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HOWARD v. CITY OF 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. Page 2

I.

  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 employment. Page 3 (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.

  II.

  The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the Page 4 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. Page 5 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 cases).

  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 Page 6 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.

  III.

  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. Page 7 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 Page 8 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 ...


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