The opinion of the court was delivered by: JOHN KOELTL, District Judge
The plaintiff Donovan Howard ("Howard") alleges that the defendants,
the City of New York and the New York City Human Resources Administration
("HRA"), are liable to him for employment discrimination and wrongful
termination. The plaintiff has moved pro se for partial summary judgment
on his claims for declaratory and injunctive relief based on the alleged
actions of the defendants' attorneys and on the alleged inability of the
defendants to support their assertions that the plaintiff was terminated
for unsatisfactory work performance and insubordination. After the motion
for partial summary judgment was fully briefed, the plaintiff submitted a
motion for sanctions pursuant to Rule 11(c) of the Federal Rules of Civil
Procedure based on the defendants' alleged failure to file their
opposition papers promptly.
The plaintiff was employed by the HRA as a provisional Fraud
Investigator, Level I, from on or around August 2, 1999 until June 30,
2000. (Def.'s Rule 56.1 St. ¶ 1.) In his job, the plaintiff was
responsible for investigating possible fraud or misconduct among
officials, employees, contract agencies, and clients. (Id. ¶ 3.) The
plaintiff was terminated on June 30, 2003 and has brought three causes of
action. First, he has alleged that his termination was the result of
discrimination based on race, color, and gender in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a). Second, he
alleges that he was subjected to a hostile work environment, primarily by
his supervisor, Nancy Duplessy ("Duplessy"). Third, the plaintiff claims
that the defendants retaliated against him for, among other things, his
complaints about Duplessy and his requests to be transferred. See
42 U.S.C. § 2000e-3(a). The plaintiff moves for partial summary judgment
on these claims.
The defendants contend that the plaintiff was terminated for legitimate
and nondiscriminatory reasons. In opposition to the plaintiff's motion,
the defendants have submitted the affidavit of Zivko Pulisic ("Pulisic"),
who was the site manager of the plaintiff's work location and who is
personally familiar with the circumstances surrounding the plaintiff's
(See Aff. of Zivko Pulisic, Deputy Director of HRA's Eligibility
Verification Review Program ("Pulisic Aff."), dated July 16, 2003, at ¶
1, attached at Decl. of Assistant Corporate Counsel Sara Mason ("Mason
Decl."), Ex. B.) Pulisic stated that the plaintiff's "termination was due
in part to his poor work performance, which included his inappropriate
behavior with interviewees and his pattern of lateness." (Pulisic Aff.
58.) To support this allegation, the defendants have submitted documents
from the plaintiff's employment file, including complaints and memoranda
that allegedly memorialize a pattern of improper conduct and delinquency
by the plaintiff. (See id. ¶¶ 9-10; Mason Decl., Exs. D, E.) The defendants
have also submitted an employee evaluation that gave the plaintiff an
overall rating of "unsatisfactory" and commented on his allegedly
insubordinate behavior. (Id. Ex. C.)
The plaintiff maintains that the allegations about his poor work
performance are not true and were made in retaliation by Duplessy and
others in the HRA. The plaintiff further accuses defense counsel of
acting in bad faith and making intentional misrepresentations of fact by
arguing that he was terminated for poor job performance.
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
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 Can 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
As an initial matter, the plaintiff's motion is procedurally
defective. The plaintiff failed to include a statement of undisputed
facts as required by Local Rule 56.1. The plaintiff, in his reply to the
defendants' opposition papers, attempts to state undisputed material
facts but instead provides a list of legal conclusions and accusations
that, at best, merely dispute the facts as presented by the defendants.
The failure of a moving party to provide a Local Rule 56.1
Statement is typically sufficient grounds to dismiss the motion, although
pro se litigants may be given some latitude. See In re Motel 6 Sec.
Litig., 161 F. Supp.2d 227, 232 (S.D.N.Y. 2001); Armstrong v. Tucker, No.
97 Civ. 7388, 2000 WL 33593292, at *2 (S.D.N.Y. Feb. 29, 2000). The
plaintiff also failed to request a conference before making his motion.
Requesting a conference is a reasonable requirement and would have, for
example, helped ensure that the plaintiff was aware of what had to be
submitted to make his motion. Nonetheless, the motion will be considered
on the merits.
The plaintiff first moves for partial summary judgment on the claim
that the defendants wrongfully terminated and discriminated against him
based on race, color, and gender in violation of Title VII. See
42 U.S.C. § 2000e-2 (a)(1)*fn1 Claims of discrimination under Title VII
are analyzed at the summary judgment stage under the burden-shifting test
announced by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
See Hawana v. City of New York, 230 F. Supp.2d 518, 526 (S.D.N.Y.
2002). The plaintiff carries the initial burden of establishing, a prima
facie case of discrimination by alleging that he (1) is a member of a
protected class; (2) was performing his job satisfactorily; (3) was
subjected to an adverse employment action; and (4) the adverse employment
action occurred under circumstances giving rise to an inference of
discrimination. See Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 142 (2000); McDonnell Douglas, 411 U.S. at 802; Chambers, 43
F.3d at 37.
Once the plaintiff has demonstrated the elements of a prima facie
case, the burden of production shifts to the defendants to put forth a
legitimate, nondiscriminatory reason for the employer's challenged
action. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53
(1981). After the defendants articulate a legitimate reason for the
action, the presumption of discrimination raised by the prima facie case
drops out, and the plaintiff bears the ultimate burden of demonstrating
that his membership in a protected class, rather than the reasons
proffered by the defendants, was the true basis for the employment
decision. Id. at 254-56; see also Reeves, 530 U.S. at 143; Chambers, 43
F.3d at 38; Hawana, 230 F. Supp.2d 526.
The defendants have articulated a legitimate reason for the plaintiff's
termination and have submitted ample evidence to support their allegation
that the plaintiff's "termination was
due in part to his poor work performance, which included his
inappropriate behavior with interviewees and his pattern of lateness."
(Pusilic Aff. ¶ 8.)*fn2 The defendants have produced documents from the
plaintiff's employment file, including complaint forms and memoranda from
supervisors alleging that the plaintiff was rude and acted
inappropriately during interviews. (See Mason Decl. Ex., D.) One
complaint was filed by a client/interviewee, and multiple complaints were
made by translators who worked with the plaintiff during ...