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HAWANA v. CITY OF NEW YORK

November 11, 2002

A. HAMEED HAWANA, PLAINTIFF,
V.
CITY OF NEW YORK, DEFENDANT



The opinion of the court was delivered by: John G. Koeltl, United States District Judge

    OPINION AND ORDER

The plaintiff, A. Hameed Hawana, who appears pro se, brings this action against his former employer, the City of New York ("the City"). The plaintiff alleges that the City discriminated against him on the basis of race, gender, national origin, age, color and disability in violation of Title VIII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the Americans with Disabilities Act, 42 U.S.C. § 12112 et seq. ("ADA"). While the plaintiff did not specifically allege a violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), liberally construed his complaint concerning age discrimination is a complaint alleging a violation of the ADEA. The plaintiff further alleges retaliation, as well as same-sex sexual harassment at the hands of a supervisor. The defendant now moves for summary judgment pursuant to Fed.R. Civ. P. 56.

The evidence submitted to the Court reflects the following facts as construed in the light most favorable to the plaintiff. The plaintiff describes himself as a man of Egyptian race and national origin, currently age 58, suffering from severe depression, sleep and panic disorders, and high blood pressure. (Compl. ¶ 7.) On September 18, 1986, the plaintiff was hired as a caseworker by a predecessor agency to the New York City Administration for Children's Services ("ACS"). (Def.'s Rule 56.1 St. ¶ 1; Pl.'s Resp. Rule 56.1 St. ¶ 1; Deposition of A. Hameed Hawana ("Hawana Dep.") at 126.) Between April 1997 and October 1999, numerous coworkers and supervisors filed internal grievances against the plaintiff alleging misbehavior including creating an intimidating, hostile and offensive work environment, making sexual gestures and remarks towards female coworkers, and calling a coworker "you fucking bitch." (Memoranda Re: Plaintiff's Behavior dated Apr. 17, 1997 — Oct. 29, 1999 attached as Exs. M-DD to Declaration of Donald C. Sullivan dated Apr. 22, 2002 ("Sullivan Decl.").) The plaintiff attacks the veracity of these allegations. (Declaration of A. Hameed Hawana dated June 10, 2002.) Between 1996 and 1999, the plaintiff filed repeated requests to be transferred out of his Manhattan ACS office but the transfers were denied. (Transfer Requests dated May 3, 1996 Oct. 5, 1999 attached as Exs. 2-8, 14, 15 to Pl.'s Mem. Opp. Sum. J.)

On September 18, 1997 the plaintiff filed a discrimination charge with the New York City Commission on Human Rights ("CCHR") in which he alleged that his Supervisor, Douglas Solomon, Coordinator Mara Milat, and Directors Frank Olton and John Pape discriminated against him because he was male and Egyptian. (Def.'s Rule 56.1 St. ¶ 5; Pl.'s Resp. Rule 56.1 St. ¶ 5; CCHR Complaint dated September 18, 1997 ("CCHR Compl.") ¶¶ 8-11 attached as Ex. HH to Sullivan Decl.) The plaintiff alleged that Mr. Solomon sexually harassed him, and that Ms. Milat, Mr. Olton, and Mr. Pape failed to stop the harassment. (CCHR Compl. ¶¶ 8, 9.) Hawana also alleged that all four individuals subjected him to disparate treatment because he was male and Egyptian. (Id. ¶¶ 8-11.) The CCHR dismissed the plaintiff's complaint, finding no probable cause to believe the defendant's employees had engaged in the unlawful discriminatory practices or sexual harassment alleged by the plaintiff. (CCHR Determination and Order After Investigation dated Oct. 19, 1998 ("CCHR Det.") attached as Ex. II to Sullivan Decl.).

In November 1997, Charges and Specifications were brought against the defendant for a series of offenses including stealing a co-worker's lunch and threatening the Supervisor who investigated the incident. (ACS Charges and Specifications dated Nov. 21, 1997 attached as Ex. D to Sullivan Decl.) Proceedings on the matter were eventually adjourned in order for the parties to pursue their own solution. (Letter from Roger A. Hannon to A. Hameed Hawana dated Dec. 19, 1997 attached as Ex. OO to Sullivan Decl.) However, ACS eventually suspended Hawana for ten days as a result of his misconduct in 1997. (New York Office of Collective Bargaining Decision dated Apr. 28, 2002 ("OCB Dec.") at 2 attached as Ex. A to Declaration of Jennifer Labate dated Oct. 21, 2002 ("Labate Decl.").).

Less than two years later, Charges and Specifications were again brought against the plaintiff but this time the alleged offenses were more serious. (ACS Charges and Specifications dated Aug. 4, 1999 attached as Ex. E to Sullivan Decl.) For example, Hawana allegedly told a coworker that he was going to "pick something up and beat the shit" out of his supervisor and posted a cartoon in his work space displaying the female genital area. (Id.) On August 25, 1999 an Informal Conference Hearing was held to address these incidents. (Informal Conference Decision and Recommended Penalty dated Oct. 25, 1999 ("Conference Dec.") attached as Ex. F to Sullivan Decl.) The Conference Leader found all of the charges against the plaintiff to be substantiated and recommended that Hawana be terminated. (Id.)

Hawana filed a complaint with the United States Equal Employment Opportunity Commission ("EEOC") on December 10, 1999. (Def.'s Rule 56.1 St. ¶ 11; Pl.'s Resp. Rule 56.1 St. ¶ 11; EEOC Complaint dated Dec. 19, 1999 ("EEOC Compl.") attached as Ex. JJ to Sullivan Decl.) The plaintiff alleged incidents involving Ms. Milat, Mr. Olton, Mr. Pape and Ms. Doris Franko that he believed exhibited discrimination against him on the basis of his national origin, religion and disability in violation of Title VII and the ADA. (EEOC Compl.) The plaintiff also claimed that the defendants retaliated against him for filing earlier complaints. (Id.) The EEOC issued Hawana a right-to-sue letter on June 9, 2002. (Right-to-Sue Letter dated June 9, 2002 ("Right-to-sue Letter") attached to Complaint in Ex. A to Sullivan Decl.).

On December 7, 1999, a Step II hearing was held to review Hawana's appeal of the termination recommendation made by the Informal Conference Hearing Officer in October of that year. (Determination of Grievance Step II dated Jan. 12, 2000 ("Step II Det.") attached as Ex. H to Sullivan Decl.) The Hearing officer upheld the recommended penalty based on the nature and severity of the offenses after finding that Hawana's excuses for his actions were neither credible nor supported by testimony or investigation. (Id.)

Further Charges and Specifications were filed against the defendant on December 28, 1999. (ACS Charges and Specifications dated Dec. 28, 1999 attached as Ex. G to Sullivan Decl.) The charges accused Hawana of making a total of approximately 755 unauthorized and personal phone calls between December 1998 and March 1999. (Id.)

The plaintiff's termination became effective February 10, 2000. (Letter from Nicholas Scoppetta to A. Hameed Hawana dated Feb. 10, 2000 attached as Ex. J to Sullivan Decl.) The decision, as well the earlier 10-day suspension, were upheld by the New York Office of Collective Bargaining on April 28, 2002. (OCB Dec.)

At the hearing before the OCB arbitrator the plaintiff was represented by a lawyer for his union. The arbitrator held five days of hearings and heard testimony from the plaintiff, as well as from witnesses offered by both the plaintiff and the City. The arbitrator accepted written submissions and thereafter rendered a thorough opinion. The arbitrator concluded:

After having been counseled numerous times by his supervisors, Mr. Hawana committed many acts of misconduct including taking a co-worker's lunch, threatening supervisors, disrespecting supervisors and co-workers, harassing female employees, leaving work early, disregarding assigned work, disseminating sexually explicit material, and cursing co-workers. Virtually all of the charges have been substantiated by witnesses presented by the City. It is significant that the witnesses who corroborated the charges were not just supervisors, but co-workers who had witnessed Mr. Hawana's misconduct.
I find the witnesses who corroborated the charges against Mr. Hawana to be credible. They had no personal animosity toward Mr. Hawana and they each testified about different instances of Mr. Hawana's misconduct. Their testimony was consistent and established a pattern of behavior by Mr. Hawana. No matter how many times he was told not to be disrespectful of female co-workers and to stay away from female co-workers unless he had business with them, he disregarded the warnings. He regularly and consistently disrespected supervisors and even went so far as to make threatening gestures and remarks.
X X X
Additionally, Mr. Hawana has not acknowledged that he did anything wrong. He has not indicated he has any understanding of what conduct is not acceptable. He thinks he can curse and threaten his supervisors, harass and bother his female co-workers, and generally show disrespect for many of his co-workers. Mr. Hawana's misconduct has been consistent and persistent for the better part of at least three years. He has been counseled numerous times. The City unsuccessfully tried to explain to Mr. Hawana that his conduct was not acceptable and how he had to improve. He made no effort to improve and continued his disregard of supervisors' and co-workers' rights.

The plaintiff filed this action on November 9, 2000 alleging retaliation and discrimination based on his Egyptian race and national origin, color, sex, and age.

I.

The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible" Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases).

Where, as here, a pro se litigant is involved, although the same standards for dismissal apply, a court should give the pro se litigant special latitude in responding to a summary judgment motion. See McPherson v. Coombe, 174 F.3d 276, 279 (2d Cir. 1999) (courts "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest'") (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). In particular, the pro se party must be given express notice of the consequences of failing to respond appropriately to a motion for summary judgment. See McPherson, 174 F.3d at 281; Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999); Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996); Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988). In this case, by Notice to Pro Se Litigant Opposing Motion for Summary Judgment dated April 22, 2002, the plaintiff was advised of the procedures for responding to a motion for summary judgment, including the requirement to submit a response to the defendant's Rule 56.1 Statement and to submit counter-evidence and the plaintiff was provided with a copy of Rule 56. The plaintiff thereafter submitted a timely response to the motion, together with a response to the Defendant's Rule 56.1 Statement.

II ...


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