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March 25, 2003


The opinion of the court was delivered by: Sweet, District Judge


Defendant the New York Botanical Garden (the "Garden") has moved pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 56.1 to dismiss the complaint of plaintiff Paul Evans ("Evans"), who alleges that he was fired as a result of racial discrimination and his filing of a complaint with the New York State Division of Human Rights. Evans has also moved pursuant to Fed.R.Civ.P. 15(a) to amend his complaint to include a claim that the Garden's actions were in contravention of 42 U.S.C. § 1981.

For the following reasons, Evans's motion to amend his complaint is denied, and the Garden's motion for summary judgment is granted.

Prior Proceedings

Evans commenced suit on May 8, 2002 against the Garden and two of its employees, Gregory Long and John Rorer, alleging (1) racial discrimination in contravention of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 1981 ("Section 1981"), the New York Executive Law § 290, et seq., (the "Executive Law"), and the New York City Administrative Code ("City Law"); and (2) unlawful retaliation in violation of Title VII, Section 1981, the Executive Law, and the City Law.

By order dated September 4, 2002, Evans' Section 1981 claims were dismissed because they were found to be precluded by an earlier determination of "no probable cause" by the New York State Division of Human Rights, and it further was noted that Evans had withdrawn his claims under the Executive Law and the City Law. Evans v. New York Botanical Garden, 2002 WL 31002814, at *6 (S.D.N.Y. Sept. 4, 2002). Leave was granted to seek to amend the complaint to add the dismissed § 1981 claims if new evidence was discovered that suggested that Evans did not have a full and fair opportunity to litigate his claims in the state administrative proceeding.

On December 11, 2002, Evans filed the instant motion to amend his complaint to add the § 1981 claims. The Garden responded on January 9, 2003.

On December 18, 2002, the Garden filed the instant motion for summary judgment. Evans responded on February 5, 2003, and the Garden replied on February 11, 2003.

Both motions were considered fully submitted on February 12, 2003.


As befits a motion for summary judgment, the following facts are derived from the parties' Local Rule 56.1 statements.

Since 1989, the Garden has sponsored a community outreach program throughout the borough of the Bronx, called the Bronx Green-Up Program (the "Program" or "BGU"). BGU primarily assists neighborhood groups in the Bronx to develop and maintain community gardens by providing technical assistance in garden development and the care of established gardens. Some portion of the gardens that participate in BGU are marked with signs for public relations purposes demonstrating the Garden's involvement with community gardens.*fn1

The BGU during the relevant times also administered a composting project, funded by the New York City Department of Sanitation (the "Compost Project"). As part of the Compost Project, the Garden and the Sanitation Department entered into a contract in an effort to recycle certain products and reduce the amounts of organic waste.

In August 1996, Evans was hired as the director of the BGU. In that position, Evans' main responsibilities were to oversee the outreach to community gardens. One facet of this task was to supervise staff whose responsibility it was to keep an inventory list*fn2 of the participating gardens and put signs in community gardens to demonstrate the Garden's involvement. As part of his job, Evans also was required to supervise seasonal interns and six employees, assist in fund-raising, and oversee the Compost Project.

When Evans was first hired in 1996 until March or April of 1998, Richard Schnall ("Schnall") was his direct supervisor. From that time until July 1998, Joseph Kerwin ("Kerwin") was his direct supervisor. Evans does not allege that he was subjected to any discrimination during the time that Schnall and Kerwin were his supervisors.

In July 1998, BGU was transferred from the Horticulture Department to the Children's Education Department. Consequently, Elaine Drazin, associate vice-president for Children's Education ("Drazin"), became Evans's supervisor. Drazin did not work closely with Evans despite her nominal title as his supervisor.

In the winter of 1998, the Garden's president, Gregory Long ("Long") had a meeting with Assemblywoman Gloria Davis, who held the 79th Assembly District seat in the Bronx from 1980 to January 2003 ("Davis"). In that meeting, Davis told Long that she had never seen any BGU signs in any of the gardens in her district. As a result, Long later instructed Evans to make sure that each garden in Davis's district had a sign. Prior to that time, Long had also inquired about Evans' program for posting and/or replacing signs in the spring of 1997. In addition, Evans' performance evaluation dated March 10, 1998, set as one of Evans' performance goals for 1998 the "better documentation of gardens — signage."

In March 1999, Evans was scheduled to receive a performance review for the period of January 1, 1998 to December 31, 1998. Drazin, with input from her supervisor, John Rorer, the chief operating officer and executive vice president of the Garden ("Rorer"), analyzed Evans' work performance and set forth specific goals that Evans was supposed to accomplish.*fn3 Drazin recognized that she "really couldn't make a fair assessment" of Evans' performance due to her lack of contact with Evans.

On March 29, 1999, Evans received his performance evaluation. At that time, Evans admitted that his efforts to update the community garden inventory had not been completed and that he had failed to put up the 325 signs necessary to ensure that all the gardens in Assemblywoman Davis's district had a BGU sign.

On June 17, 1999, one of Evans' subordinates who is white, Michael O'Connor, the BGU program manager ("O'Connor"), tendered his notice of resignation. Evans had hired O'Connor to that post a little less than two years earlier, in October 1997. Drazin accepted O'Connor's resignation and directed Evans to hire another program manager to replace O'Connor.

When Rorer became aware that O'Connor had tendered his resignation, Rorer directed Drazin to find out how to keep O'Connor from resigning. O'Connor told Drazin that he did not want to work directly for Evans, after which time a position was created for O'Connor in which he would no longer have to report directly to Evans.*fn4 That position was that of Community Garden liaison, which O'Connor accepted effective August 16, 1999. In that position, he reported directly to Drazin and his salary was increased from $32,115 to $42,000 per annum.

By letter dated July 1, 1999, Drazin, in conjunction with Rorer, provided Evans with a written warning requiring that performance deficiencies improve.

On July 6, 1999, Evans met with Rorer, Drazin and Earl Brown, the then director of governmental relations. Brown is black. The meeting was ostensibly about BGU, but instead focused on Evans' work performance, areas that ...

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