United States District Court, S.D. New York
September 16, 2005.
AUSTIN DURING, Plaintiff,
CITY UNIVERSITY OF NEW YORK AND CITY COLLEGE, Defendants.
The opinion of the court was delivered by: BARBARA JONES, District Judge
Opinion and Order
Austin During ("Plaintiff") brought this employment
discrimination action in October 2001 against defendants City
University of New York and City College ("CUNY"). Plaintiff's
original complaint alleged employment discrimination and unlawful
employment practices under Title VII of the Civil Rights Act of
1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e et
seq.,*fn1 the New York State Human Rights Law, N.Y. Exec.
Law 290 et seq., the Administrative Code of the City of New York,
§§ 8-101 et seq., and the Civil Rights Act of 1866, as amended,
42 U.S.C. § 1981. In an order dated May 31, 2002, I granted
CUNY's motion to dismiss Plaintiff's state, city and Section 1981 claims. See During v. City University of New York and City
College, Mo. 01 Civ. 8584 (BSJ), 2002 WL 1159675 (S.D.N.Y. May
31, 2002). The parties have since completed discovery, and CUNY
has moved for summary judgment on Plaintiff's remaining three
Title VII claims for discrimination, retaliation, and hostile
work environment. Plaintiff's current allegations span almost
twenty years, from 1984 through 2002.
II. Procedural History
The facts giving rise to this action are set forth in my May
31, 2002 opinion, familiarity with which is assumed. For present
purposes it is sufficient to note that Plaintiff is from Sierra
Leone and is of African descent. He began working at CUNY in 1982
in the custodial workforce. He claims that since 1984, CUNY has
discriminated against him based on his race and national origin.
Plaintiff filed an administrative complaint in 1987 with the
New York State Division of Human Rights ("DHR"), alleging that
his superiors at CUNY had discriminated against him by harassing
him and transferring him from Steinman Hall to Baskerville Hall.
The 1987 complaint also alleged that Samuel Lessner, his superior
at CUNY, informed Plaintiff that he did not like Plaintiff and
did not want Plaintiff to have the position of supervisor.
Plaintiff argued that because he performed his duties in a
satisfactory manner and was the only Sierra Leonian working for Mr. Lessner, this disparate treatment
constituted discrimination based on his national origin.
In 1988, Plaintiff filed an amended verified complaint, again
alleging that CUNY subjected him to discriminatory treatment by
harassing, discrediting and refusing to promote him. Plaintiff
alleged that his Mr. Lessner told him that he did not like his
"foreign a ." Despite the fact that his 1987 administrative
charge complained of his transfer from Steinman Hall to
Baskerville Hall, in 1988 Plaintiff complained about his
reassignment to Steinman Hall. Plaintiff asserted that this
assignment was discriminatory because Steinman Hall was later
closed due to asbestos contamination. Plaintiff claimed that in
1984, he was given a promotion that was to include a $1000 raise
upon the completion of a probationary period, but unlike other
CUNY employees, all of whom are "American blacks," he was never
given the raise as promised. Plaintiff alleged that he was not
promoted to various positions for which he was qualified,
including Assistant Custodial Supervisor, Senior Supervisor, and
"clerical positions" in the Custodial Department, and that all of
these positions were instead filled with "American blacks."
In 1989, Plaintiff filed a second administrative complaint with
the DHR. In his 1989 complaint, Plaintiff alleged that in
retaliation for his 1987 complaint, his superiors at CUNY had
harassed him, transferred him and denied him promotions. He alleged that James Watson, a Principal Custodian at CUNY,
threatened him with physical harm if he did not withdraw his 1987
complaint. He also claimed that John Williams, another Principal
Custodian, threatened that he would not be promoted unless he
withdrew his complaint.
Ten years later, in October 1999, Plaintiff filed a third
administrative charge with the DHR, in which he claimed that in
retaliation for his administrative complaints in the 1980s, CUNY
denied him the position of Chief Administrative Superintendent in
1996 and Administrative Superintendent in 1999.
In January 2000, Plaintiff filed a fourth charge with the DHR.
Plaintiff again claimed that CUNY had retaliated against him,
this time by withholding work assignments and bypassing him in
the chain of command.
In 2001, the EEOC issued Plaintiff a right to sue letter based
on his 1999 and 2000 administrative charges. Plaintiff filed this
action in October 2001. On May 29, 2002, the Court dismissed
Plaintiff's § 1981 claims and state law claims. In January 2003,
the EEOC issued Plaintiff another right to sue letter based on
his 1987 and 1989 administrative charges. In May 2003, Plaintiff
amended his complaint to include allegations regarding those
earlier administrative charges. Discovery concluded in December
2003, and this motion for summary judgment followed. Before reviewing the standard for this motion for summary
judgment, the Court must note the difficulty it faced in deciding
this motion due to the lack of clarity in Plaintiff's opposition
papers. Only a handful of the allegations made in those papers
are supported by citations to depositions or sworn affidavits,
and what few citations Plaintiff does provide are to voluminous
exhibits without reference to specific page numbers. Plaintiff's
papers thus made the task of deciding this motion significantly
more difficult than necessary.
III. Standard for Summary Judgment
Federal Rule of Civil Procedure 56 provides that summary
judgment should "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 judgment as a matter of law." Fed.R.Civ.P.
56(c). To prevail, the party moving for summary judgment must
"demonstrate the absence of a genuine issue of material fact."
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548
(1986). If the moving party does so successfully, the non-moving
party must present "specific facts showing that there is a
genuine issue for trial." Fed.R.Civ.P. 56(c). The court must
draw all reasonable inferences and resolve all ambiguities in favor of the non-movant. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348 (1986).
However, the non-movant cannot rely on "conclusory statements or
on contentions that the affidavits supporting the motion are not
credible." Ying Jang Gan v. City of New York, 996 F.2d 522, 535
(2d Cir. 1993).
The Second Circuit has warned that district courts should be
"particularly cautious about granting summary judgment to an
employer in a discrimination case when the employer's intent is
in question. Because direct evidence of an employer's
discriminatory intent will rarely be found, `affidavits and
depositions must be carefully scrutinized for circumstantial
proof which, if believed, would show discrimination.'" Schwapp
v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (quoting
Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d
Cir. 1994)). That said, a court can grant a defendant's motion
for summary judgment in an employment discrimination case where
the plaintiff relies "on conclusory allegations of discrimination
and the employer provides a legitimate rationale for its
conduct." Tojzan v. New York Presbyterian Hosp., No. 00 Civ.
6105 (WHP), 2003 WL 1738993, at *4 (S.D.N.Y. March 31, 2003). IV. Plaintiff's Discrimination Claims
Discrimination suits brought under Title VII follow the
familiar burden-shifting regime established by McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). First, the
plaintiff must make out a prima facie case of discrimination by
showing that (1) he belongs to a protected class; (2) he suffered
an adverse employment action; and (3) the circumstances
surrounding the adverse employment action give rise to an
inference of discrimination. Brown v. Coach Stores, Inc.,
163 F.3d 706, 709 (2d Cir. 1998) (citing McDonnell Douglas Corp.).
The burden then shifts to the employer to show a legitimate,
nondiscriminatory reason for the adverse employment action. If
the employer does so, the final burden remains with the plaintiff
to show that the nondiscriminatory reason asserted by the
employer was pretextual and that the employer discriminated
against him. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143-44, 120 S.Ct. 2097 (2000).
Plaintiff relies on a number of incidents that occurred over an
eighteen-year period to support his race and national origin
discrimination claim. First, Plaintiff makes a handful of failure
to promote claims; he alleges that CUNY failed to promote him to
various positions in 1987, 1996, 1998, 2000 and 2002. Plaintiff
also makes a variety of other allegations, including that
Plaintiff's superiors insulted him, transferred him to different work locations, transferred him to a work site
with asbestos contamination, placed negative employment reviews
in his file, gave him inferior supplies, and physically assaulted
All of Plaintiff's allegations suffer from similar defects. His
failure to promote allegations fail because he either did not
apply for the positions at issue, failed to satisfy the Title VII
exhaustion requirements, or failed to rebut CUNY's evidence of
legitimate, non-discriminatory reasons for not promoting him. The
remainder of his allegations are conclusory, supported only by
Plaintiff's declaration, which is filled with speculation not
based on his personal knowledge. Furthermore, Plaintiff fails to
provide any evidence linking the alleged adverse employment
actions to race or national origin discrimination. Taken as a
whole, the sparse evidence Plaintiff presents would not permit a
rational juror to find race or national origin discrimination.
Accordingly, his discrimination claims are dismissed.
The Failure to Promote Claim
To make out a prime facie case for failure to promote under
Title VII, the plaintiff must allege four elements: (1) that he
is a member of a protected class; (2) that his job performance
was satisfactory; (3) that he applied for and was denied a
promotion to a position for which he was qualified; and (4) that the position remained open and the employer continued to seek
applicants for it. Cruz v. Coach Stores, Inc., 202 F.3d 560,
565 (2d Cir. 2000). Plaintiff's failure to promote claims center
on positions that were vacant in 1987, 1996, 1998, 2000 and 2002.
For the 1987, 1998 and 2002 positions, Plaintiff fails to make
out a prima facie case because he did not apply for those
positions. Additionally, he did not administratively exhaust any
claims arising out of CUNY's failure to promote him in 1996.
Finally, as to the 2000 job opening, although Plaintiff makes out
a prima facie case, he fails to rebut CUNY's legitimate,
nondiscriminatory reasons for not selecting him for that
Before addressing each incident of non-selection, a note about
Plaintiff's allegations is required. Plaintiff's second amended
complaint alleges race and national origin discrimination. In
opposing CUNY's motion for summary judgment, however, Plaintiff's
failure to promote arguments center only on national origin
discrimination. Given the facts as alleged by Plaintiff, this
change is not surprising. Plaintiff concedes that in three of the
four incidents of his non-selection, CUNY promoted African
American employees over him. (P. Dep. at 208.) Plaintiff thus
fails to make out a prima facie case of race discrimination based
on those incidents. See, e.g., Smith v. Planas,
975 F. Supp. 303, 308 (S.D.N.Y. 1997) (holding that the plaintiff failed to make out a prima facie case of race
discrimination where "[f]ive of the seven individuals identified
by Plaintiff as having received higher-paying assignments were
black members of Plaintiff's protected class"). Based on
Plaintiff's current submissions, the Court reads his failure to
promote allegations as based solely on national origin
Plaintiff's first failure to promote claim is that CUNY refused
to promote him to the position of custodial supervisor in 1987.
Plaintiff alleges that in 1987 CUNY provisionally appointed four
non-foreign born employees to the positions of assistant
principal custodial supervisor and principal custodial
supervisor. Plaintiff asserts that he had passed the civil
service examination, thus qualifying him for those positions. (P.
Dec. at ¶ 29.) He further asserts, "upon information and belief,"
that the individuals promoted over him, Earl Milton, Herbert
Ryan, James Watson and John Williams, "either had not taken the
civil service examination or failed to pass it." (P. Dec. at ¶¶
As an initial matter, "[i]t is far too late in this case for
[P]laintiff to make such allegations `upon information and
belief,' which is just another way of saying, `I don't have any
facts, but I would like it to be true.'" Akpan v. New York State
Div. for Youth, 97 Civ. 9379 (WHP), 1999 U.S. Dist. LEXIS 15366, at 13 (S.D.N.Y. Sept. 30, 1999). Discovery in this
litigation lasted nearly eighteen months, giving Plaintiff ample
opportunity to determine whether the individuals promoted over
him had passed the civil service examination. There is simply no
excuse for Plaintiff to continue to rely on bald, unsubstantiated
allegations "that merely echo, albeit with slight amplification,
the allegations in his complaint." Id. at *12.
Even if Plaintiff offered any evidence in support of this set
of allegations, he fails to make out a prima facie failure to
promote claim because he does not show that he ever applied for
the custodial supervisor positions. At his deposition, Plaintiff
admitted that aside from taking the civil service examination
during the 1980s, he never completed applications for the
positions about which he complains. (P. Dep. at 51.) Because
applying for a position is an element of a prima facie
discrimination claim based on failure to promote, this set of
allegations fails to state a claim. See, e.g., Brown v. Coach
Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998) (reading
McDonnell Douglas "to require a plaintiff to allege that she or
he applied for a specific position or positions and was rejected
therefrom, rather than merely asserting that on several occasions
she or he generally requested promotion"). Moreover, even if Plaintiff could show that he applied for
these positions, these allegations would nonetheless fail because
the circumstances of his non-selection do not give rise to an
inference of discrimination. At his deposition, Plaintiff
conceded that he did not know who, other than "Human Resources,"
selected the provisional custodial supervisors. (P. Dep. at 48.)
In his opposition papers, Plaintiff states that "at least" four
individuals were selected for civil service positions over him in
1987. (P. Mem. at 15.) But at his deposition, Plaintiff testified
that "perhaps two" were selected over him. (P. Dep. at 48.) He
identified those individuals as Messrs. Milton and Martin.
Plaintiff testified that both Milton and Martin are black, but
that he did not know their national origins. (P. Dep. at 48.)
When asked why he was not selected to fill the senior custodial
supervisor position, Plaintiff admitted that he did not know. (P.
Dep. 49.) "[A] jury cannot infer discrimination from thin air."
Norton v. Sam's Club, 145 F.3d 114, 119 (2d Cir. 1998). But
thin air is all Plaintiff has produced to show that his
non-selection for these positions was motivated by discriminatory
Plaintiff's second failure to promote claim centers on CUNY's
failure to promote him to the position of Chief Administrative
Superintendent in 1996. Plaintiff claims that he applied for this
position but was rejected based on the false pretext that he was not qualified for the position. (P. Mem. at
16.) Plaintiff further alleges that he was not interviewed for
this position. (P. Mem. at 16.) CUNY argues that dismissal is
warranted because Plaintiff has failed to fulfill Title VII's
exhaustion requirements for claims based on his non-selection for
the 1996 position. The Court agrees.
A plaintiff bringing a claim of employment discrimination under
Title VII in New York must file a charge of discrimination with
the EEOC within 300 days of receiving notice of the allegedly
discriminatory action. 42 U.S.C. § 2000e-5(e). Failure to file a
charge with the EEOC within that 300-day period renders a
plaintiff's claims time-barred.
In 1996, CUNY selected Kenneth Borden for the position of Chief
Administrative Superintendent. Plaintiff did not file an EEOC
charge regarding this incident until October 1999, more than 300
days later. Based on these facts, Plaintiff clearly failed to
satisfy Title VII's exhaustion requirements.
Nonetheless, in a footnote, Plaintiff argues that his
discrimination claim based on this incident is not time-barred
based on Butts v. City of New York Dept. of Housing Preservation
and Development, 990 F.2d 1397, 1401 (2d Cir. 1993). In Butts,
the Second Circuit outlined three situations where subsequent
claims of discrimination may be considered "reasonably related"
enough to a plaintiff's earlier EEOC charge to have satisfied the Title VII exhaustion requirement. Those three situations are
"where the [new] conduct complained of would fall within the
scope of the EEOC investigation which can reasonably be expected
to grow out of the charge of discrimination"; where the claim "is
one alleging retaliation by an employer against an employee for
filing an EEOC charge"; and where the plaintiff "alleges further
incidents of discrimination carried out in precisely the same
manner as alleged in the EEOC charge." Butts,
990 F.2d at 1402-03. Plaintiff argues that his 1996 non-selection falls into
all three of these categories, and is therefore "reasonably
related" to the EEOC charges he filed in 1987 and 1989.*fn2
The Court disagrees.
First, the EEOC investigation that could reasonably have been
expected from the earlier administrative complaints was of
Plaintiff's non-selection for the position of custodial
supervisor in 1989. The scope of that investigation would not be
expected to include Plaintiff's non-selection for a different
position over seven years later. To find otherwise would go far
beyond the "allowance of loose pleading" as contemplated by
Butts; it would permit Plaintiff to file a single
administrative charge to satisfy the exhaustion requirements for
all later allegedly discriminatory incidents, no matter how attenuated the
connection between those incidents and the original
administrative complaint. Butts, 990 F.2d at 1397.
Second, Plaintiff fails to show that his 1996 non-selection was
in retaliation for his 1987 and 1989 administrative complaints.
Butts "relaxed the exhaustion requirement [for retaliation
claims] based on the close connection of the retaliatory act to
both the initial discriminatory conduct and the filing of the
charge itself." Butts, 990 F.2d at 1402. However, that "close
connection" does not exist here. The allegedly retaliatory act
Plaintiff's non-selection for Chief Administrative Superintendent
occurred over seven years after Plaintiff filed his 1989
administrative complaint. Mr. Dickmeyer, the individual who
selected the Chief Administrative Superintendent in 1996, did not
begin working at CUNY until 1994, five years after Plaintiff
filed his 1989 administrative complaint. Mr. Dickmeyer's sworn
declaration states that he was unaware of Plaintiff's complaints
from the 1980s when he made his hiring decision. (Dickmeyer Dec.
at ¶ 12.) Although Plaintiff's Rule 56.1 statement asserts
otherwise, he presents no admissible evidence in support of that
assertion. Accordingly, Plaintiff fails to show that his 1996
non-selection was in retaliation for those earlier complaints. Third, Plaintiff presents no evidence that his 1996
non-selection was an act of discrimination "carried out in
precisely the same manner" as his non-selections in 1987.
Butts, 990 F.2d at 1403. He failed to apply for the custodial
supervisor position in 1987. In 1996 he did apply for the Chief
Administrative Superintendent position, but was not chosen. There
is a gap of almost ten years between these incidents. Different
CUNY employees made the hiring decisions. Based on these facts,
the Court cannot find that these two incidents stem from the
"same method" of discrimination. Plaintiff has thus failed to
satisfy Title VII's exhaustion requirements for his claims based
on his 1996 non-selection for the Chief Administrative
Plaintiff's third failure to promote allegation is that CUNY
failed to promote him to the position of Acting Administrative
Superintendent in 1998 and 2000.*fn3 Kenneth Borden filled that position in 1998. In 2000, Borden was given the
position of Administrative Superintendent, and Gerald Miller
replaced him in the Acting Administrative Superintendent
position. After Borden died in 2002, Miller was given the
position of Administrative Superintendent. (Plaintiff's
allegations regarding the 2000 and 2002 vacancies for the
Administrative Superintendent position are addressed below.)
Plaintiff presents no evidence that he applied for the Acting
Administrative Superintendent position in either 1998 or 2000. In
the Second Amended Complaint, Plaintiff does allege that he
"sought a promotion" to the position of Acting Administrative
Superintendent, but in the same paragraph claims that CUNY denied
him "the opportunity to apply" for that position by "wrongfully
failing to post vacancy announcements" for the position and by
selecting "less qualified employees." (Second Am. Compl. at ¶
27.) At summary judgment, Plaintiff argues that Kenneth Borden
and Gerald Miller were both "preselected" for the Acting
Administrative Superintendent position in 1998 and 2000,
respectively, and that the subsequent selection process for these
positions was merely a sham. (P. Mem. at 16.) These "pre-selection" allegations do not excuse Plaintiff's
failure to apply for, or express interest in, the Acting
Administrative Superintendent position in 1998 and 2000. First,
even if Plaintiff's allegations are true, and the Acting
Administrative Superintendent vacancy was not posted, Plaintiff
makes no allegation that he was not aware of the position, posted
or not, when it became available. See, e.g., Brown,
163 F.3d at 710. Furthermore, his allegations of Borden and Miller's
"preselection" are nothing more than pure speculation. The only
support for these allegations is Plaintiff's reporting of the
hearsay statement of Raymond Carozza, CUNY's Director of Human
Resources, that the college wanted Borden for the position. (P.
Dec. ¶ 48.) This inadmissible double hearsay is insufficient to
meet Plaintiff's burden under Rule 56(e) that he present
affidavits "made on personal knowledge" to support his
allegations. Fed.R.Civ.P. 56(e). Finally, even if the Court
were to credit Plaintiff's allegation that Borden was
pre-selected, that fact does not give rise to an inference of
discrimination without some evidence that that pre-selection was
Plaintiff also claims that CUNY's failure to promote him to
Administrative Superintendent in 2000 and 2002 would permit an
inference of national origin discrimination. Kenneth Borden
filled this position in 2000; Gerald Miller filled it in 2002. Unlike Plaintiff's other failure to promote claims, Plaintiff
presents evidence that he applied for the Administrative
Superintendent position in 2000, and therefore he does state a
prima facie case for failure to promote. The burden then shifts
to CUNY to proffer legitimate, non-discriminatory reasons for
choosing Borden over Plaintiff. In doing so, CUNY need not prove,
or even assert, that Borden had greater objective qualifications
than plaintiff; it only needs to show that the reasons for the
decision were not discriminatory. Davis v. State University of
New York, 802 F.2d 638, 641 (2d Cir. 1986). CUNY satisfies this
burden with an abundance of evidence.
CUNY issued a vacancy announcement for the position of
Administrative Superintendent on January 11, 2000, a copy of
which has been offered as evidence. (Janis Dec. at Ex. A.) A
five-member search committee interviewed all of the applicants,
including Plaintiff, using the same seven questions, and then
scored each applicant based on his or her responses to those
questions. (Janis Dec. at ¶ 10.) The maximum score an applicant
could receive was 35. Borden received a score of 30; Plaintiff
received a score of 25. (Janis Dec. at ¶ 11.) In support of its
motion, CUNY has provided copies of the committee's scoring
sheets that reflect those scores. (See Janis Dec. Ex. C.) The three applicants with the highest scores, Plaintiff, Linden
Morris and Kenneth Borden, were then interviewed by Kevin Farley,
CUNY's Director of Physical Plant Services.*fn4 (Janis Dec.
at ¶ 16.) At those interviews, Mr. Farley asked each of the three
candidates the same six questions, and then rated each answer on
a scale of one to five, for a total possible score of 30. (Janis
Dec. at ¶ 17.) Mr. Farley's scoring sheets from those interviews
show Plaintiff's score of 21, Linden Morris' score of 15, and
Kenneth Borden's score of 28. Kenneth Borden was given the
position. (Janis Dec. at ¶ 18.) Plaintiff concedes that no
statements were ever made about his race or national origin at
either his initial interview with the search committee or his
second interview with Mr. Farley. (P. 56.1 Stmt. ¶¶ 61, 74.)
Based on this evidence, CUNY has made a showing that it selected
Borden over Plaintiff for legitimate, non-discriminatory reasons.
In response to these legitimate, nondiscriminatory reasons,
Plaintiff again argues that Borden was "pre-selected" for the
position and therefore the circumstances of his non-selection for
the position raise an inference of discrimination. (P. Mem. at
16.) For the same reasons stated above, these conclusory,
speculative allegations do not satisfy Plaintiff's burden under
either Rule 56(e) or McDonnell Douglas. The mere fact that Plaintiff falls within a protected group and an individual
outside that group was chosen over him does not raise an
inference of discrimination. See, e.g., Siano v. Haber,
40 F.Supp.2d 516, 524-25 (S.D.N.Y. 1999). Accordingly, Plaintiff
fails to rebut the non-discriminatory reasons CUNY sets forth for
not promoting him to Administrative Superintendent in 2000.
Finally, Plaintiff does not make out a prima facie claim based
on the 2002 Administrative Superintendent vacancy because he
admits that he never applied for that position. (P. 56.1 Stmt ¶
81.) His contentions regarding Gerald Miller's "pre-selection"
for the position fail for the same reasons stated above: they are
wholly speculative, and even if credited, fail to raise an
inference of national origin discrimination.
Other Evidence of Alleged Discrimination
Plaintiff claims that since 1984, various individuals at CUNY
subjected him to insults and derogatory statements based on his
national origin. Plaintiff claims that four of his supervisors,
Messrs. Lessner, Watson, Wooten and Milton, referred to him as a
"monkey chaser" and a "cane cutter," said they did not like his
"foreign a ," and asked "who are these foreigners throwing their
weight around." (P. Dep. at 127.) However, Plaintiff fails to
provide any specifics regarding these alleged incidents.
Plaintiff did not recall the dates when any of these comments
were made. (P. Dep. at 127.) Plaintiff did not recall any discriminatory statements made by
Mr. Milton. (P. Dep. at 128.) Likewise, Plaintiff did not recall
any discriminatory comments made by Mr. Watson. (P. Dep. at 128.)
Plaintiff testified that Mr. Wooten made comments about his being
"foreign born" and "taking jobs, among other things," but
Plaintiff could recall neither when Wooten made those statements
nor whether anyone else was present when he made them. (P. Dep.
at 128.) Mr. Wooten died in 1989. (Janis Rep. Dec. at Ex. A.)
Plaintiff testified that he did not recall whether Mr. Lessner
made any "racist comments, other than the ones . . . discussed
previously during [the] deposition." (P. Dep. at 129.) Lessner
died in 1990. (Brown Dec. Ex. B.)
These "purely conclusory allegations of discrimination, absent
any concrete particulars," are insufficient to defeat CUNY's
motion for summary judgment. Meiri v. Dacon, 759 F.2d 989, 999
(2d Cir. 1985). Plaintiff neither alleges nor shows that either
Wooten or Lessner was involved in any adverse employment action
that took place in the 1980s. (In 1990, both Wooten and Lessner
had died.) Therefore their statements, even if made, do not raise
an inference of discrimination. Boyle v. McCann-Erickson,
949 F.Supp. 1095, 1102 (S.D.N.Y. 1997).
Plaintiff also claims that his superiors threatened not to
promote him if he did not withdraw his 1987 administrative
charge. Plaintiff alleges that John Williams, one of his former supervisors, threatened to deny him "any promotions" if he did
not withdraw his complaint, and that James Watson, another CUNY
supervisor, "threatened him with physical harm" if he did not
withdraw his complaint. (P. Dec. ¶ 8.) At his deposition,
Plaintiff testified that Mr. Watson, an African-American, ordered
him to "write statements" and "sign statements" to the effect
that he would be "withdrawing complaints filed against the
college." (P. Dep. at 62.)
As a preliminary matter, Plaintiff mis-identifies these alleged
incidents as evidence of discrimination; they would more properly
serve as evidence of retaliation. The Second Circuit has written
that "[i]t is conceivable that a demand to withdraw an EEOC
charge could constitute retaliation," but only "if it truly had
so great an effect on the plaintiff as to alter the conditions of
her employment in a material way." Torres v. Pisano,
116 F.3d 625, 640 (2d Cir. 1997). The Circuit explained that "repeated and
forceful demands accompanied even by veiled suggestions that
failure to comply would lead to termination, discipline,
unpleasant assignments or the like, might in some circumstances
affect an employee's working conditions." Id.
As described by Plaintiff, Mr. Watson's threat was "forceful,"
and Mr. Williams' threat did suggest that failure to comply would
lead to non-promotion. Nonetheless, these allegations are
insufficient to make out a retaliation claim. Plaintiff does not allege that he had "repeated" confrontations
with either Mr. Watson or Mr. Williams. As to the incident with
Mr. Watson, Plaintiff admitted that he did not look at the
alleged statements, nor did he sign them. (P. Dep. at 62.) He did
not recall whether anyone else was present when this incident
allegedly occurred. (Id.) Plaintiff did not know when this
incident occurred; he fails to identify even the decade in which
it took place. (Id. at 63.) Plaintiff's allegation regarding
the incident with Mr. Williams was even more vague; it consists
of a single sentence in his declaration, without any information
regarding when or where the incident took place, or what Mr.
Williams specifically said.
Even if the Court were to credit Plaintiff's vague allegations
regarding these threats, the undisputed record shows that those
threats were never carried out. CUNY has presented evidence that
Plaintiff received three promotions in the 1990s: to senior
custodial supervisor in 1993, to assistant principal custodial
supervisor in 1994, and to principal custodial supervisor in
1997. (Arthur Brown Dec. ¶ 12.) CUNY has further shown that on
April 2, 2004, during the pendency of this litigation, Plaintiff
was appointed to the civil service position of principal
custodial supervisor. (Janis Rep. Dec. ¶ 17.) Plaintiff thus
fails to show that he suffered any negative consequences for
refusing to withdraw his earlier administrative complaint or even allege any effect on his working conditions.
Without an adverse employment action, this incident cannot give
rise to a prima facie case. See, e.g., Meckenberg v. New
York City Off-Track Betting, 42 F.Supp.2d 359, 381 n. 13
(S.D.N.Y. 1999) (finding that employer's alleged request that the
plaintiff withdraw her EEOC charge was not an adverse employment
action where she could not show any negative consequence of her
refusal to do so).
Plaintiff next alleges that CUNY transferred him to four
different work sites over a two-year period beginning in 1987.
CUNY does not dispute that these transfers took place.
This aspect of Plaintiff's discrimination claim fails as a
matter of law because the work transfers were not "adverse
employment actions" for purposes of Title VII. An employee
suffers an adverse employment action if a "materially adverse
change" in the terms and conditions of his employment takes
place. Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640
(2d Cir. 2000). A work transfer is an adverse employment action
"if it results in a change in responsibilities so significant as
to constitute a setback to the plaintiff's career." Id. at 641.
Thus in order to withstand summary judgment, a plaintiff claiming
discrimination based on a work transfer must show that the
transfer "was to an assignment that was materially less
prestigious, materially less suited to [his] skills and expertise, or materially less conducive to career advancement."
Id. at 641. On the other hand, mere "disparity in working
conditions" between one work location and another is, as a matter
of law, a "minor" employment action. Id.
Plaintiff does not claim that the transfers reduced his salary,
caused him to suffer a material change in benefits, or led to a
loss of job responsibilities or career opportunities. Plaintiff
merely claims that his transfer to Baskerville Hall required him
to move heavy equipment without the help of an elevator.
Plaintiff also states that he is "not aware of any other
employee" who had been transferred to four work sites over a
two-year period. (P. Dec. ¶ 25.)
These allegations cannot meet Plaintiff's burden of showing
that his transfers created a "materially significant
disadvantage." Harlston v. McDonnell Douglas Corp.,
37 F.3d 378, 382 (8th Cir. 1994). Although working at Baskerville Hall
may have been more difficult than at other locations, Plaintiff
does not claim that those duties were inappropriate for his skill
set. "[N]ot every unpleasant matter short of discharge or
demotion" gives rise to a legitimate claim under Title VII.
Richardson v. New York State Dep't of Correctional Serv.,
180 F.3d 426, 446 (2d Cir. 1999).
Further, CUNY has presented legitimate business reasons for his
transfers. Gerald Miller's sworn declaration states that custodial staff members are often transferred from one building
to another depending on the staffing needs of CUNY. (Miller Dec.
¶ 3.) Plaintiff does not present any evidence to show that this
justification is pretextual. Indeed, he does not attempt to draw
a connection between his transfers and discriminatory intent. The
mere fact that he is Sierra Leonian and was transferred to
different work sites does not give rise to an inference of
discrimination. See, e.g., Sklar, 2001 WL 984724, at *5
(mere fact of Plaintiff's age and termination does not permit an
inference of age discrimination). At best, Plaintiff has "done
little more than cite to [his] mistreatment and ask the [C]ourt
to conclude that it must have been related to [his] race."
Lizardo v. Denny's, Inc., 270 F.3d 94, 104 (2d Cir. 2001).
Next, Plaintiff claims that Mr. Lessner "stacked [his] record"
with allegedly false statements and that he was "barrag[ed] with
unsubstantiated counseling statements." P. Mem. at 15.) Plaintiff
argues that these events show that he suffered discriminatory
treatment at CUNY.
Plaintiff's allegations regarding these incidents are
conclusory and lack any concrete particulars; Plaintiff therefore
does not satisfy the requirements of Rule 56(e). Meiri,
759 F.2d at 998. Plaintiff admits that he does not know when Mr.
Lessner "stacked" his record, nor does he present any evidence documenting the allegedly fabricated reports. (P. Dep.
at 61.) At his deposition, Plaintiff could not provide an example
of such a fabrication. (P. Dep. at 62.) He likewise could not
identify a single negative counseling statement he received. (P.
Dec. ¶¶ 26, 27.) In opposing CUNY's motion for summary judgment,
Plaintiff does not present a single example of a fabricated
report, nor does he identify the contents of any such report.
This is precisely "the type of unsupported, conclusory allegation
that is insufficient to defeat a motion for summary judgment."
Khan, 2003 WL 22149527, at *6. See also Shumway v. UPS,
118 F.3d 60, 64 (2d Cir. 1997) (affirming grant of summary
judgment where plaintiff presented "little more than conclusory
statements of no probative value" in support of her
Plaintiff also argues that CUNY discriminated against him by
assigning him to work in Steinman Hall. He claims that Steinman
Hall was contaminated with asbestos and caused him to become ill,
and that when he complained about work conditions, Mr. Lessner
told him that such work "befits one of your kind." (P. Dec. at ¶
As is true of Plaintiff's other allegations, his claims
regarding Steinman Hall are conclusory and devoid of any
particulars. Meiri, 759 F.2d at 998. Plaintiff does not recall
when he was assigned to work at Steinman Hall. (P. Dep. at 37.) Plaintiff could not recall the name of the company that performed
the demolition work that allegedly caused the asbestos
contamination that he was ordered to clean. (P. 38.) Plaintiff
claims that the demolition company was ordered to leave the area
due to the contamination, but could not recall when that took
place. (P. Dep. at 38.) Plaintiff alleges that he suffered from
coughing, sneezing, "being aware of holding [his] breath, not
wanting to breathe in an area known to be contaminated," but
admits that he sought no medical attention in response to these
problems, and that his coughing and sneezing spells generally
took place while he was in the allegedly contaminated area. (P.
Dep. at 40.)
In addition to the ambiguity of Plaintiff's allegations, and
more significantly, he again fails to provide any link whatsoever
between his assignment to Steinman Hall and any race or national
origin discrimination. Plaintiff identified the two subordinates
who worked with him at Steinman Hall. (P. Dep. at 39.) But he
does not identify those individuals' races or national origins,
nor does he allege that CUNY was discriminating against them
based on their race and/or national origin. The meaning of Mr.
Lessner's comment that work at Steinman Hall was appropriate for
Plaintiff's "kind" is unclear. Nonetheless, even assuming that by
"kind" Lessner referred to Africans, such a stray comment,
without some temporal link to the assignment decision, is not evidence of discrimination.
See, e.g., Grima v. Skidmore College, 180 F.Supp.2d 326,
339 (N.D.N.Y. 2001) ("[S]tray remarks of a decision-maker,
without a more definite connection to the employment decision,
are insufficient to prove a claim of employment
discrimination."); Castro v. Local 1199, 964 F.Supp. 719, 726
(S.D.N.Y. 1997) ("[S]tray remarks in the workplace, by
themselves, will not defeat the employer's motion for summary
judgment.") In sum, the circumstances of Plaintiff's assignment
to Steinman Hall would not permit a rational juror to infer race
or national origin discrimination.
The next basis for Plaintiff's discrimination claim is that his
superiors Messrs. Clarke and Wooten "denied [him] supplies and
equipment to perform [his] assignments, such [as] cleaning fluids
and machines." (P. Dec. ¶ 26.) In response to these allegations,
CUNY offers the sworn declaration of Anthony Colon, the custodial
assistant in charge of distributing supplies from the college's
Department of Physical Plant Services. (Colon Dec. at ¶ 1.) Colon
explains that the process for requesting and obtaining new
supplies at CUNY is "fairly routine," requiring only that the
supervisor complete a request form for the supplies needed.
(Id. at ¶ 4.) Colon states that as of 2004, when he submitted
his declaration, he had been filling Plaintiff's supply requests
for eight years and that he had never denied any of Plaintiff's requests or given him inferior
supplies. (Id.) Colon also states that Plaintiff's supervisors
never directed him to deny any of Plaintiff's supply requests.
Plaintiff, on the other hand, offers no concrete particulars
regarding the alleged inferior supplies. At his deposition,
Plaintiff was unable to identify when he was given the allegedly
inferior supplies. (P. Dep. at 30.) Nor could Plaintiff identify
who gave him the inferior supplies; he merely testified that "the
management of the facility, the management of the college" did
so. (Id. at 31.) His testimony was similarly ambiguous with
regard to the inferior supplies themselves. He claimed that
"sometimes they issue[d] machine without wheels" for cleaning
floors, and that "chemicals [he] was given were diluted or
watered down rendering it ineffective in most cases." (Id.)
Plaintiff is unable to "pinpoint people, times or places" when he
was allegedly given inferior supplies. Meiri, 759 F.2d at 998.
Nor does Plaintiff offer any evidence to suggest that CUNY gave
superior supplies to other non-black, non-foreign born employees,
evidence that could be circumstantial proof of a discriminatory
motive. Plaintiff thus fails to provide any evidentiary linkage
between the alleged inferior supplies and race or national origin
discrimination. Moreover, allegations regarding inferior supplies do not make
out a prima facie case of discrimination for the simple reason
that this is not an adverse employment action. Although Title VII
does not define adverse employment actions "solely in terms of
job termination or reduced wages and benefits, and that less
flagrant reprisals by employers may indeed be adverse,"
Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir.
1997), "not every unpleasant matter short of [discharge or
demotion] creates a cause of action" under the Act. Welsh v.
Derwinski, 14 F.3d 85, 86 (1st Cir. 1994). As the court
explained in Monica v. New York City Off-Track Betting Corp.,
No. 93 Civ. 6371 (RPP), 1995 WL 117879 (S.D.N.Y. 1995), "[a]
materially adverse change might be indicated by a termination of
employment, a demotion evidenced by a decrease in wage or salary,
a less distinguished title, a material loss of benefits,
significantly diminished material responsibilities, or other
indices that might be unique to a particular situation."
Monica, 1995 WL 117879 at *8. Thus adverse employment actions
consist of "such tangible matters as transfers and changes in
salary, job title, and job responsibilities." Davis v. City
University of New York, No. 94 Civ. 7277 (SHS), 1996 WL 243256,
at *8 (S.D.N.Y. 1996). Giving Plaintiff inferior supplies did not
alter Plaintiff's salary or job title, diminish his
responsibilities or cause him to lose job benefits. Plaintiff presents no evidence of any other "tangible matter" that changed
due to the alleged inferior supplies. Id. Accordingly, he fails
to state a prima facie discrimination claim based on these
Plaintiff also grounds his discrimination claim on the
allegation that William Wooten, one of his superiors, assaulted
him on January 26, 1989 by slamming a door in his face.*fn5
At his deposition, Plaintiff testified that Mr. Wooten "lost his
cool" over a dispute between the two men over whether Plaintiff
had completed certain work tasks adequately. (P. Dept. at 71.)
Plaintiff also alleges that Kenneth Borden "violently poked" him
in the chest on or around March 22, 2000. (P. Dec. at 8.)
Even if the Court were to credit as true Plaintiff's
allegations of these assaults, he has not provided any evidence
linking such behavior to national origin discrimination. The
behavior of Wooten and Borden was clearly inappropriate for the
work, or any other, environment. But the federal employment
discrimination laws do not "make employers liable for doing
stupid or even wicked things; it makes them liable for
discriminating." Norton, 145 F.3d at 120. Again, Plaintiff has done nothing more than "cite to [his] mistreatment and ask the
[C]ourt to conclude that it must have been related to [his]
race." Lizardo, 270 F.3d at 104.
In conclusion, the evidence Plaintiff presents fails either to
give rise to an inference of discrimination or rebut CUNY's
legitimate, non-discriminatory reasons for these actions. His
discrimination claim is therefore dismissed.
Like his discrimination claim, Plaintiff's retaliation claim
relies on CUNY's failure to promote him in 1987, 1996, 1999 and
2000. For the same reasons Plaintiff's allegations fail to
support a discrimination claim, they also fail to support a
retaliation claim. Plaintiff does not show that he applied for
the custodial supervisor positions in 1987, the Acting
Administrative Superintendent position in 1998 and 2000, or the
Administrative Superintendent position in 2002, and therefore
fails to state a prima facie case based on those incidents. His
claims arising from his non-selection for the Chief
Administrative Superintendent position in 1996 were not
administratively exhausted. Accordingly, the only incident that
requires discussion is CUNY's decision not to promote him to the
Administrative Superintendent position in 2000.
Title VII provides that "it shall be an unlawful employment
practice for an employer to discriminate against any of his employees . . . because [such employee] has opposed any practice
made an unlawful employment practice by this subchapter."
42 U.S.C. § 2000e-3(a). A plaintiff making a retaliation claim under
Title VII must prove four elements: (1) that he participated in a
protected activity; (2) that his employer was aware of the
activity; (3) that an adverse employment action occurred; and (4)
that there was a causal connection between the protected activity
and the adverse employment action. Cruz v. Coach Stores, Inc.,
202 F.3d 560, 566 (2d Cir. 2000). As explained above, Mr. Farley
chose Mr. Borden for the Administrative Superintendent position
in 2000. Mr. Farley began working at CUNY in 1997, eight years
after Plaintiff's last administrative complaint had been filed.
He died in 2001, while this litigation was pending. Plaintiff
fails to even allege, much less show, that Mr. Farley was aware
of his administrative complaints from the 1980s when he chose Mr.
Borden over Plaintiff for the position of Administrative
Supervisor in 2000. Accordingly, he fails to make out a prima
facie case of retaliation.
VI. Hostile Work Environment
Finally, Plaintiff brings a hostile work environment claim,
relying on the same insulting comments by Wooten and Lessner
addressed above. Wooten died in 1989 and Lessner died in 1990. These comments were thus made at least eleven years before the
filing of Plaintiff's original complaint in this Court.
To prevail on a hostile work environment claim, the complained
of conduct must be "sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive
working environment." Harris v. Forklift Sys., 510 U.S. 17, 21
(2003). The "mere utterance of an . . . epithet which engenders
offensive feelings in an employee . . . does not sufficiently
affect the conditions of employment to implicate Title VII."
Id. Indeed, Title VII is not "a general civility code." Oncale
v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81,
118 S.Ct. 998, 140 L.Ed.2d 201 (1998). "[S]imple teasing, offhand comments,
and isolated incidents (unless extremely serious) will not amount
to discriminatory changes in the terms and conditions of
employment." Faragher v. City of Boca Raton, 524 U.S. 775, 788,
118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). (citation and internal
quotation marks omitted). The complained of "incidents must be
repeated and continuous; isolated acts or occasional episodes
will not merit relief." Kotcher v. Rosa & Sullivan Appliance
Ctr., 957 F.2d 59, 62 (2d Cir. 1992).
In his opposition papers, Plaintiff claims that since 1984, "he
has been subjected to a barrage of insults, such as his superiors
referring to him as a `monkey chaser' and `black a .'" (P. Mem.
at 22.) But Plaintiff identifies only those two comments that could be construed as relating to his race and/or
national origin. Given that Wooten and Lessner, the alleged
speakers of these insults, had both died by 1990, these comments
could not have been repeated and continuous. Evidence that
Plaintiff's supervisors made isolated, insulting remarks to him
over sixteen years ago does not rise to the level of an abusive
work environment as a matter of law. Accordingly, Plaintiff's
hostile work environment claim is dismissed.
For the foregoing reasons, CUNY's motion for summary judgment
is granted. The complaint is accordingly dismissed. The Clerk of
the Court is directed to close this case.
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