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United States District Court, S.D. New York

September 16, 2005.


The opinion of the court was delivered by: BARBARA JONES, District Judge

Opinion and Order

I. Introduction

  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 him.

  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 position.

  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 discrimination.

  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 ¶¶ 29, 30.)

  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 intent.

  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 Supervisor.

  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 somehow discriminatory.

  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 discrimination claim).

  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 ¶ 22.)

  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. (Id.)

  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 allegations.

  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.

  V. Retaliation

  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.

  VII. Conclusion

  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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