When Spadola did voice his objection, he did so to the union representative, not to the Authority in accordance with applicable procedures. And he apparently did not pursue the matter when the union declined to press his complaint with management. Rather, he did not raise the issue again until the filing of his charge with the EEOC in November 1997. (Id. at 97.) These circumstances contradict Spadola's assertions that he had a genuine, good faith belief that, at the time the July 1997 Incident occurred, Washington's conduct constituted unlawful sexual harassment by his employer and that he reasonably felt he was opposing a violation of Title VII when he objected to the remark in question.
Second, under the totality of the circumstances, Washington's words, uttered during a heated encounter with Spadola, represented an offhand comment arising out of an isolated incident. Spadola presents no evidence that Washington's conduct was repeated, or that it otherwise manifested a work environment objectively hostile or abusive and so pervasive or severe as to alter the conditions of his employment. See Harris, 510 U.S. at 21-22, 114 S.Ct. 367. In fact, the remark was spoken by a co-worker who was not Spadola's supervisor and, indeed, whom he had not met prior to the incident. The comment occurred during a tense verbal altercation in front of Spadola's supervisor. It conveyed nothing that evinced any endearing gender overtones or overtures under circumstances suggestive of unwanted, threatening or humiliating sexual advances that would unreasonably interfere with the employee's work or cause psychological harm, which form the hallmarks of serious misconduct ordinarily associated with unlawful sexual harassment. See Harris, 510 U.S. at 21-22, 114 S.Ct. 367; Quinn, 159 F.3d at 767-68; Carrero v. NYC Housing Auth., 890 F.2d 569, 577-78 (2d Cir. 1989); see also Richardson v. N.Y.S. Dep't Corr. Serv., 180 F.3d 426, 436-437 (2d Cir. 1999).
Spadola contends that he regarded Washington's words as inappropriate and impermissible under the Authority's discrimination policy. While it is true that Spadola is not required to demonstrate that the conduct in question would actually qualify as unlawful harassment, see Quinn, 159 F.3d at 769, his subjective belief by itself, even if held in good faith, would be insufficient if it were not reasonable. See Breeden, 532 U.S. at 270-71, 121 S.Ct. 1508.
The Court concludes that no rational jury could find that, under the totality of the circumstances evidenced here, Washington's isolated allegedly harassing remark made during the July 1997 Incident constituted a sufficient ground to support a good faith, objectively reasonable belief that the offending conduct constituted a violation of Title VII, and that Spadola had thus engaged in a protected activity when he protested the comment as an unlawful employment practice. See id. Insofar as the other unlawful practices Spadola alleges are predicated on retaliation arising from his asserted protected activity stemming from that episode, the claims would founder on the same grounds.
Accordingly, Spadola fails to satisfy the first element of a sufficient Title VII retaliation claim.
2. Causal Relationship
The Court finds that Spadola's evidence is also insufficient to establish the causation element of a retaliation claim: the relationship between the alleged protected activity and the adverse employment action. First, Spadola's dismissal occurred in July 1999, over two years after the July 1997 incident that gave rise to Spadola's alleged protected activity and nearly 20 months from the date Spadola filed his charge with the EEOC complaining of sexual harassment. Courts have uniformly held that the longer the interval between the protected activity and the adverse employment action, the more attenuated becomes the evidence of the requisite causation. See Breeden, 532 U.S. at 273, 121 S.Ct. 1508 ("The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be `very close.'") In Breeden, the Supreme Court, citing cases which had found three and four months insufficient, concluded that action taken 20 months after the alleged protected activity "suggests, by itself, no causality at all." Id. at 274, 121 S.Ct. 1508.
Spadola asserts that there is direct evidence of a causal connection between his threat to file a sexual harassment charge in connection with the July 1997 Incident and his suspension soon thereafter; that the Authority intensified its campaign of retaliatory harassment and intimidation, following unusual procedures, after he filed his EEOC charge in November 1997; and that some of the same individuals involved in the 1997 and 1998 disciplinary proceedings also played substantial roles in his final dismissal in 1999. He claims that each of these events constitute separate acts of retaliation and adverse employment actions cognizable under Title VII. The Court disagrees.
First, Spadola's contention is premised on a finding that in fact he had engaged in a protected activity when he protested Washington's remark. The Court has already concluded above that the evidence on the record is insufficient to support a reasonable finding to that effect. Second, beyond conclusory statements, speculation and remotely related circumstantial leaps and inferential bounds, Spadola presents no compelling evidence of any action by the Authority substantiating his theory that every employment adversity that befell him after July 27, 1997 causally arose from his purported objection to Washington's isolated, offhand comment to him during their confrontation that day. In fact, the record sufficiently points to the contrary.
On three separate occasions in March, August and September, fellow employees complained to Spadola's supervisors of abusive, inappropriate conduct on his part. The Authority took no action following investigations of the incidents. These circumstances could not reasonably support a determination that his fellow employees' complaints, concerning which Spadola offers no reason as to why they should have been ignored under applicable regulations and procedures, constituted part of a "campaign of harassment" by the Authority, or that the Authority's inconclusive investigations could be characterized as adverse employment actions. Nor is there a trace of evidence on this record to sustain a reasonable inference that the complaints by Spadola's fellow employees about his conduct and the Authority's corresponding investigations in 1998 bore any causal connection with the charges of sexual harassment Spadola threatened or filed in 1997.
Though Spadola points to the proximity between the filing of his EEOC charge on November 14, 1997 and his second dismissal on November 24, 1997 as sufficient causation, this evidence is not dispositive. The investigation that led to the Authority's disciplinary proceeding arising out of the false overtime charges commenced sometime in July and the administrative proceedings were well underway at the time Spadola filed his EEOC charge. Under these circumstances, the Authority was not obligated to automatically cease or abandon an ongoing internal disciplinary procedure merely because an employee files a charge alleging discrimination. See, e.g., Breeden, 532 U.S. at 272, 121 S.Ct. 1508 ("Employers need not suspend previously planned transfers upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.")
With regard to his final dismissal in July 1999, Spadola similarly has the burden to produce sufficient evidence to support a rational finding that there was a causal connection between his discharge and his allegedly protected activity, that the grounds proffered by the Authority for its action were false and pretextual and did not constitute legitimate, neutral reasons, and that more likely that not discriminatory retaliation was the real ground for the termination of his employment. See Hicks, 509 U.S. at 506-07, 113 S.Ct. 2742; Van Zant, 80 F.3d at 714.
The Court finds that Spadola has not satisfied this burden. The record is more than ample to establish that the disciplinary charges the Authority instituted in June 1999 that resulted in Spadola's dismissal and that were the subject of the arbitration before Wittenberg related solely to the incident involving Felix. Spadola's termination in accordance with the charges brought against him were upheld by a neutral arbitrator pursuant to a collective bargaining agreement. This determination, absent compelling showing of bias or other impropriety, or that the ruling was not based on substantial evidence and thus was wrong as a matter of fact, is entitled to be accorded in this action highly probative weight of absence of discriminatory intent. See Collins v. New York City Transit Auth., 305 F.3d 113, 119 (2d Cir. 2002). ("[A] decision by an independent tribunal that is not itself subject to a claim of bias will attenuate a plaintiff's proof of the requisite causal link.")
Spadola presents no evidence that casts any doubt on the impartiality of the arbitrator or that otherwise suggests that the fairness of the arbitration proceeding was compromised. Nor does he point to relevant facts not properly weighed by the arbitrator that would demonstrate that the arbitration award was not supported by substantial evidence. Spadola was represented by counsel during the proceeding and fully aired his version of the June 1999 confrontation. Wittenberg acknowledged and considered this evidence. (Lendino Decl. Ex. H, at 4.) Though Spadola argues that Wittenberg did not address the July 1997 Incident as a consideration, there is no indication in the record that the issue was specifically raised, nor that it was necessarily relevant to the determination of the grievance Wittenberg was called to arbitrate.
The Court thus concludes that Spadola has not satisfied his burden to establish the requisite causation to support a retaliation claim.
3. Pretext for Discriminatory Intent
Under the McDonnell-Douglas burden-shifting formulation that governs Title VII cases, where there are no allegations or direct evidence of acts of discrimination, Spadola is obliged to produce not simply "some" evidence but "sufficient" evidence to support a finding that the numerous charges of misconduct the Authority brought against him in various disciplinary proceedings between 1997 and 1999 and proffered by the Authority as legitimate, non-discriminatory reasons for its suspensions and dismissals of Spadola, were in fact false, and a mere pretext for unlawful discrimination more likely than not motivated by retaliatory animus engendered by Spadola's objection to Washington's 1997 remark. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (quoting Woroski v. Nashua Corp., 31 F.3d 105, 110 (2d Cir. 1994)); see also Hicks, 509 U.S. at 515-517, 113 S.Ct. 2742. Throughout this framework, the ultimate burden of persuasion of demonstrating intentional discrimination remains with the Spadola. See Hicks, 509 U.S. at 507, 113 S.Ct. 2742.
Spadola points to the portion of the disciplinary charges lodged against him following the July 1997 Incident that specifically mentions his alleged "threat to bring false charges of sexual harassment against a member of management. . . ." and Nicolau's rejection of this ground as sufficient basis for a disciplinary action. But Spadola presents no persuasive evidence ultimately demonstrating that intentional discrimination grounded on his purported objections to the alleged sexual harassment, rather than his other recorded disciplinary problems, constituted the real reason for the measures the Authority instituted against him. Counterbalancing Nicolau's reference to the sexual harassment aspect of the Authority's disciplinary charges and overcoming any doubts and ambiguities resolved in Spadola's favor on this motion, as well as diminishing any surface persuasion that may attach to Spadola's claim, is Nicolau's finding that Spadola's conduct, particularly in the light of the evidence of "other episodes," was sufficiently serious to warrant a suspension.
Because, particularly in the context of a related arbitration award whose factual conclusions the Court exercises discretion to credit as highly probative, the sufficiency of Spadola's showing of causation to establish an inference of discriminatory retaliation as an element of his prima case, and that of the legitimacy of the Authority's proffered reason for its adverse employment action, "tend to collapse as a practical matter under the McDonnell Douglas framework," id. at 119 n. 1, the Court deems it unnecessary to consider in any greater depth Spadola's challenge to his 1999 dismissal as pretextual. Suffice it to say that the Court has examined Spadola's assertions of pretext and does not consider them sufficient to satisfy Spadola's burden of persuasion with respect to this test, and that the Court regards the arbitrator's award as more compellingly probative of the legitimate, non-discriminatory reasons proffered by the Authority for its dismissal of Spadola in July 1999.
For the reasons described above, it is hereby
ORDERED that the Court's Order dated December 27, 2002 is amended to incorporate the discussion set forth above; and it is finally
ORDERED that the Authority's motion for summary judgment herein is GRANTED.
The Clerk of Court is directed to close this case.