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ADENIJI v. ADMINISTRATION FOR CHILDREN SERVICES

March 30, 1999

ADE A. ADENIJI, PLAINTIFF,
v.
ADMINISTRATION FOR CHILDREN SERVICES, NYC, DEFENDANT.



The opinion of the court was delivered by: Kimba M. Wood, District Judge.

      ORDER

In a Report and Recommendation dated March 8, 1999 (the "Report") Magistrate Judge Peck recommended that I grant defendant's motion for summary judgment. Pro se plaintiff has submitted timely objections to the Report. Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the Court reviews de novo those aspects of the Report to which the parties object. For the reasons stated in this opinion, the Court adopts the Report in its entirety.

I. Background

The facts of this case are explained in detail in the Report, familiarity with which is assumed. (See Report at 414-418.) The facts relevant to a discussion of plaintiff's objections can be summarized as follows. The Administration for Children Services, ("ACS") hired plaintiff as a caseworker on July 11, 1988. ACS received complaints from its clients and supervisors about plaintiff's interaction with clients between 1989 and 1993. (See ACS Rule 56.1 ¶ 8; Adeniji Rule 56.1 ¶ 8.)

On November 29, 1995, during a caseworkers' conference that plaintiff attended, a caseworker in the Bronx field office, Mirta LaFontaine, said to plaintiff "you [are] not a king in Africa anymore, that you [are] subject to the rules of our office." (ACS Rule 56.1 Stmt. ¶ 14; Adeniji Rule 56.1 Stmt. ¶ 22.) Plaintiff claims that Nunez did not obtain an apology from Ms. LaFontaine and responded to him by saying that "Ms LaFontaine has a right to say what she said." (Adeniji Br. at 33; Adeniji Dep. at 138.) Plaintiff claims that Ms. LaFontaine's remark was the only racial remark anyone at ACS made to him.

On December 14, 1995, Nunez ordered plaintiff temporarily reassigned to a central home care unit in Manhattan for fifteen days. On December 15, 1995, Ms. Eileen Anderson ("Anderson"), Deputy Director of the Bronx field office, told Nunez that plaintiff was "discontent with the reassignment," and became "very upset and expressed his usual threats of calling every politician in the city if his demands were not met." (Ligorner Aff., Exh. C.) Plaintiff "made a series of threats, and appeared to have been at the verge of physically attacking Anderson as he presented body language that was very threatening." (Id.)

On December 28, 1995, the Executive Director of the ACS Office of Personnel Services requested that plaintiff be terminated, citing "the many instances of disruptive, insubordinate, verbally abusive and intimidating behavior," and stating that "the problems with Mr. Adeniji have been going on for sometime and have become increasingly intolerable." (Ligorner Aff., Exh. G.) The Executive Director stated that "aside from Mr. Adeniji's overt outbursts and inappropriate behavior, he is a definite threat to our clients and the children whom we are entrusted to protect." (Id.)

On February 1, 1996 plaintiff was reassigned to another homemaking unit. On March 18, 1996, Mr. James Stewart, a supervisor in plaintiff's homemaking unit, reported to Deputy Director Anderson that plaintiff had displayed "unprofessional behavior and disgruntled attitude" since he was reassigned. (See Ligorner Aff., Exh. C.) Mr. Stewart reported that plaintiff "rushed into my office extremely irate, frantically waving a [request for leave slip] demanding of me to sign it," and threatening "that if I did not approve his two day request he would not be responsible if he was to come to the office with a gun and shoot it up." (Id.) By March 18, 1996, plaintiff had received approximately eighteen written reprimands from supervisors and co-workers for unprofessional behavior. (See Ligorner Aff., Exh. C.)

On March 21, 1996, Anderson served plaintiff with a Notice and Statement of Charges, charging him with: 1. "displaying violent and inappropriate and threatening physical behavior toward" Anderson on December 15, 1995; 2. "shouting and cursing" in front of Nunez; 3. "ranting and threatening Nunez when she directed [plaintiff] to help the O.C.M. office with forms," in September 1995, and acting "insubordinate" and "unprofessional;" and 4. becoming "violent and . . . throwing things around and kicking the desk and chairs" on July 11, 1995." (See Ligorner Aff., Exh. J.)

During the period beginning April 10, 1996 through January 21, 1997, there were three formal hearings, and one informal conference, held before Office of Labor Relations hearing officers concerning plaintiff's disciplinary charges. (See Report at 417.) On January 21, 1997, a hearing officer affirmed the finding of the previous hearing officers that plaintiff was guilty of the disciplinary charges. The hearing officer recommended that plaintiff be terminated immediately. ACS terminated plaintiff on March 6, 1997.

Plaintiff brings this action pursuant to Title VII, 42 U.S.C. § 2000e et seq., as a result of his termination by ACS. Plaintiff asserts claims of race, national origin, and religious discrimination, retaliation, and sexual harassment against defendant. Defendant has moved for summary judgment.

II. Analysis

Plaintiff objects to the Magistrate Judge's finding that the remark made to him by Ms. LaFontaine does not amount to race and national origin discrimination. Plaintiff claims that the racial slur was so "pregnant with meaning" and racist undercurrent that the Magistrate Judge should have found his work environment to be hostile on the basis of this one comment.

As Magistrate Judge Peck correctly points out, it is well-settled that one racial remark, or even sporadic remarks, are not sufficient to establish a hostile work environment. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) ("For racist comments, slurs, and jokes to constitute a hostile work environment, there must `be more than a few isolated incidents of racial enmity,' . . . there must be a steady barrage of opprobrious racial comments.") (See Report at 421-423.) Therefore, even assuming arguendo that the comment at issue was racist, the Court finds that this comment alone is not sufficient for plaintiff to establish a hostile work environment claim. The court therefore agrees with Magistrate Judge Peck that plaintiff has failed to make the requisite showing of hostile work environment and that defendant is therefore entitled to summary judgment on this claim.

Plaintiff also objects to the Magistrate Judge's finding that ACS fired plaintiff for legitimate, non-discriminatory reasons. In particular, plaintiff objects to Magistrate Judge Peck's finding that "ACS suspended and then fired Adeniji only after many supervisors wrote him up at least nineteen times for improper, aggressive, and threatening behavior, unprofessionalism, and uncompleted assignments." (See Report at 435.) Plaintiff's objections state that his supervisors reprimanded him in writing only six to ten times. Plaintiff asserts that the Magistrate Judge exaggerated plaintiff's disciplinary problems in order to justify the recommendation that summary judgment be granted in favor of defendant.

After having reviewed the record, the Court finds that there is ample evidence that ACS fired plaintiff for legitimate, nondiscriminatory reasons. The Court also finds that the record substantiates Magistrate Judge Peck's finding that plaintiff had been reprimanded at least nineteen times for improper, aggressive, and threatening behavior and for uncompleted assignments. (See Adeniji Aff., Exh. J; Ligorner Aff., Exh. C; ACS Rule 56.1 Stmt. ¶ 9.) Furthermore, the Court finds that even if it were the case that plaintiff's supervisors had reprimanded him only six to ten times, this fact alone would support the Magistrate Judge's conclusion that there was ample evidence that defendant fired plaintiff for nondiscriminatory reasons. See, e.g., Hutcherson v. City of New York, 1998 WL 661490 at *3 (S.D.N.Y. Sept.25, 1998) (defendant's evidence that supervisor received "numerous complaints from other employees regarding plaintiff's workplace demeanor" states a legitimate, nondiscriminatory reason for bringing plaintiff up on disciplinary charges). Accordingly, the Court adopts the reasoning and findings of the Magistrate Judge.

The Court has also considered plaintiff's other objection, that the Magistrate Judge misinterpreted and misapplied the relevant case law, and finds that it too is without merit. Having considered all of plaintiff's objections, the Court finds that they have no merit and therefore does not credit any of them. For the reasons stated in this opinion, and in the Report, the Court grants defendant's motion for summary judgment.*fn1

III. Conclusion

For the reasons stated in Magistrate Judge Peck's Report, and in this opinion, the Court hereby grants defendant's motion for summary judgment [28-1]. The Court denies plaintiff's motions for summary judgment [26-1] and to move the case to trial [26-2]. The Clerk of Court is directed to close this case. All pending motions are moot.

SO ORDERED.

REPORT AND RECOMMENDATION

To the Honorable Kimba M. Wood, United States District Judge.

Pro se plaintiff Ade Adeniji, a Black, Muslim male from Nigeria, has asserted claims of race, national origin and religious discrimination, retaliation and sexual harassment against the Administration for Children Services ("ACS") pursuant to Title VII, 42 U.S.C. § 2000e et seq., as a result of his termination by ACS. ACS has moved for summary judgment.

For the reasons set forth below, the Court recommends that ACS's motion for summary judgment be granted, since (1) one racially biased comment is insufficient to create a hostile work environment; (2) Adeniji failed to show he was treated differently than persons outside the protected race and national origin classes; (3) Adeniji did not assert his religious discrimination claim before the EEOC; (4) Adeniji did not demonstrate that he was terminated as a pretext for retaliation; and (5) Adeniji did not show that he was subject to sexual harassment.

FACTS

The following facts are undisputed unless otherwise stated:*fn1

ACS hired Adeniji as a caseworker on July 11, 1988. (ACS Rule 56.1 Stmt. ¶ 5; Adeniji Rule 56.1 Stmt. ¶ 2.)

ACS received complaints from ACS clients, supervisors and other professionals about Adeniji's interaction with clients between 1989 and 1993. (ACS Rule 56.1 Stmt. ¶ 8; Ligorner Aff.Ex. B; Adeniji Rule 56.1 Stmt. ¶ 8; see also Ligorner Aff.Ex. C.)

From June 1994 to July 14, 1995, Adeniji served as a homemaking liaison in ACS's Bronx field office, a position which did not require client interaction. (ACS Rule 56.1 Stmt. ¶ 10; Ligorner Aff.Ex. A: Adeniji Dep. at 131, 133.) On July 14, 1995, Adeniji told the Bronx Borough Director, Mayra Juliao-Nunez, that he was working out of title and that he was not being sufficiently compensated for his work. (ACS Rule 56.1 Stmt. ¶ 11; Adeniji Rule 56.1 Stmt. ¶ 19; see also Ligorner Aff.Ex. C: 7/14/95 Nunez Memo.) As a result, Ms. Nunez reassigned Adeniji to the MILS unit of the Bronx field office. (ACS Rule 56.1 Stmt. ¶ 12; Ligorner Aff.Ex. A: Adeniji Dep. at 146; Adeniji Rule 56.1 Stmt. ¶¶ 19-20; Ligorner Aff.Ex. C: 7/14/95 Nunez Memo.) Nunez reported to the Office of Labor Relations that she reassigned Adeniji because:

  he could not perform well around clients, work well
  with the staff, and . . . he had even been banned
  from court activities. His behavior was also becoming
  more disturbed. He was having frequent arguments with
  staff, superiors and overall getting out of hand in
  his behavior. As a liaison for homemaking he was not
  helpful to the people he was supposed to help. He
  became verbally abusive, disruptive and defiant.
  Moreover, he claimed in a very adamant way, that he
  was working "out of title" anyway, and that he should
  be in a caseworker position and not in a Sup I
  position. This claim was the trigger in the
  conversation that confirmed the need for the decision
  to remove him to his current assignment as a
  caseworker in the MILS unit.

(Ligorner Aff.Ex. C: 9/22/95 Nunez Memo.)

On August 11, 1995, Adeniji filed a grievance requesting that he be returned to unit 316, the homemaking unit. (ACS Rule 56.1 Stmt. ¶ 11; Ligorner Aff.Ex. A: Adeniji Dep. at 148; Adeniji Rule 56.1 Stmt. ¶¶ 21, 29.) In October 1995, Nunez reassigned Adeniji to unit 376, a Protective Development ("PD") unit, where he was assigned homemaking duties. (ACS Rule 56.1 Stmt. ¶ 12; Ligorner Aff.Ex. A: Adeniji Dep. at 159-160; Adeniji Rule 56.1 Stmt. ¶ 21.) According to Adeniji, Unit 376 consisted of one African supervisor, one African-American supervisor, and four African caseworkers. (Ligorner Aff.Ex. A: Adeniji Dep. at 159.)

On November 29, 1995, during a caseworkers' conference at which Adeniji was present, a caseworker in the Bronx Field Office, Mirta LaFontaine, said to Adeniji "you [are] not a king in Africa anymore, that you [are] subject to the rules of our office." (ACS Rule 56.1 Stmt. ¶ 14; Adeniji Rule 56.1 Stmt. ¶ 22; Ligorner Aff.Ex. D & Adeniji Aff.Ex. B: LaFontaine Dep. at 14-15; Ligorner Aff.Ex. A: Adeniji Dep. at 182.) Adeniji complained to Nunez about LaFontaine's remark. (Ligorner Aff.Ex. A: Adeniji Dep. at 138.) Adeniji claims that Nunez responded by saying "Ms. LaFontaine has a right to say what she said." (Adeniji Br. at 33; Ligorner Aff.Ex. A: Adeniji Dep. at 138.) LaFontaine's remark was the only racial remark anyone at ACS made to Adeniji. (Ligorner Aff.Ex. A: Adeniji Dep. at 307, 354.)

On December 14, 1995, Nunez ordered Adeniji temporarily reassigned to a central home care unit in Manhattan for fifteen days. (ACS Rule 56.1 Stmt. ¶ 15; Adeniji Rule 56.1 Stmt. ¶ 23.) Nunez stated that she reassigned Adeniji because it "was an assignment that was compatible to what he was doing and we needed a break and he needed a break to sort out what was happening in his behavior," in other words, ACS "needed to get him out of the Bronx field office . . . because of his behavior" problems. (Ligorner Aff.Ex. F: Nunez Dep. at 80-82, 84.) Article VII, Section (2)(c)(v)(7) of the 1992-1995 Social Services Agreement states that:

  [ACS] shall have the right to transfer an employee on
  an emergency basis for not more than fifteen (15)
  working days. . . . Where feasible, [ACS] will not
  assign an employee on an emergency basis more than
  one every six (6) months. The need for an emergency
  transfer shall be declared by the agency head or
  his/her designee.

(Ligorner Aff.Ex. E: 1992-1995 Soc. Serv. Agreement art. VII; see ACS Rule 56.1 Stmt. ¶ 16.) Adeniji asserts that he was "maliciously retaliatory [sic] and punitively reassigned to the Home Care Unit without any advanced notification nor did it appear to be an emergency." (Adeniji Rule 56.1 Stmt. ¶ 23.)

On December 15, 1995, Eileen Anderson, Deputy Director of the Bronx field office, told Nunez that Adeniji was "discontent with the [re]assignment," and became "very upset and express[ed] his usual threats of calling every politician in the city if his demands were not met." (Ligorner Aff.Ex. C: 12/18/95 Nunez Memo.) Adeniji "made a series of threats, and appeared to have been at the verge of physically attacking [Anderson] as he presented body language that was very threatening. Ms. Anderson expressed that she was very scared as Mr. Adeniji's behavior was very closed of [sic] being violent." (Id.)

On December 28, 1995, the Executive Director of the ACS Office of Personnel Services requested that Adeniji be terminated, citing "[t]he many instances of disruptive, insubordinate, verbally abusive and intimidating behavior," and stating that "the problems with Mr. Adeniji have been going on for sometime and have become increasingly intolerable." (Ligorner Aff.Ex. G: 12/28/95 Rosalind Clarke Memo; see ACS Rule 56.1 Stmt. ¶ 18.) Clarke stated that "[a]side from Mr. Adeniji's overt outbursts and inappropriate behavior, he is a definite threat to our clients and the children whom we are entrusted to protect. He is a danger to the Agency and continues to undermine its programs." (Ligorner Aff.Ex. G.) ACS, however, took no action at that time.

On February 1, 1996, Adeniji was reassigned from unit 376 to unit 316, a homemaking unit. (ACS Rule 56.1 Stmt. ¶ 19; Adeniji Aff.Ex. J: 2/1/96 Stewart Memo.) Adeniji was pleased with the reassignment. (See Adeniji Aff.Ex. J: 2/11/96 Stewart Memo, acknowledging Adeniji's "expressed gratitude and satisfaction regarding [his] reassignment to Homemaking unit `316'.")

On March 18, 1996, James Stewart, a unit 316 supervisor, reported to Deputy Director Anderson that Adeniji had displayed "unprofessional behavior and disgruntled attitude" since he was reassigned to unit 316. (Ligorner Aff.Ex. C: 3/18/96 Stewart Memo at 1.) Stewart reported that Adeniji "rushed into my office extremely irate, frantically waving a [request for leave slip] demanding of me to sign it," and threatening "`that if I did not approve his two (2) day request he would not be responsible if he was to come to the office with a gun and shoot it up.'" (Id.; see also ACS Rule 56.1 Stmt. ¶ 22.) By March 18, 1996, Adeniji had been written up by supervisors and co-workers for unprofessional behavior at least eighteen times. (See Ligorner Aff.Ex. C.)

On March 21, 1996, Anderson served Adeniji with a Notice and Statement of Charges, charging him with: (1) "display[ing] violent and inappropriate and threatening physical behavior toward" Anderson on December 15, 1995; (2) "shouting and cursing" in front of Mayra Juliao-Nunez; (3) "rant[ing] and threaten[ing]" Nunez when she "directed [Adeniji] to help the O.C.M. office with forms," in September 1995, and acting "insubordinate" and "unprofessional"; and (4) becoming "violent and . . . throwing things around and kicking the desk and chairs" on July 11, 1995. (Ligorner Aff.Ex. J; Adeniji Aff.Ex. I; see also ACS Rule 56.1 Stmt. ¶ 23; Adeniji Rule 56.1 Stmt. ¶ 30.)

On April 2, 1996, Adeniji filed a discrimination complaint with the New York City Human Resources Administration Office of Equal Employment Opportunity ("HRA EEO"). (ACS Rule 56.1 Stmt. ¶ 24; Adeniji Rule 56.1 Stmt. ¶ 32; Ligorner Aff.Ex. L; Adeniji Aff.Ex. K.) The next day, he filed a charge with the EEOC alleging discrimination based upon race, national origin, sex and retaliation. (ACS Rule 56.1 Stmt. ¶ 25; Ligorner Aff.Ex. M; Adeniji Rule 56.1 Stmt. ¶ 32.) The HRA EEO found "insufficient evidence to substantiate [Adeniji's] allegations." (Ligorner Aff.Ex. P: 6/10/96 HRA EEO Letter; see ACS Rule 56.1 Stmt. ¶ 28.)

On November 6, 1996, Adeniji was served with a second disciplinary charge. (Adeniji Rule 56.1 Stmt. ¶ 37; Adeniji Aff. Ex. I.) That charge alleged: (1) Adeniji threatened to "`come to the office with a gun and shoot it up'" if Supervisor James Stewart did not sign his request for leave on February 13, 1996; (2) Adeniji "interrupted a managerial meeting with an angry and menacing posture, [he] verbally attacked fellow employees" on March 8, 1996; and (3) Adeniji refused to carry out work assignments. (Adeniji Aff.Ex. I.)

A hearing was held before the Office of Labor Relations on November 18, 1996; the Hearing Officer found Adeniji guilty of the charges alleged in the November 1996 specification and recommended that Adeniji be terminated. (ACS Rule 56.1 Stmt. ¶ 34; Ligorner Aff.Ex. U.) Adeniji appealed the recommendation, and was suspended with pay on December 19, 1996 while the review was pending. (ACS Rule 56.1 Stmt. ¶¶ 35, 36; Ligorner Aff.Exs. V & W.) The third and last hearing was held on January 21, 1997. The hearing officer affirmed the first hearing officer's findings and recommended that Adeniji be terminated ...


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