United States District Court, S.D. New York
January 29, 2004.
DONOVAN HOWARD, Plaintiff, -against- THE CITY OF NEW YORK, and NEW YORK CITY HUMAN RESOURCES ADMINISTRATION, Defendants
The opinion of the court was delivered by: JOHN KOELTL, District Judge
OPINION and ORDER
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 interviews. (See
id.) The employment file also includes forms documenting incidents where
the plaintiff was late either in arriving to work in the morning or in
returning from lunch. (See id.)
Overall, the employment file reveals a deterioration in the working
relationship between the plaintiff and his supervisor, Duplessy,
particularly from January through May 2000. (See Mason Decl., Ex. E.)
Memoranda from Borough Chief Kai Wright memorialize the increasing
hostilities between the plaintiff and Duplessy. (See id.) The conflict
heightened in April 2003 when Duplessy alleged that the plaintiff made
derogatory and offensive comments toward her. (See id.) These
part, led to a recommendation of disciplinary action and ultimately
a recommendation for termination dated May 19, 2000. (See id.)
Further documenting the plaintiff's allegedly substandard work
performance, the defendants provided a Non-Managerial Performance
Evaluation form for the plaintiff for the period of October 1, 1999 to
May 22, 2000. (Mason Decl., Ex. C.) The form was filled out by Duplessy
and signed by the evaluation reviewer, Kai Wright. The plaintiff's
overall rating was "Unsatisfactory." He received a "Marginal" rating for
his investigations of agency officials and an "Unsatisfactory" rating for
his fraud investigations. The evaluator noted that the plaintiff
completed his investigations in an untimely manner and without following
proscribed procedures. The evaluation further stated that the plaintiff
displayed hostility when asked to follow specific agency policies.
Overall, the evaluation raised many of the issues raised in the memoranda
described above: that the plaintiff displayed a lack of discipline, was
insubordinate, and was consistently late.
The plaintiff contends that the characterizations of his work
performance are false and have been made for discriminatory and
retaliatory reasons. To support his assertions, the plaintiff has
provided, among other things, a complimentary letter of recommendation,
dated March 13, 2000, from a Fraud
Investigator Supervisor who worked with the plaintiff, although (not
directly as the plaintiff's supervisor. (See Pl.'s Aff. Supporting
Grounds of Opp. to Defs. Mem. of Law & Disputed Material Facts Dated
11-07-2003, Ex. 2 (Letter from Irene Anthony, Fraud Investigator
Supervisor, dated Mar. 13, 2000).) The plaintiff also submitted the
affidavit of his union representative, Jose Santos, to vouch for the
plaintiff's character and to support his argument that Duplessy falsely
accused the plaintiff of misconduct and targeted him because of his race
and sex. (Id. Ex. 4 (Aff. of Jose Santos, dated Sept. 21, 2000).)
However, at best, the plaintiff's evidence supports his contrary account
of what occurred and shows that material, facts are in dispute.
It is plain that the defendants have articulated a legitimate
nondiscriminatory reason for terminating the plaintiff and have presented
evidence to support that defense. On a motion for summary judgment, the
Court must view the evidence in a light most favorable to the nonmoving
party, and it is clear that the evidence could support a finding by the
trier of fact that the plaintiff was terminated for substandard work
performance and insubordination. The plaintiff has not shown that he is
entitled to summary judgment on the claim that he was termination because
of unlawful discrimination.
The plaintiff also seeks partial summary judgment on his claims that he
was subjected to a hostile work environment and that he was given
negative evaluations and terminated in retaliation for, among other
things, complaints he made against his supervisor and his requests to be
transferred to a different unit. For the same reasons given above, the
plaintiff is not entitled to summary judgment on either claim.
To prevail under a theory that he was subjected to a hostile work
environment based on race or sex in violation of Title VII, the plaintiff
must establish two elements. First he must demonstrate that the
harassment was "sufficiently severe or pervasive to alter the conditions
of [the victim's] employment and create an abusive working environment."
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (alteration
in original) (internal quotation omitted); see also Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); Fitzgerald v. Henderson,
251 F.3d 345, 356 (2d Cir. 2001). The plaintiff must establish that the
work environment was objectively and subjectively hostile and must show
"either that a single incident was extraordinarily severe, or that a
series of incidents were sufficiently continuous and concerted to have
altered the conditions of [his] working environment." Cruz v. Coach
Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (internal
quotations and citations omitted); Hawana, 230 F. Supp.2d at 532-33.
Second, the plaintiff must show a specific basis for imputing the hostile
work environment to the employer. See Fitzgerald, 251 F.3d at 357.
Title VII also prevents employers from retaliating or discriminating
against an employee who has opposed an unlawful employment practice.
42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation,
the plaintiff must, demonstrate that (1) he was engaged in a protected
activity; (2) the defendants were aware of this activity; (3) the
defendants took adverse action against the plaintiff; and (4) that a
causal connection exists between the protected activity and the adverse
action, i.e., that a retaliatory motive played a part in the adverse
employment action. See Fitzgerald, 251 F.3d at 358; Hawana F. Supp.2d at
As explained above, the plaintiff's allegations are plainly
insufficient to establish without material dispute that he was subjected
to sufficiently severe or pervasive harassment or that he was terminated
for retaliatory, and not legitimate, reasons. As with the discrimination
claim, the hostile work environment and retaliation claims revolve around
the relationship between the plaintiff and his supervisor, and they
clearly involve issues of disputed material fact. The defendants contend
that the plaintiff was terminated for poor work performance and that
it was the plaintiff who created a hostile and abusive work Environment
for his supervisor. The defendants have presented ample evidence to
support their allegations, and while the plaintiff has presented some
evidence to the contrary, he has not established that there are no
material facts in dispute or that he is entitled to partial summary
judgment on any issue.
The plaintiff has also argued that he is entitled to partial summary
judgment based on the conduct of the defendants' attorneys. To the extent
that the plaintiff is attempting to reargue issues already decided by
Magistrate Judge Dolinger, or to reassert objections overruled by this
Court, his arguments are without merit. (See Mason Decl. Exs. G, H, I.)
In any event, the plaintiff has failed to establish that the defense
attorneys' conduct was inappropriate or that he is entitled to any
In his most recent letters, dated December 23, 2003 and January 16,
2004, the plaintiff asserts that the defendants failed to comply with
this Court's Order, dated October 24, 2003, which directed the defendants
to file an opposition to the motion for partial summary judgment by
November 7, 2003. The plaintiff seeks sanctions under Rule 11 of the
Federal Rules of
Civil Procedure, and he has filed a motion, dated January 16, 2004,
to that effect.
The defendants' opposition papers were filed with the Court on December
22, 2003, but they include a declaration of service indicating that they
were served on the plaintiff on November 7, 2003. It is clear that the
plaintiff did receive the papers around that date because he filed a reply
with the Pro Se Office on November 13, 2003. Under Rule 5(d) of the
Federal Rules of Civil Procedure, papers must "be filed with the court
within a reasonable time after service." Fed.R.Civ.P. 5(d). The
defendants should have promptly filed their papers after serving them on
the plaintiff. However, the defendants served the opposition papers in a
timely fashion and the plaintiff has not been prejudiced by the failure
to file the papers promptly.
The Federal Rules of Civil Procedure "shall be construed and
administered to secure the just, speedy, and inexpensive determination of
every action." Fed.R.Civ.P. 1. It is plain that no sanctions are
appropriate simply because the defendants did not file their papers more
promptly. Motions and cases are to be decided on the merits if at all
possible and not on the basis of attempts at exploiting procedural defects
that have no substantive effect. In this case, the Court has considered
the substance of the plaintiff's motion even though he failed to comply
with the requirements of Local Rule 56.1 and the
requirement to seek a pre-motion conference. It is similarly appropriate
for the Court to consider the substance of the defendants' papers
submitted in opposition.
For the reasons explained above, the plaintiff's motion for partial
summary judgment is denied on all issues. The plaintiff's motions for
sanctions are also denied.