him for speaking out on a matter of public concern. Plaintiff bases his First Amendment claim on his two conversations with Mahler, in which he complained of harassment by Barney, and on his filing of a charge with the EEO.
1. Legal Standard
The Supreme Court has held that a public employee does not surrender his right to speak freely simply by virtue of his public employment.Connick v. Myers, 461 U.S. 138, 140 (1983) (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). As the Supreme Court has noted, "[v]igilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees' speech." Rankin v. McPherson, 483 U.S. 378, 384 (1987). To safeguard the important interests of public employees and employers alike, the Supreme Court has held that courts must strike a careful "balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568.
To prevail on a First Amendment retaliation claim under § 1983, a plaintiff must first demonstrate that "(1) his speech was constitutionally protected, (2) he suffered an adverse employment decision, and (3) a causal connection exists between his speech and the adverse employment determination against him." Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-87 (1977)). If plaintiff succeeds in making this initial showing, defendants must then prove that they would have made the same personnel decision absent the protected speech. Id.
2. Application
Defendants contend that plaintiff is unable to prove the first required element — that plaintiff's speech was constitutionally protected. Under this element, an employee's speech is entitled to constitutional protection if it addresses a matter of public concern; such a determination is a question of law, not fact. See Connick, 461 U.S. at 147-48 n. 7. Courts must examine the "content, form, and context of a given statement, as revealed by the whole record" to determine whether the speech qualifies as a matter of public concern. Id. at 147-48. Speech that relates to any matter of political, social, or other concern to the community may be considered a matter of public concern. Id. at 146. "[W]hen a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency." Id. at 147.
Defendants assert that plaintiff's complaint of discrimination concerned a purely private dispute with his employers and did not encompass any claims of system-wide discrimination or broader social issues. Plaintiff argues that his complaints of race and sex-based discrimination constitute matters of public concern. In support of his argument, he points to several cases that are inapposite to the case at hand, arguing essentially that all complaints relating to discrimination implicate matters of public concern. See Dimino v. NYCTA, 64 F. Supp.2d 136, 157 (E.D.N.Y. 1999) (EEOC complaint "touching upon the rights of pregnant women to be treated equally must be a matter of public concern," where complaint was first step in challenging broad-based discriminatory policy); Hageman v. Molinari 14 F. Supp.2d 277, 283-84 (E.D.N.Y. 1998) (finding that plaintiff's speech against racial insensitivity by high-level members of borough president's staff constituted matter of public concern, where plaintiff was not directly affected by the insensitive conduct); Spetalieri v. Kavanauah, 36 F. Supp.2d 92, 104-05 (N.D.N.Y. 1998) (finding that racial slurs made by plaintiff were a matter of public concern because the speech could not be separated from his position as head of the Narcotics Bureau of the city police department). While it is true that speech regarding discrimination may generally relate to a matter of public concern, a court must still determine whether the particular speech in question was a matter of public concern by examining the circumstances of the individual case. See Connick, 461 U.S. 138 n. 8 ("a questionnaire not otherwise of public concern does not attain that status because its subject matter could, in different circumstances, have been the topic of a communication to the public that might be of general interest.").
In the instant case, plaintiff's conversations with Mahler and his EEO complaint did not involve a matter of public concern. As discussed above, plaintiff's conversations with Mahler cannot reasonably be construed to have involved complaints of race or gender-based discrimination. Even assuming the conversations did involve complaints of discrimination, they, like plaintiff's EEO complaint, nevertheless can only be characterized as a personal employment grievance. Plaintiff did not protest any broad discriminatory policies or practices. See Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 143 (2d Cir. 1993) ("Had [plaintiff's] complaints to her supervisors implicated system-wide discrimination they would have unquestionably involved a matter of `public concern.'"); Menes v. CUNY, 92 F. Supp.2d 294, 309 (S.D.N.Y. 2000) (same). Moreover, plaintiff's complaints were "personal in nature and generally related to h[is] own situation." Ezekwo v. NYC Health Hospitals Coro., 940 F.2d 775, 781 (2d. Cir. 1991). The record contains no evidence that plaintiff sought to participate in a greater discussion about discrimination, remedy pervasive discrimination by public officials, or engage in any broad effort to combat discriminatory practices or bring them to public light. See Saulpaugh 4 F.3d at 143 (quoting Yatvin v. Madison Metro. School Dist., 840 F.2d 412, 420 (7th Cir. 1988)). See also De Silva v. New York City Transit Auth., No. CV 96-2758, 1999 U.S. Dist. LEXIS 19998, at *49 (E.D.N.Y. Nov. 17, 1999) (quotations and citations omitted) ("[C]ourts in this Circuit have consistently held that `an EEOC complaint based on race and sex discrimination is not a matter of public concern, and therefore is not protected speech under the First Amendment.'"), aff'd, Nos. 99-9490, 00-7009, 2000 U.S. App. LEXIS 38586 (2d Cir. Sept. 24, 2000). Thus, plaintiff's speech does not implicate a matter of public concern entitled to First Amendment protection.
Even assuming plaintiff could meet the "public concern" requirement, "he would be unable to satisfy the causation prong of the test for the same reasons that he cannot make out a [Title VII] retaliation claim."Menes, 92 F. Supp. 2d at 310 (citing Dimino, 64 F. Supp. 2d at 157).
Accordingly, summary judgment is granted to defendants on plaintiff's § 1983 claim of First Amendment retaliation.
Plaintiff's complaint alleges that defendants violated 42 U.S.C. § 1985(2) by pursuing disciplinary charges against him after plaintiff filed his EEO complaint, attempting to "deter the plaintiff by intimidating him." (Compl. ¶ 29). In plaintiff's opposition brief, he re-characterizes his claim as one pursuant to § 1985(3), arguing that defendants Barney and Mahler acted in concert to willfully discriminate and retaliate against plaintiff, depriving him of the equal protection of the laws. (Pl. Opp. Br. at 14-15). Plaintiff is unable to sustain a claim of civil rights conspiracy under either of these provisions. 1. § 1985(2)
In general, "it is inappropriate to raise new claims for the first time in submissions in opposition to summary judgment." Bonnie Co. Fashions, Inc. v. Bankers Trust Co., 170 F.R.D. 111, 119 (S.D.N.Y. 1997); see also Beckman v. United States Postal Serv., 79 F. Supp.2d 394, 407-08 (S.D.N.Y. 2000). Because a consideration of plaintiff's § 1985(3) claim is not determinative of the outcome in this case, I address the merits of this claim.
Section 1985(2), entitled "Obstructing justice; intimidating party, witness, or juror," applies to conspiracies to intimidate parties in federal court proceedings, as well as to conspiracies to hinder the due course of justice in any state or territory. See 42 U.S.C. § 1985(2). As defendants correctly assert, § 1985(2) is inapplicable to the facts of the instant case. See Jenkins v. Arcade Bldg. Maintenance, 44 F. Supp.2d 524, 531 n. 2 (S.D.N.Y. 1999) (finding § 1985(2) inapplicable in case where plaintiff was subjected to harassment after she filed an EEOC complaint).
2. § 1985(3)
Section § 1985(3) provides a remedy to individuals who have been intentionally deprived of constitutional rights or privileges by the conspiracy of two or more persons. 42 U.S.C. § 1985(3). To state a § 1985(3) claim, a plaintiff must allege: (1) a conspiracy; (2) for the purposes of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; and (4) injury. Mian v. Donaldson, Lufkin, Jenrette Sec. Corp., 7 F.3d 1085, 1087-88 (2d Cir. 1993). The conspiracy must be motivated by racial or class-based discriminatory animus. See id. at 1087. Finally, "complaints containing only `conclusory,' `vague' or `general allegations' of a conspiracy to deprive a person of constitutional rights will be dismissed." Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977) (citations omitted).
In support of his claim, plaintiff alleges that "Mr. Barney together with Mr. Mahler acted in concert to discriminate and retaliate against plaintiff, thereby directly causing him injury" and that "[b]oth supervisors knowingly and willfully acted in order to deprive Mr. Walker of [the] equal protection of the laws." (Pl. Opp. Br. at 14-15). Plaintiff has adduced no evidence tending to show that Barney and Mahler conspired to deprive plaintiff of any rights, or that they acted intentionally. As a result, plaintiff's claim can only be deemed conclusory and vague. Further, § 1985(3) provides a civil cause of action only when some other defined federal right has been violated; it creates no substantive rights. See Great American Federal Sav. Loan Ass'n v. Novotny, 442 U.S. 366, 376 (1979) Because all of plaintiff's claims in this case fail, there is no basis upon which plaintiff may pursue a § 1985(3) claim.
Accordingly, summary judgment is granted to defendants with regard to plaintiff's claims of civil rights conspiracy under 42 U.S.C. § 1985.
F. Intentional Infliction of Emotional Distress
Plaintiff alleges that defendants' ongoing harassment of him resulted in the intentional infliction of emotional distress.
1. Notice of Claim
New York Public Authorities Law § 1212 provides in pertinent part that in every tort action against the NYCTA, the complaint shall contain an allegation that at least thirty days have passed since a notice of claim has been served on the NYCTA in compliance with the procedures set forth in New York General Municipal Law section 50(e). N.Y. Pub. Auth. Law §§ 1212(1), (4) (McKinney 1999).
Section 50(e) does not require that the claimant specify all causes of action in the notice of claim; instead "it requires only that he specify the time, place, and manner in which his claims arose." Ismail v. Cohen, 706 F. Supp. 243, 250 (S.D.N.Y. 1989). A claimant has satisfied the section 50(e) requirements for a notice of claim if he provides information sufficient to allow the municipal entity to conduct a proper investigation to assess the merits of the claim. Id.
Plaintiff has not filed a notice of claim sufficient to apprise the NYCTA of his claim for intentional infliction of emotional distress. Plaintiff's June 2, 1997, notice of claim merely reported $300 of property lost when his belongings were moved without his permission. The notice of claim made no mention of harassment, the factual basis for plaintiff's emotional distress claim.
Even if plaintiff were permitted to bring a claim of intentional infliction of emotional distress based solely on the factual circumstances contained in his notice of claim — i.e., distress arising out of his $300 of lost property — the claim would fail on its merits.
2. Elements of an Intentional Infliction of Emotional Distress Claim
Under New York law, the tort of intentional infliction of emotional distress has four elements: 1) extreme and outrageous conduct; 2) intent to cause severe emotional distress; 3) a causal connection between the conduct and the injury; and 4) severe emotional distress. See Howell v. New York Post Co., 81 N.Y.2d 115, 121 (1993). The standards set forth by New York courts are "strict" and difficult to satisfy. See Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303 (1983) (conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community"). The Court is to determine in the first instance whether the conduct in question may be regarded as extreme and outrageous as to permit recovery. See Knorr v. Pepsico Food Servs., Inc., No. 97-1819, 1999 LEXIS 4829, at *35 (N.D.N.Y. April 8, 1999).
In the instant case, no reasonable jury could conclude that the relocation of plaintiff's work station (resulting in $300 in property loss), assuming that it may be attributed to defendants, constituted "extreme and outrageous conduct." Moreover, plaintiff has offered no evidence tending to show that defendants intended to cause him to suffer emotional distress. Accordingly, summary judgment is granted to defendants with respect to plaintiff's claim for intentional infliction of emotional distress.
CONCLUSION
For the reasons set forth above, defendants' motion for summary judgment is granted in its entirety and the complaint is dismissed, with prejudice. The Clerk of the Court shall enter judgment accordingly.
SO ORDERED.
Dated: New York, New York September 19, 2001
Denny Chin District Judge