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WILLIAMS v. CITY OF NEW YORK

United States District Court, S.D. New York


April 12, 2005.

RICHARD C. WILLIAMS, Plaintiff,
v.
CITY OF NEW YORK, Defendant.

The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge

OPINION AND ORDER

Plaintiff Richard C. Williams brings this pro se Title VII and ADEA action against the City of New York claiming unequal terms and conditions of his employment, termination due to gender, race, and age discrimination, and retaliation. (Dkt. No. 2: Compl. ¶¶ 4, 7.) The parties have consented to disposition of this action by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 18.) Presently before the Court is defendant's summary judgment motion. For the reasons stated below, the motion (Dkt. No. 28) is GRANTED.

FACTS

  Richard Williams was hired by the New York Police Department ("NYPD") in May 2001 as a School Safety Agent Level I. (See Dkt. No. 29: City SJ Br. at 2; Dkt. No. 30: Winefsky Aff. Exs. B, C; Dkt. No. 30: Kam Aff. ¶ 4.) Williams attended the Training Academy until August 2001 when he was assigned to the High School of Graphic Communication Arts in New York City. (Kam Aff. ¶ 4; Winefsky Aff. Exs. B, C.) His immediate supervisor was Rosalyn Burns, a School Safety Agent Level III. (Dkt. No. 30: Burns Aff. ¶¶ 1-2; Kam Aff. ¶ 3.) Burns supervised a total of nine employees including Williams, five females and four males. (Burns Aff. ¶ 2; Kam Aff. ¶ 3.)

  Williams complains that Ms. Burns gave him two poor performance evaluations and that she did not treat similarly situated female employees in the same way. (Winefsky Aff. Ex. G: Williams NYCCHR Compl. ¶ 5.) Williams asserts that Ms. Burns screamed at him in front of students and that she called him "out of . . . name like boy instead of calling [him] by Agent Williams." (Compl. Attached Handwritten pages; Dkt. No. 37: Williams SJ Opp. Ex. D: 11/23/04 Letter from Teacher Patricia Crespino: "I witnessed Sgt. Burns refer to Officer Williams as a `boy' by saying `Boy, where is your radio.'")

  At the training academy, Williams received five demerits resulting in two Command Disciplines for which he as found guilty as charged. (Kam Aff. ¶ 5; Winefsky Aff. Ex. A.) Williams asserts that the demerits were "baseless and ungrounded." (Williams SJ Opp. at 1.) Williams received a "Below Standards" formal written evaluation from Burns for the May-September 2001 period. (Kam Aff. ¶ 6; Winefsky Aff. Ex. B.) Of the nine male and female school safety agents supervised by Burns, only Williams received a "`Below Standards' evaluation." (Kam Aff. ¶¶ 6, 11.) Williams was investigated by the Internal Affairs Bureau for "fraternization with students," although the charges were found to be unsubstantiated. (Williams SJ Opp. Att.: IAB Reports; Winefsky Aff. Exs. C, H.)

  While Burns submitted her evaluation of Williams, she did not make a recommendation as to whether his employment should be terminated or continued. (Burns Aff. ¶ 5.) Stephen Kam recommended Williams' termination, "based on his disciplinary history." (Kam Aff. ¶ 7.) Executive Officer Samuel Willis reviewed and concurred in Kam's recommendation. (Kam Aff. ¶ 8; Winefsky Aff. Ex. C: 10/23/01 Willis Memo.) That was endorsed by Administrative School Safety Manager Gary Armstead. (Kam Aff. ¶ 9; Winefsky Aff. Ex. D.) Williams was terminated effective December 5, 2001. (Kam Aff. ¶ 10; Winefsky Aff. Ex. E: 12/5/01 Termination Letter.) He was still a probationary employee at the time. (Id.)

  On March 26, 2002, Williams filed a complaint with the New York City Commission on Human Rights ("NYCCHR"). (Winefsky Aff. Ex. G; see also id. Ex. H.) Williams' complaint, under the City Human Rights Law and Title VII, asserted only claims for gender/sex discrimination. (Id.) The Commission "determined that there is no probable cause to believe that the respondents engaged in the unlawful discriminatory practices alleged." (Winefsky Aff. Ex. H at 1.) The NYCCHR found:

In order to remain a school safety officer, [Williams] was required to receive a rating of "meets standards" on his performance evaluation form during his one-year probationary period. [Williams] was evaluated by respondent and was found to fall "below standard" in several categories. . . .
[Williams] fails to point to any incidents or fact or otherwise that would tend to support a conclusion that his termination was the result of his gender and not the result of his "below standard" performance. . . . There is no evidence of preferential treatment toward similarly situated female school safety officers or unfair treatment to similarly situated male officers.
(Winefsky Aff. Ex. H: NYCCHR Decision at 2.)

  The EEOC adopted the NYCCHR's findings. (Winefsky Aff. Ex. J: EEOC Dismissal and Notice of Rights.)

  Williams' timely-filed pro se complaint in this Court asserts claims under Title VII and the ADEA based on race, gender/sex and age, and retaliation. (Dkt. No. 2: Compl. page 1 & ¶¶ 4, 7.) At his deposition, Williams explained that as to age, he was older (44) than the other employees, and as a result he had children and needed to work overtime, and other agents (not Burns) made fun of his age. (Winefsky Aff. Ex. I: Williams Dep. at 87-91.) As to his claim of race discrimination, when asked his basis for that claim, he responded: "I don't have any answer." (Williams Dep. at 91.) His basis for his retaliation claim is that when he found a gun on a student, he should have been congratulated but he was not, and instead was fired. (Williams Dep. at 97: "I think they retaliated against me for the findings of the gun, that's what I think.")

  Most telling is Williams' summary judgment opposition filing, where he stated:

Please note that for some reason unknown to me, Sergeant Burns, my immediate supervisor, has taken an irrational dislike to me, and that the problems have stemmed from that.
(Williams SJ Opp. at 2; see also Compl. Att.: Williams handwritten statement that as to Burns, it "seems like we had some kind of communication problem.")

  ANALYSIS

  I. LEGAL PRINCIPLES GOVERNING DISCRIMINATION CASES*fn1 A. Summary Judgment Standards in Employment Discrimination Cases

  Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if 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, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000), cert. denied, 124 S. Ct. 53 (2003); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).

  The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment — here, defendant. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S. Ct. at 2552-53.

  To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986). Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S. Ct. at 1356; see also, e.g., Weinstock v. Columbia Univ., 224 F.3d at 41 (at summary judgment, "[t]he time has come . . . `to put up or shut up'") (citation omitted).

  In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S. Ct. at 2513.*fn2 The Court draws all inferences in favor of the non-moving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S. Ct. 489 (1987). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 37. In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S. Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S. Ct. at 2510 (citation omitted); see also, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12.

  When a case turns on the intent of one party, as employment discrimination claims often do, a "trial court must be cautious about granting summary judgment." Gallo v. Prudential Residential Servs., Ltd. P'Ship, 22 F.3d at 1224.*fn3 Because the employer rarely leaves direct evidence of its discriminatory intent, the Court must carefully comb the available evidence in search of circumstantial proof to undercut the employer's explanations for its actions. E.g., Gallo v. Prudential Residential Srvs., Ltd. P'Ship, 22 F.3d at 1224. "[S]ummary judgment may not be granted simply because the court believes that the plaintiff will be unable to meet his or her burden of persuasion at trial. There must either be a lack of evidence in support of the plaintiff's position or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error." Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998) (citations omitted). Nonetheless, when an employer provides convincing evidence to explain its conduct and the plaintiff's argument consists of purely conclusory allegations of discrimination, the Court may conclude that no material issue of fact exists and it may grant summary judgment to the employer. E.g., Budde v. H&K Distrib. Co., No. 99-9449, 216 F.3d 1071 (table), 2000 WL 900204 at *1 (2d Cir. June 29, 2000); Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995). In other words, to defeat summary judgment, "the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Stern v. Trustees of Columbia Univ., 131 F.3d at 312; see, e.g., Schnabel v. Abramson, 232 F.3d 83, 90-91 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d at 42 (The question on summary judgment is "whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, it is not enough . . . to disbelieve the employer; the factfinder must also believe the plaintiff's explanation of intentional discrimination.") (internal quotations & alterations omitted); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (plaintiff must "produce not simply `some' evidence, but `sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely than not [discrimination] was the real reason for the discharge'").*fn4 Indeed, the Second Circuit "went out of [its] way to remind district courts that the `impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable.'" Weinstock v. Columbia Univ., 224 F.3d at 41.

  B. Legal Principles Governing Title VII Actions

  Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against any individual "with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. §§ 2000e-2(a)(1).

  Under the familiar McDonnell Douglas burden-shifting analysis, the plaintiff has the burden at the outset of "proving by the preponderance of the evidence a prima facie case of discrimination." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093 (1981); see, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 2106 (2000); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973).*fn5 Establishment of a prima facie case "`in effect creates a presumption that the employer unlawfully discriminated against the employee.'" St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 506, 113 S. Ct. at 2747 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 254, 101 S. Ct. at 1094).*fn6

  Once a plaintiff claiming employment discrimination establishes a prima facie case, the burden shifts to the defendant to rebut the presumption of discrimination by articulating a legitimate, non-discriminatory reason for its employment decision. E.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 142-43, 120 S. Ct. at 2106; McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 93 S. Ct. at 1824.*fn7 The burden on the defendant at this phase is one of production rather than persuasion. E.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 142, 120 S. Ct. at 2106.*fn8

  "Although intermediate evidentiary burdens shift back and forth under [the McDonnell Douglas] framework, `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 143, 120 S. Ct. at 2106.

  If the defendant articulates a non-discriminatory reason, the McDonnell Douglas burden-shifting framework drops out of the picture. E.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 142-43, 120 S. Ct. at 2106.*fn9 "Moreover, although the presumption of discrimination `drops out of the picture' once the defendant meets its burden of production, . . . the trier of fact may still consider the evidence establishing the plaintiff's prima facie case `and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 143, 120 S. Ct. at 2106 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 255 n. 10, 101 S. Ct. at 1095 n. 10).

  The Supreme Court in 2000 clarified the standard at this stage of the McDonnell Douglas analysis:

[I]n St. Mary's Honor Center. . . . we held that the factfinder's rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff. The ultimate question is whether the employer intentionally discriminated, and proof that "the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct." In other words, "[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination."
In reaching this conclusion, however, we reasoned that it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation. . . . Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.
This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. To hold otherwise would be effectively to insulate an entire category of employment discrimination cases from review under Rule 50 [or Rule 56], and we have reiterated that trial courts should not "`treat discrimination differently from other ultimate questions of fact.'"
Whether judgment as a matter of law [or summary judgment] is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 146-49, 120 S. Ct. at 2108-09 (emphasis added & citations omitted).

  After Reeves, the Second Circuit has made clear that merely proving a prima facie case and disproving the employer's explanation for its conduct at the third step of the McDonnell Douglas analysis will not preclude summary judgment in all cases; rather, a case-by-case analysis is necessary: In examining the impact of Reeves on our precedents, we conclude that Reeves prevents courts from imposing a per se rule requiring in all instances that a [Title VII] claimant offer more than a prima facie case and evidence of pretext. . . . But the converse is not true; following Reeves, we decline to hold that no [Title VII] defendant may succeed on a summary judgment motion so long as the plaintiff has established a prima facie case and presented evidence of pretext. Rather, we hold that the Supreme Court's decision in Reeves clearly mandates a case-by-case approach, with a court examining the entire record to determine whether the plaintiff could satisfy his "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff."

 Schnabel v. Abramson, 232 F.3d at 90 (emphasis added).*fn10

  Indeed, the Second Circuit and District Court decisions within the Circuit continue to grant summary judgment to defendants in appropriate cases at the final McDonnell Douglas step, even after Reeves.*fn11 II. THE CITY IS GRANTED SUMMARY JUDGMENT ON WILLIAMS' AGE AND RACE DISCRIMINATION CLAIMS BECAUSE WILLIAMS FAILED TO ASSERT SUCH CLAIMS BEFORE THE NYCCHR/EEOC

  Williams' NYCCHR complaint (which also served as his EEOC complaint) alleged gender discrimination, but not race or age discrimination. (See page 3 above.)

  "`Filing a charge with the EEOC is a jurisdictional prerequisite to a private civil action under Title VII.'" Hernandez v. New York City Law Dep't, 94 Civ. 9042, 1997 WL 27047 at *8 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.); accord, e.g., 42 U.S.C. § 2000e-5(e); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S. Ct. 1817, 1822 (1973); Carter v. New York City Dep't of Corr., No. 00-7118, 7 Fed. Appx. 99, 102, 2001 WL 345170 at *2 (2d Cir. Apr. 5, 2001) ("[W]e concur with the District Court's decision to dismiss [plaintiff's] claims. [Plaintiff] failed to exhaust available administrative remedies in regard to racial discrimination claims since he did not raise them in his SDHR charge . . ."); Lama v. Consolidated Edison, No. 99-9381, 242 F.3d 366 (table), 2000 WL 1804510 at *1 (2d Cir. Dec. 7, 2000) ("To the extent [plaintiff] alleged race, national origin, and age discrimination, the claims were not properly before the district court because Lama had not raised them before the EEOC."); Shah v. New York State Dep't of Civil Serv., 168 F.3d 610, 613 (2d Cir. 1999) ("The federal courts generally have no jurisdiction to hear claims not alleged in an employee's EEOC charge."); Butts v. City of New York Dep't of Housing Preservation & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) ("A district court only has jurisdiction to hear Title VII claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is `reasonably related' to that alleged in the EEOC charge.").*fn12 "Judicial relief cannot be sought for claims not listed in the original EEOC charge unless they are `reasonably related' to the charge." Hernandez v. New York City Law Dep't, 1997 WL 27047 at *8 (quoting Chojar v. Levitt, 773 F. Supp. at 650) (quoting Stewart v. United States Immigration & Naturalization Serv., 762 F.2d 193, 197-98 (2d Cir. 1985)); see also, e.g., Butts v. City of New York Dep't of Housing, 990 F.2d at 1401; Adeniji v. Administration for Children Servs., 43 F. Supp. 2d at 427; Rivera v. Baccarat, Inc., 1996 WL 251850 at *2.*fn13 While "a plaintiff's EEOC charge should be construed liberally," especially for a pro se plaintiff, "`there is a difference between liberally reading a claim which "lacks specificity," and inventing, ex nihilo, a claim which simply was not made.'" Rivera v. Baccarat, Inc., 1996 WL 251850 at *2 (quoting Shannon v. Ford Motor Co., 72 F.3d 678, 685 (8th Cir. 1996)); accord, e.g., Adeniji v. Administration for Children Servs., 43 F. Supp. 2d at 427; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *8.

  Williams' NYCCHR complaint could not be clearer: he only alleged gender/sex discrimination. (Dkt. No. 30: Winefsky Aff. Ex. G: Williams NYCCHR Compl. ¶¶ 8-9; see also id. Ex. H: NYCCHR Decision.)*fn14

  The City is granted summary judgment dismissing Williams' age and race discrimination claims.

  III. WILLIAMS HAS NOT PROVED GENDER DISCRIMINATION BY SUPERVISOR BURNS

  Williams' complaint raises a disparate treatment claim, i.e., that he was treated differently by supervisor Burns (including receiving a negative performance review) and terminated because he was a man. (See pages 2-3 above). A disparate treatment claim is one in which the employer "simply treats some people less favorably than others because of their race, color [or] religion," or other protected characteristic. Hazen Paper Co. v. Biggins, 507 U.S. 604, 609, 113 S. Ct. 1701, 1705 (1993); see also, e.g., Viruet v. Citizen Advice Bureau, 01 Civ. 4594, 2002 WL 1880731 at *18 (S.D.N.Y. Aug. 15, 2002) (Peck, M.J.); Williams v. NYC Dep't of Sanitation, 00 Civ. 7371, 2001 WL 1154627 at *15 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.); Adeniji v. Administration for Children Servs., 43 F. Supp. 2d 407, 424 (S.D.N.Y.) (Wood, D.J. & Peck M.J.), aff'd, No. 99-7561, 201 F.3d 430 (table), 1999 WL 1070027 (2d Cir. Nov. 18, 1999).

  In order to establish a prima facie case of disparate treatment discrimination in violation of Title VII (or the NYCHRL), a plaintiff must show that: (1) he is a member of a protected class; (2) he satisfactorily performed the duties of his position; (3) he was subject to an adverse employment action; and (4) the adverse employment action occurred in circumstances giving rise to an inference of discrimination on the basis of his membership in that class. E.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 2106 (2000); Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000).*fn15 "The burden of establishing a prima facie case is not onerous, and has been frequently described as minimal." Scaria v. Rubin, 117 F.3d at 654; accord, e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S. Ct. 2742, 2746-47 (1993); Schnabel v. Abramson, 232 F.3d at 87.*fn16

  While Williams was subject to an adverse employment action because he was terminated (satisfying the third prong), Williams fails to satisfy the fourth prong of this analysis.*fn17

  Williams claims that he was terminated based upon his gender (see generally Compl.), but he provides no evidence of gender discrimination.*fn18 In fact, in his opposition brief he asserts that Burns had an "irrational dislike" of him for "some reason unknown" to Williams. (See page 4 above.)

  The only potentially gender-specific comment that Williams asserts is that Burns referred to him as "boy" (which frankly sounds more like a potentially racial comment than one based on gender), yet such a stray remark (even if that were a gender based remark), unrelated to his evaluation or termination, does not constitute evidence of discrimination. E.g., Wilton v. City & Cty. of San Francisco, No. 94-15116, 60 F.3d 836 (table), 1995 WL 398845 at *3 (9th Cir. July 7, 1995) ("Although [manager's] comments were crass . . ., they were isolated, and are insufficient to establish a hostile work environment. The one racial comment, [manager's] use of the word `brother' at some time over a year before the altercation, is not enough to create sufficient specific evidence to survive summary judgment. Stray remarks are insufficient to establish discrimination."); see, e.g., Taylor v. Potter, 99 Cov. 4941, 2004 WL 1811423 at *15 (S.D.N.Y. Aug. 16, 2004) (Peck, M.J.); Ferrand v. Credit Lyonnais, 02 Civ. 5191, 2003 WL 22251313 at *11 (S.D.N.Y. Sep. 30, 2003) ("Whitehair's stray remarks Ladouceur referred to are insufficient to meet Ferrand's burden of proving that the legitimate reasons provided by Credit Lyonnais for the adverse employment actions Ferrand alleges are pretextual. Ladouceur offers no specific context for the remarks, nor does he indicate that they were said in reference or leading to the alleged adverse employment actions at issue here and Ferrand does not otherwise sufficiently establish that they were."), reconsideration denied, 292 F. Supp. 2d 518 (S.D.N.Y. Nov. 19, 2003), aff'd, No. 03-9172, 110 Fed. Appx. 160, 2004 WL 2029988 (2d Cir. Sep. 10, 2004); Viruet v. Citizen Advice Bureau, 01 Civ. 4594, 2002 WL 1880731 at *15 (S.D.N.Y. Aug. 15, 2002) (Peck, M.J.) ("Isolated incidents of discriminatory comments or conduct [are] not sufficient to establish a hostile work environment.") (citing cases); Magnan v. Manhattan Eye, Ear & Throat Hosp., 01 Civ. 6306, 2002 WL 334505 at *5 (S.D.N.Y. Feb. 28, 2002) ("Furlong's remarks in a single conversation that plaintiff did not receive severance because she was a `girl' and that MEETH was run by an `old boy network' represent stray remarks by a non-decision maker, and, as such, do not constitute sufficient evidence of discrimination.") (internal citation omitted); Harris v. McGraw-Hill Cos., 98 Civ. 2083, 2001 WL 1568296 at *5 (S.D.N.Y. Dec. 7, 2001) ("The Court finds that Chastain's isolated comment does not constitute discrimination and is not the type of conduct that Title VII was meant to prevent. The fact that Plaintiff was personally offended by the remark does not convert such conduct into discrimination."); Adeniji v. Administration for Children Servs., 43 F. Supp. 2d 407, 413 (S.D.N.Y. 1999) (Wood, D.J. & Peck, M.J.) ("As Magistrate Judge Peck correctly points out, it is well-settled that one racial remark, or even sporadic remarks, are not sufficient to establish a hostile work environment."), aff'd, No. 99-7561, 201 F.3d 430 (table), 1999 WL 1070027 (2d Cir. Nov. 18, 1999).

  Moreover, to establish a disparate treatment claim, the employees that Williams compares himself to "must have a situation sufficiently similar to plaintiff's to support at least a minimal inference that the difference of treatment may be attributable to discrimination." McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001); see, e.g., Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000) ("to satisfy [the] `all material respects' standard for being similarly situated, a plaintiff must show that her co-employees were subject to the same performance evaluation and discipline standard. . . . In addition, the standard . . . requires plaintiff to show that similarly situated employees who went undisciplined engaged in comparable conduct." Factors include "whether the conduct for which the employer imposed discipline was of comparable seriousness. . . . [T]here should be an `objectively identifiable basis for comparability.'"); Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997) ("To be `similarly situated,' the individuals with whom [plaintiff] attempts to compare herself must be similarly situated in all material respects."); Viruet v. Citizen Advice Bureau, 2002 WL 1880731 at *19.

  While Williams notes that the two female probationary school safety agents at Graphic Arts High School were not terminated (Winefsky Aff. Ex. I: Williams Dep. at 47, 48), he fails to show that they were similarly situated. Williams was the only probationary school safety agent at his school that had a disciplinary record from the Academy and a negative performance review. (See page 2 above.) See, e.g., Jones v. Yonkers Pub. Sch., 326 F. Supp. 2d 536, 545 (S.D.N.Y. 2004) ("[P]laintiff's allegations of disparate treatment with respect to employees having visitors during work hours ring hollow because plaintiff, as a probationary employee, was not situated similarly to Hillman and Synan, who were non-probationary."). As the City Commission on Human Rights noted, "[t]here is no evidence of preferential treatment toward similarly situated female school safety officers or unfair treatment to similarly situated male officers." (Winefsky Aff. Ex. H: NYCCHR Decision at 2.) Williams has not presented any evidence of gender discrimination, as opposed to the fact that his supervisor Burns had an "irrational dislike" of him for "some reason unknown." (Dkt. No. 37: Williams SJ Opp. at 2.) A supervisor's "dislike" of an employee, however, does not violate Title VII. See, e.g., Henkin v. Forest Labs, Inc., 01 Civ. 4255, 2003 WL 749236 at *8 (S.D.N.Y. Mar. 5, 2003) ("The evidence is clear that plaintiff's supervisors may have been hostile towards her, but there is no evidence that this hostility was because of her protected class. Plaintiff does not show that hostility to her arose out of any animus towards plaintiff based on her religion, national origin, or age. Title VII and the ADEA are not general civility codes."), aff'd, No. 03-7512, 88 Fed. Appx. 478, 2004 WL 436006 (2d Cir. Mar. 9, 2004); Figueroa v. City of New York, 00 Civ. 7559, 2002 WL 31163880 at *3 (S.D.N.Y. Sep. 27, 2002) ("Courts have repeatedly granted summary judgment where the evidence points, not to gender or racial animus, but rather to the fact that plaintiff's personality is the motivation for the harassment.") (citing cases), aff'd, No. 02-9336, 118 Fed. Appx. 524, 2004 WL 2823327 (2d Cir. Dec. 9, 2004).

  Williams has failed to establish a prima facie case of disparate treatment gender discrimination. The City is granted summary judgment dismissing Williams' gender discrimination claim.

  IV. WILLIAMS FAILS TO ESTABLISH A RETALIATION CLAIM

  Williams asserted a claim of retaliation in his complaint in this action by putting a checkmark next to the word retaliation in the paragraph listing discriminatory conduct. (Dkt. No. 2: Compl. ¶ 4.) However, Williams does not assert a retaliation claim in any detail elsewhere in his motion papers, and when he was asked at his deposition about his retaliation claim, he stated, "I think they brought that — instead of, you know, giving me a plaque or congratulated me [for finding a gun on a student], they turn around and got rid of me. . . . I think they retaliated against me for the findings of the gun, that's what I think." (Dkt. No. 30: Winefsky Aff. Ex. I: Williams Dep. at 96-97.)

  Williams' opposition to defendant's summary judgement motion does not address the retaliation claim or defendant's motion as to that claim. (See generally Dkt. No. 37: Williams SJ Opp.) On this basis alone, the Court could consider the retaliation claim abandoned. See, e.g., Diaz v. Weill Med. Ctr. of Cornell Univ., 02 Civ. 7380, 2004 WL 285947 at *20 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.) ("Plaintiff's brief opposing [defendant's] summary judgment motion does not address the retaliation claim or [defendant's] summary judgment motion as to that claim. On this basis alone, the Court could consider the retaliation claim abandoned.") (record citation omitted); Taylor v. City of New York, 269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003) ("Federal courts may deem a claim abandoned when a party moves for summary judgment on one ground and the party opposing summary judgment fails to address the argument in any way."); Arias v. NASDAQ/AMEX Mkt. Group, 00 Civ. 9827, 2003 WL 354978 at *13 (S.D.N.Y. Feb. 18, 2003) (Where plaintiff's summary judgment opposition "neither refute[d] nor even mention[ed]" defendant's argument for summary judgment on two of his claims, those claims dismissed as "abandoned."); Bronx Chrysler Plymouth, Inc. v. Chrysler Corp., 212 F. Supp. 2d 233, 249 (S.D.N.Y. 2002) (Where plaintiff's summary judgment opposition papers "ma[d]e no argument in support of [one] claim at all," the court dismissed the claim as "abandoned."); Douglas v. Victor Capital Group, 21 F. Supp. 2d 379, 393 (S.D.N.Y. 1998) (Stein, D.J. & Peck, M.J.) (Where plaintiff's opposition papers "never even mention? any retaliation . . . claim in his brief or affidavits . . . the Court deems all of the remaining claims in the complaint to be abandoned, and recommends that defendants be granted summary judgment dismissing these claims.") (citing cases). In any event, Williams' claim is without merit.

  Title VII retaliation claims also are governed by the McDonnell Douglas burden-shifting analysis. See, e.g., Terry v. Ashcroft, 336 F.3d at 141; Holtz v. Rockefeller & Co., 258 F.3d 62, 79-81 (2d Cir. 2001); Slattery v. Swiss Reins. America Corp., 248 F.3d 87, 94 (2d Cir.), cert. denied, 122 S. Ct. 348 (2001); Raniola v. Bratton, 243 F.3d 610, 624-25 (2d Cir. 2001); Sotolongo v. New York City Transit Auth., No. 99-9195, 216 F.3d 1073 (table), 2000 WL 777958 at *2-3 (2d Cir. June 15, 2000); Diaz v. Weill Med. Ctr. of Cornell Univ., 2004 WL 285947 a *21.*fn19

  Under Title VII, it is unlawful for an employer to "retaliate" by discriminating against an employee because the employee engaged in protected activity, that is, "has opposed any practice made an unlawful employment practice by this subchapter, or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a).*fn20

  Williams' retaliation claim is not based on his protected conduct, such as the filing of his NYCCHR charge. Since Williams was terminated before he filed his NYCCHR complaint, his termination could not be in retaliation for his subsequent NYCCHR complaint. See, e.g., Diaz v. Weill Med. Ctr. of Cornell Univ., 2004 WL 285947 at *21.*fn21 CONCLUSION

  For the reasons stated above, defendant's summary judgment motion (Dkt. No. 28) is granted and Williams' claims are dismissed. The Clerk of Court is to enter judgment for defendant New York City dismissing Williams' complaint.

  SO ORDERED.


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