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United States District Court, S.D. New York

December 16, 2005.


The opinion of the court was delivered by: PAUL CROTTY, District Judge


Plaintiff Michael Edwards, an African-American male, brings this action against defendant The City of New York ("the City"),*fn1 his former employer, alleging disparate treatment, hostile work environment, and wrongful termination of his employment at the New York City Department of Environmental Protection ("DEP") on the basis of race. Plaintiff brings his claims under 42 U.S.C. § 1981 and the New York State Executive Law § 296. Plaintiff also brings a claim under 42 U.S.C. § 1983, alleging that the DEP's failure to provide him with an administrative hearing prior to his termination violated his Fourteenth Amendment right to due process. Defendant now moves for summary judgment on all claims. For the reasons explained below, defendant's motion for summary judgment is GRANTED. BACKGROUND


  A. Plaintiff's Employment with DEP

  1. Plaintiff's Education and Job Titles

  Edwards, a certified environmental specialist, obtained a Bachelor's degree in Environmental Science, with honors, prior to commencing employment with the DEP. (Pl.'s Dep. 78:12-78:14, 78:17-78:18.) In addition, Edwards continued his education part time while working at the DEP, pursuing a master's degree from City University of New York ("CUNY"). (Pl.'s Dep. 261:14-261:15; Schiano-Strain Decl., Exs. J & L.)

  Edwards began working for the DEP on July 6, 1999, as a Provisional Junior Engineering Work Study Trainee. (Schiano-Strain Decl., Ex. B.) On August 20, 2001, Edwards was appointed as a Provisional Air Pollution Inspector in the DEP Bureau of Environmental Compliance.*fn2 (Id.) Edwards remained in that position until the DEP terminated his employment on January 3, 2003. (Id.)

  2. Writing of Violations

  As a provisional air pollution inspector, a large part of Edwards's job was to conduct field inspections to observe and investigate excessive air contaminants or excessive noise, in violation of the New York City Code. (Schiano-Strain Decl., Ex. N.) When Edwards identified a violation, he was required to write up a notice of violation to the offending entity or individual. (Id.) He was also expected to testify at Environmental Control Board ("ECB") hearings, the administrative body that adjudicated contested violations. (Id.)

  Edwards was an aggressive violation writer. Both supervisors and fellow inspectors criticized Edwards for writing too many violations for each infraction. (Pl.'s Dep. 136:5-136:24.) As a result, Edwards's supervisors voided his violations on multiple occasions. (Pl.'s Dep. 89:16-93:16.) While Edwards concedes that it is standard practice for senior inspectors to review violations written by junior inspectors,*fn3 he complains that his violations were scrutinized more closely and more frequently than those written by other inspectors. (Pl.'s Dep. 160:9-161:16.) While Edwards now alleges that this disparate treatment is on account of race, he admitted at his deposition that his violations were scrutinized and voided more than others because he wrote too many violations at each site, rather than focusing on only the most flagrant or serious violations, which was the usual practice by other inspectors. (Pl.'s Dep. 136:5-140:20.)

  Evidence of disparate treatment in the supervision and voiding of violations

  Edwards provides no evidence of racial epithets, jokes, or preferences that would suggest that his supervisors' conduct was racially motivated. Further, Edwards provides no statistics, affidavits, or other concrete evidence to demonstrate that other inspectors were actually treated differently. In fact, despite Edwards's claim that supervisors questioned his violations constantly, he admits that he wrote "over one thousand" violations while working for the DEP, yet only "like six or four or five" were actually voided. (Pl.'s Dep. 143: 5-143:24.) Edwards's only evidence of disparate treatment by supervisors is his own self-serving deposition testimony. Edwards testified that Ms. Kelpin, the Deputy Commissioner of the BAN HAZMAT Department, "told [his] supervisors to tell [him] not to write violations which were in the code," and questioned his violations "all the time" by writing sticky notes on his violations. (Pl.'s Dep. 89:20-89:22, 91:4-91:13.) Edwards admits in his deposition that he does not know if Ms. Kelpin commented about other inspectors' violations or if she scrutinized the violations of other black inspectors to a greater degree than white inspectors. (Pl.'s Dep. 93:21-93:24.) Edwards does not explain why he believes that Ms. Kelpin's conduct was racially motivated, other than the fact that Ms. Kelpin is white, while Edwards is African American.

  Edwards also testified that at one point Edwards's direct supervisor, Joe DiLeo, put another inspector in the field with Edwards. Edwards claims that Mr. DiLeo paired the two men together to "hold [Edwards] back" so he would not write so many violations, and alleges that this pairing was discriminatory because Mr. DiLeo did not tell other inspectors not to write so many violations. (Pl.'s Dep. 130:3-130:20.) Again, Edwards provides no evidence to suggest that Mr. DiLeo's conduct was racially motivated, and even admits in his deposition that he did not discuss the subject with other inspectors, white or black. (Pl.'s Dep. 130:16-132:20.)

  Mr. DiLeo provides a different version of what happened. DiLeo explains he paired Edwards up with another, more senior inspector "to guide him as to the type of violations he was issuing," (DiLeo Dep. 41:17-41:22), because Edwards issued too many violations for the same incident. (DiLeo Dep. 41:13-44:21.) Mr. DiLeo described Edwards's violation writing as "overkill." (DiLeo Dep. 44:17.)

  Edwards provides other unsubstantiated stories to support his claim of disparate treatment. For example, Edwards claims that Mr. Buffa, a white inspector, slept in his vehicle and therefore did not always answer the radio. If Edwards did not answer the radio, he would be "yelled out [sic] or called out." (Pl.'s Dep. 125:16;125:22.) Edwards does not offer any witness testimony or affidavits to support this allegation.

  3. Denial of Overtime

  Edwards also claims that he was denied opportunities to take part in specialized assignments and overtime as a result of his race. In support of this allegation, Edwards testified that he was bumped off the M.A.R.C.H. list — a special, ongoing project at the DEP that offered weekend overtime hours to employees — while similarly situated non-black employees regularly made the list. (Pl.'s Dep. 191:8-192:21.) Edwards does not offer any evidence to substantiate his claim that non-African American employees made the list more often than he did, nor does he prove that African-American employees were also bumped off the list at a higher rate than non-African American employees.

  The M.A.R.C.H. list for November, submitted by defendant as an exhibit to support this motion, shows that Edwards was, in fact, bumped off the December list. (Schiano-Strain Decl., Ex. F.) It also shows, however, that three other inspectors, at least one of whom was white, were also bumped off the December and January M.A.R.C.H. lists. (Id.) In fact, Edwards conceded that Edward Crilly, a white inspector, was also bumped off the M.A.R.C.H. list. (Pl.'s Dep. 192:22-193:10.)

  In his deposition, Edwards admitted that he was given other overtime opportunities, particularly by working weekend "horn honking detail." (Pl.'s Dep. 195:9-195:21.) The M.A.R.C.H. list also shows that Edwards was placed on the list for overtime work on November 15, 2002, and that no inspector received more than one day of overtime on the November list. (Schiano-Strain Decl., Ex. F.) In addition, a DEP print-out of all Air Pollution Inspectors and their annual compensation reveals that Emmanuel Ojo, an African-American inspector, had the highest overtime earnings for the 2001 calendar year. (Schiano-Strain Decl., Ex. G.) 4. Confrontations with Supervisors

  Edwards clashed with his supervisors on at least two occasions. On September 13, 2001, Edwards was supposed to go to "smoke school" for training. (Pl.'s Dep. 248:11-248:24, 250:2-250:24; Schiano-Strain Decl., Exs. H & I.) He had arranged to meet up with Inspector Robert Rasmussen at the office around 7:30 a.m., so that they could drive together, but Edwards was late due to traffic on the Brooklyn-Queens Expressway. By the time Edwards got to the office at 8:15 a.m., Mr. Rasmussen had already left, but Mr. DiLeo, Mr. Montalvo, and a few other employees were at the office having a meeting. Mr. DiLeo admonished Edwards, saying: "Mike, What are you doing here, I though you were supposed to be at smoke school." (Schiano-Strain Decl., Ex. H.). Edwards explained his meeting with Mr. Rasmussen and the reason for his delay, but Edwards was upset at the fact that Mr. DiLeo reproached him, so he told Mr. DiLeo not to yell at him before he walked away. (Id.) Edwards then back tracked, went right up to Mr. DiLeo's face, and gave him "a warning" not to "speak to [him] in that tone of voice." (Pl.'s Dep. 250:18-250:24.)

  Edwards testified that he did not raise his voice at any time during the incident, (Id. 250:15-250:17), but Mr. DiLeo recounts that Edwards gave his warning in a "loud and threatening manner." (Schiano-Strain Dec., Ex. H.) Mr. Montalvo, who witnessed the incident, found Edwards's conduct "insubordinate," and wrote a memorandum to Ms. Gail Kelpin, Director of Enforcement, detailing the incident and recommending Edwards's termination for insubordination. (Schiano-Strain Decl., Ex. I.) Mr. Montalvo also directed Mr. DiLeo to write a report of the incident, which he did, (Schiano-Strain Decl., Ex. H), though Mr. DiLeo testified that if Mr. Montalvo had not told him to write a report, he would not have, as he did not consider the incident "severe enough" to warrant a formal or official warning notice. (DiLeo Dep. 30:22-31:23, 32:14-32:17.) The report was added to Edwards's personnel file, but was not shown to Edwards at any time prior to this litigation. (DiLeo Dep. 31:24-32:13.) The next day — the morning of September 14, 2001 — Edwards and Mr. Montalvo had another confrontation, which Mr. Montalvo documented in another memorandum to Ms. Kelpin. (Schiano-Strain Decl., Ex. I.) At a staff meeting, another inspector suggested that inspectors should not put American flags on city vehicles, to protect the safety of inspectors who had to travel into various neighborhoods throughout the city. (Id.) Everyone — except Edwards — agreed that this is a good policy. (Id.) Edwards interjected that he had already purchased a flag and put it on his vehicle, and he did not want to remove it. (Id.) Mr. Montalvo did not like this, so he cut in and stated that since it was a city vehicle, if Edwards refused to remove the flag Mr. Montalvo would just take Edwards's keys. (Id.) At that point, Edwards gave in and agreed to remove it. (Id.)

  Mr. Montalvo made Edwards stay after the meeting. (Id.) Edwards told Mr. Montalvo that he did not like the way Mr. Montalvo spoke to him and "told him to give the keys" and did not like Mr. Montalvo's attitude. (Id.) He also told another inspector who was present at the meeting that he "did not like taking orders," to which Mr. Montalvo responded that if Edwards did not like taking orders, he was "in the wrong place." (Id.) Mr. Montalvo felt that Edwards spoke to him "with an attitude and intimidating tone of voice," so he warned Edwards about his conduct. (Id.) At that point, Edwards agreed to remove the flag and left. (Id.)

  At the same meeting, Edwards told Mr. Montalvo that he did not like the Manhattan office and felt that Mr. Montalvo had something against him. (Id.) Mr. Montalvo stated in his memo: "I believe the reason [for Edwards's attitude] is that I did not allowed [sic] him to take extended lunch hours so he could attend his college during the day." (Id.)

  5. Confrontations with the Public

  In his deposition, Edwards recounts a number of arguments with members of the public, though he states that he never raised his voice or cursed at anyone. (Pl.'s Dep. 252:14-269:3.) Mr. Montalvo disagrees, however, and claims that he received complaints from members of the public and from other inspectors that Edwards yelled at people. Mr. Montalvo described Edwards as "a time bomb waiting to explode." (Schiano Strain Decl., Ex. K, 2.) Montalvo stated in another memorandum that Edwards "speaks to complainant's [sic] in a hostile manner and in an attitude that is not professional," (Schiano-Strain Decl., Ex. I, 2.) and that he "plac[es] the accompanying inspector in precarious situations [because] they have to defend his unprofessional behavior." (Id.)

  In an incident on October 9, 2002, Edwards confronted some construction workers operating a "hi-low" (forklift) at CUNY. (Pl.'s Dep. 257:18-262:12; Schiano-Strain Decl., Ex. L, 2.) Edwards stated that the workers' hi-low was creating carbon monoxide fumes, which he could smell from the third floor classroom. (Pl.'s Dep. 258:3-258:18.) Edwards was not on duty at the time, he was attending class, but he invoked his position as a DEP inspector by threatening to write up a violation against the workers. (Pl.'s Dep. 261:5-261:6, 261:13-261:17.) Edwards claims that he did not get physical with the workers or bump into anyone, but he did raise his voice because he "was being cursed at and yelled at." (Pl.'s Dep. 259:15-260:4.) Edwards says that when he yelled at the men, he merely told them to turn the hi-low off and threatened that if they did not turn it off, he would write a violation against them. (Pl.'s Dep. 260:19-261:8.)

  The Incident Report submitted by the Public Safety Department at CUNY, which describes the incident as a "confrontation," tells a slightly different story: Edwards "demanded" that the driver shut off his vehicle and demanded that the driver and the site safety manager produce their licenses so that Edwards could issue them both a summons. Edwards then "bumped" the two men and "kept yelling and screaming that he wanted to write a complaint." (Schiano-Strain Decl., Ex. L, 2.) The public safety guards had to calm Edwards down and separate him from the crew so that he could come to the office and write a statement. Edwards wrote up a statement, as did the public safety officers and three of the construction workers. (Id.)

  Mr. Montalvo reports other incidents in the field. For example, he states that on or around October 28, 2002, he received a phone call at his Queens office from an irate "complainant screaming at [him] because Edwards went to her apt. to make a notice inspection and . . . told [the complainant] that if she did not shut up he was going to tie her up and tape her mouth shut." (Schiano-Strain Decl., Ex. K, 2.) Mr. Montalvo does not provide a witness statement from the complainant to support this allegation because he "forgot to ask her to write a letter of her complaint." (Id.) Edwards testified that he does not recall this incident. (Pl.'s Dep. 257:13-257:17.)

  Mr. Montalvo relates another incident in which Edwards had a "hot argument" with a security guard at ECB, during which Edwards "grabbed him by his private and squeezed him until tears came out of the guards eyes." (Schiano-Strain Decl., Ex. K, 2.) While the City does not provide any additional witness statements memorializing this incident, Mr. Montalvo's report states that the incident occurred in front of another inspector, Mr. Buffa, who eventually had to step in and break up the confrontation. (Id.)

  6. Confrontation at an E.C.B. Hearing

  On at least one occasion, Edwards had trouble controlling his temper during an ECB hearing. According to the Decision and Order submitted by the ALJ in charge of the case, Edwards exhibited a "bizarre and unprovoked outburst at the hearing." (Schiano-Strain Decl., Ex. M.) The ALJ relays:

During cross-examination, Inspector Edwards was asked by respondent's counsel whether or not he went to the roof of the subject premises to verify that the smoke he observed from the street was, in fact, emanating from its smoke stack. To my [the ALJ's] complete surprise and consternation, Inspector Edwards went into a temper tantrum, accusing respondent's counsel of harassing him. Even after the senior inspector who accompanied him into the hearing took Inspector Edwards outside to calm him down, Inspector Edwards remained belligerent and edgy throughout the hearing. I find Inspector Edwards' behavior extremely disturbing and alarming.
(Id.) Mr. Montalvo heard about the incident from Mr. McCoy, the senior inspector who witnessed the outburst. (Schiano-Strain Decl., Ex. K, 2.) According to Mr. Montalvo, the ALJ was so upset that "she will never take one of his cases again." (Id.)

  Furthermore, the ALJ observes that the documentary evidence did not support Edwards's version of the incident. A photograph of the offending smoke stack — purportedly taken only three minutes after Edwards claims to have observed the smoke-shows no smoke emanating from the smoke stack at all. (Schiano-Strain Decl., Ex. M.) Edwards had no explanation for this discrepancy. (Id.) Since respondent's defense was that the smoke observed by Edwards did not come from its smoke stack, Edwards's testimony on this issue was crucial. (Id.) Weighing this evidence in light of Edwards's "bizarre" and defensive behavior on cross-examination, the ALJ did not find Edwards's testimony that the violation had actually occurred credible and found for respondent. (Id.)

  The one remaining violation written by Edwards had to be dismissed because Edwards cited the wrong Code section. (Id.) Edwards originally cited § 122(b)(2), but later moved to amend the citation to state a violation of § 122(b)(1). (Id.) It turns out that the correct section was § 123(e). (Id.) Since Edwards had not referenced this section, or moved to amend the violation to cite this section, the ALJ was forced to dismiss the violation in full. (Id.)

  7. Work Evaluations and Pre-Termination Disciplinary Record

  Edwards claims that he was never warned by any of his supervisors that there was a problem with his conduct. (Pl.'s Dep. 103:13-104:24.) Mr. Montalvo testifies, however, that Edwards was verbally warned about the problems he was having with plaintiff on multiple occasions. (Montalvo Dep. 31:5-31:12, 74:11-74:16.) Mr. Montalvo wanted to issue a written warning to Edwards, but was advised not to by his supervisor, Frank Cecora, who felt that since Edwards was new, they should "give him a break, . . . work with him, [and] maybe he will get straightened out." (Montalvo Dep. 31:13-32:23.)

  Despite Mr. Montalvo's dissatisfaction with Edwards's conduct, Mr. DiLeo gave Edwards a good Performance Evaluation Report for the period from August 20, 2001 through December 31, 2001. (Akakwam Decl., Ex. 11.) On a scale of "unsatisfactory," "conditional," "good," "very good," or "outstanding," Edwards was given scores of "very good" for each task, even tasks that were rated in part on the employee presenting himself and the Department "in a professional manner." (Id., Task Nos. 3 & 4.) Under "Justification for Overall Rating," Mr. DiLeo wrote: "The short time Inspector Edwards has been with the Enforcement Unit, He has Distinguished himself positively from his fellow Inspectors. If he maintains his eagerness and Positive Attitude, he will prove an asset to the Dept." (Id.) Mr. DiLeo recommended that Edwards should be retained in his present title. (Id.)

  B. Prior Complaints

  Edwards admits that he never filed a complaint with the DEP's Office of Equal Employment Opportunity, though he knew of its existence and policies. (Pl.'s Dep. 243:11-244:3.) Edwards testified that he did not contact the DEP's Office of Equal Employment Opportunity because he "was suspicious of" the office. (Pl.'s Dep. 244:4-244:10.) He provides no explanation for this suspicion, other than to state that, based on a training seminar that he attended about the Office of Equal Employment Opportunity, he felt that if he "made a complaint, the complaint would not be answered." (Pl.'s Dep. 244:11-244:22.)

  C. Plaintiff's Arrest and Termination

  On December 6, 2002, Edwards was pulled over by the NYPD after making an illegal turn at the corner of Tillary and Adams Streets in Brooklyn. (Schiano-Strain Decl., Ex. O, 2.) Edwards was driving a city vehicle. (Pl.'s Dep. 281:7-281:10.) When the officer ran Edwards's license number, he discovered that Edwards's license had been suspended on November 24, 2002, due to Edwards's failure to respond to an earlier summons arising from an unrelated traffic violation on September 17, 2002.*fn4 (Akakwam Decl., Ex. 5 & 7.) Edwards was then arrested for driving with a suspended license. (Pl.'s Dep. 281:14-281:17.)

  Edwards did not notify the DEP that his license was suspended at any time prior to the December 6, 2002 arrest. (Pl.'s Dep. 299:16-299:20.) Edwards claims that he did not notify the DEP of the suspension because he did not know until the day of the arrest that his license was suspended. (Id.)

  The same day, Edwards appeared before a court clerk or ALJ in the Traffic Violations Division of the Brooklyn DMV. (Pl.'s Dep. 315: 20-315:23.) Edwards posted a bond for an April 8, 2003 trial, so the suspension on his license was immediately lifted. (Akakwam Decl., Ex. 7.) DEP Inspector Rasmussen was present at this hearing, and informed the DEP the same day that the suspension of Edwards's license was lifted until the trial. (Pl.'s Rule 56.1 Statement ¶ 42.)

  Edwards immediately notified the DEP of his arrest, as required by the rules and regulations of the DEP.*fn5 The same day (Dec. 6, 2002), the DEP sent Edwards a Notice of Interview, which informed Edwards that he was required to appear for an interview to prove that he had a valid driver's license, and therefore was in compliance with the DEP Uniform Code of Discipline, at a date and time to be announced. (Schiano-Strain Decl., Ex. R.) Edwards met with Mr. Highman of the DEP Office of Disciplinary Counsel on December 11, 2002. (Pl.'s Dep. 227:2-227:23.) At the meeting, Mr. Highman informed Edwards that he was aware that Edwards's license had been reinstated. (Id.)

  The DEP does not have a policy of automatic suspension for DEP employees who report arrests. (Montalvo Dep. 58:2-58:9.) Still, On December 9, 2002, Edwards was suspended from duty. (Akakwam Decl., Ex. 8.) On January 3, 2003, Edwards was terminated by the DEP. (Akakwam Decl., Ex. 9.)

  According to a December 31, 2002 memorandum from Mr. Michael Gilsenan, Assistant Commissioner of the DEP, the DEP recommended Edwards's termination not only because of his failure to report the suspension of his license, as required under DEP policy, but also because of a "history of misconduct." (Schiano-Strain Decl., Ex. T.) According to the Report:

Mr. Edwards has repeatedly been involved in verbal altercations with supervisors, coworkers and the public. We have received reports of him threatening to physically harm a complainant, and being involved in a physical altercation with a security guard at ECB. His outbursts have also been documented during ECB hearings where the Administrative Law Judge categorized his outburst as bizarre, and found his behavior to be extremely disturbing and alarming.
Mr. Edwards have received repeated warnings from his supervisors and has been advised that type of behavior is inappropriate, but it has not improved.
(Id.) The report does not identify the source(s) of these complaints. Based on this overall record, Edwards was terminated.

  Plaintiff claims that he was disciplined and eventually terminated for conduct for which similarly situated white employees were not disciplined or terminated. (Pl.'s Dep. 206:14-206:17.) In his deposition, he alludes to an incident in 1993-nine years before Edwards's driving violation — in which Greg Astrosky,*fn6 a white inspector with the air and noise division of the DEP, was involved in a hit-and-run accident while under the influence of alcohol and cocaine. (Pl.'s Dep. 206:20-206:24.) Edwards states that the incident happened over the weekend and makes no mention of whether the incident occurred in a city-owned vehicle (as his own arrest did). (Pl.'s Dep. 206:22.) According to Edwards, Mr. Astrosky was not terminated from his position as a DEP inspector, (Pl.'s Dep. 207:3.), though the DEP claims that Mr. Ostrosky was, in fact, terminated as a result of the incident to which plaintiff refers.*fn7 (Def.'s Mem. of Law in Supp. 13.)

  Other than Edwards's own account of the incident, which he claims he learned of from Senior Inspector McCoy, (Pl.'s Dep. 207:17-207:19), Edwards does not provide any documentary evidence or witness affidavits to support this somewhat ancient story. Moreover, Edwards does not provide any employee information to establish that Mr. Ostrosky was, at the time of the alleged incident, a "similarly situated" employee, so that a reasonable trier of fact could compare the treatment of Mr. Ostrosky to that of Edwards and conclude that Edwards was treated differently on account of his race. Edwards admits that he does not know Mr. Astrosky and has never discussed the incident with him. (Pl.'s Dep. 208:11-208:15.)

  Edwards also tells of another incident in which a DEP-employed tug boat operator was driving while intoxicated. (Pl.'s Dep. 216:11-216:24.) Here too, Edwards provides no details of the incident, the race of the employee, or what punishment was meted out to the employee by the DEP. Thus, there is no way to compare the incident to Edwards's termination.

  Plaintiff did not discuss either of these incidents with his supervisors. (Pl.'s Dep. 218:8-218:12.) Plaintiff also is not aware of whether black employees have been disciplined or fired by the DEP. (Pl.'s Dep. 218:13-218:17.) He has not discussed discipline with any of the other black employees with whom he worked. (Pl.'s Dep. 218:18-218:23.)


  At some point after January 3, 2003, Edwards filed a grievance with his union complaining about his termination, but for reasons not explained in the record, the union declined to pursue the grievance. As a result, on November 25, 2003, Edwards filed this action against the City and the union. (Pl.'s Compl.) Since Edwards failed to bring this action within four months after the union denied his request to bring a grievance, on February 19, 2004, Edwards voluntarily dismissed all claims against the union defendants. (Docket Sheet, Entry #9; December 1, 2005 Oral Argument; Def.'s Mem. of Law in Supp. 2.)

  After full discovery, the City now moves for summary judgment on all claims. The City raises three separate grounds for dismissal of Edwards's § 1981 claims: (1) Edwards has failed to make out a prima facie case of discrimination; (2) Even if Edwards meets the minimal showing required to make out a prima facie case, he has failed to present any evidence that the DEP's legitimate, non-discriminatory reason for terminating him was mere pretext; and (3) Edwards is unable to establish that his termination was pursuant to a municipal policy or custom, and therefore plaintiff cannot sue the City under § 1981. Defendant seeks to dismiss Edwards's due process claim on the ground that, as a provisional employee, Edwards had no protectible property right in his continued employment. Further, defendant argues, even if Edwards had a protectible property right, the DEP did not violate this right because an Article 78 proceeding in New York state court serves as a meaningful postdeprivation remedy. DISCUSSION


  Summary judgment is appropriate if "the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). An issue of fact is "material" when it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is "genuine" when the evidence permits a reasonable jury to find in favor of the nonmoving party. Id.

  The burden of demonstrating that no genuine issue of material fact exists falls on the party seeking summary judgment. Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). If the moving party establishes the absence of a genuine issue of material fact, "a limited burden of production shifts to the nonmovant, who must . . . come forward with `specific facts showing that there is a genuine issue for trial.'" Id. (quoting Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993)). If the nonmoving party fails to establish a genuine issue of material fact, summary judgment should be granted. Id.

  In determining whether a genuine issue of material fact exists, the Court must examine all evidence in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255; Make the Road by Walking, Inc. v. Turner, 378 F.3d 133, 142 (2d Cir. 2004); Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). "Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment." Jeffreys v. City of New York, No. 03-257, 426 F.3d 549, 553 (2d Cir. 2005) (quoting Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (internal quotations marks omitted)). Consequently, summary judgment on an issue of fact is not appropriate "if there is any evidence in the record that could reasonably support a jury's verdict for the nonmoving party." Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 254 (2d Cir. 2002) (emphasis added).

  Despite the Court's obligation to review all evidence in favor of the nonmoving party, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Jeffreys, 426 F.3d at 554 (quoting Anderson, 477 U.S. at 252). Mere "[c]onclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact." Niagara Mohawk Power Corp. v. Jones Chemical, Inc., 315 F.3d 171, 175 (2d Cir. 2003) (quoting Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998)). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), he "must offer some hard evidence showing that [his] version of the events is not wholly fanciful." D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998) (emphasis added).

  While plaintiff offers many allegations of discrimination, they are all conclusory. Plaintiff's papers are devoid of any concrete evidence establishing discrimination. For this reason, defendant's motion for summary judgment must be granted.


  Plaintiff sued the City the City of New York pursuant to § 1981, alleging that one of its agencies, the DEP, discriminated against him on the basis of race. Plaintiff did not sue any DEP employees in their individual capacity. Because plaintiff sued only the City of New York, a municipality, he must demonstrate, as a threshold showing, that any alleged violation of his constitutional rights occurred pursuant to a municipal "policy" or "custom." See Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658 (1978); accord Jeffes v. Barnes, 208 F.3d 49, 56 (2d Cir. 2000). Since plaintiff makes no such showing, the Court must dismiss his claims of discrimination against the City brought pursuant to 42 U.S.C. § 1981.

  In Monell v. New York City Department of Social Services, the Supreme Court held that "a municipality may not be held liable on a theory of respondent superior." 436 U.S. at 690-91. Therefore, a plaintiff seeking damages under § 1983 does not have recourse against a municipality unless the plaintiff can show that the violation of his constitutional rights was driven by the municipality itself, pursuant to a municipal "policy" or "custom." Id. at 691. The Supreme Court later extended this holding to apply to § 1981 claims. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989).

  Evidence of a single instance of unconstitutional conduct by an employee of the City does not establish a municipal "policy" or "custom". See Davis v. City of New York, 228 F. Supp. 2d 327, 336 (S.D.N.Y. 2002) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 831 (1985)). A municipal "policy" exists where: (1) the City has promulgated a formal rule advocating or supporting the contested conduct, or (2) "a single act is taken by a municipal employee who, as a matter of state law, has final policymaking authority in the area in which the action was taken." Davis, 228 F. Supp. 2d at 336-37 (quoting Monell, 436 U.S. at 690 and Pembaur v. City of Cinncinatti, 475 U.S. 469, 479-82 (1986)). A municipal "custom" exists, regardless of whether the practice received formal approval by the appropriate decision maker, where "the relevant practice is so widespread as to have the force of law." Brown, 520 U.S. at 404. "To succeed on this theory, plaintiff must prove the existence of a practice that is permanent." Davis, 228 F. Supp. 2d at 337.

  Plaintiff establishes neither a municipal policy nor a long-standing custom of discrimination by the City. In fact, in his opposition papers, plaintiff concedes that "there may not be a specific policy of the City defendant to discriminate[] against plaintiff and other black employee[s]." (Pl.'s Memo of Law 9). Instead, plaintiff urges the Court to break from settled precedent and find, in the absence of an officially promulgated policy or widespread pattern of similar conduct, that "it is enough to show the practice of the particular agency of the city resulted in violation of plaintiff's civil and constitutional rights." (Id.) While plaintiff does not expressly define "practice," he suggests that any proof of discrimination by DEP employees against plaintiff suffices to establish Monell liability. The case law does not support this proposition.

  The Court declines to adopt plaintiff's interpretation of Monell. Monell and its progeny clearly establish that plaintiff cannot sue the City of New York without proof of a city-sanctioned policy or custom of discrimination. This rule would be rendered sterile if, as plaintiff asserts, mere conclusory allegations of a few isolated incidents of discrimination against an individual plaintiff were sufficient to hold the municipality liable. Plaintiff provided no evidence from which a reasonable jury could infer the existence of an actionable municipal policy or custom of discrimination. Accordingly, plaintiff's § 1981 claims against the City of New York must be DISMISSED. Since plaintiff did not assert any claims against DEP employees in their individual capacities, no § 1981 claims remain.


  Notwithstanding plaintiff's complete inability to prevail under the Monell standard, since the parties devoted substantial space in their briefs to plaintiff's disparate treatment and hostile work environment claims, it is prudent to consider these claims in further detail. These claims are equally vulnerable and must be dismissed for the reasons set forth below.

  A. Establishing Discrimination Under 42 U.S.C. § 1981

  Section 1981 protects against discrimination on the basis of race or color. Choudhury v. Polytechnic Inst. of New York, 735 F.2d 38, 42 (2d Cir. 1984). The statute guarantees to all persons an equal right "to make and enforce contracts," 42 U.S.C. § 1981(a), which in 1991 was amended to include "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b). Therefore, a plaintiff alleging employment discrimination on the basis of race may bring a claim under § 1981 in addition to, or instead of, a claim for discrimination under Title VII, 42 U.S.C. § 2000e et seq.

  In McDonnell-Douglas Corp. v. Green, the Supreme Court established a three-step test governing `the order and allocation of proof' in discrimination cases. 411 U.S. 792, 800 (1973).*fn8 First, plaintiff must present facts sufficient to establish a prima facie case that he suffered from a discriminatory employment action on the basis of his race. Id. at 802. Plaintiff may establish his prima facie case "by either direct, statistical or circumstantial evidence." Bickerstaff v. Vassar College, 196 F.3d 435 (2d Cir. 1999). "The burden of establishing a prima facie case is not a heavy one. One might characterize it as minimal." Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000). If plaintiff meets this burden, a presumption of discrimination arises. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993).

  Once plaintiff establishes a prima facie case of discrimination, the burden shifts to defendant to rebut the presumption by providing a legitimate, nondiscriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 802; Dawson v. Bumble & Bumble, 398 F.3d 211, 216 (2d Cir. 2005). This Circuit has observed:

The defendant's burden of production also is not a demanding one; defendant need only offer such an explanation for the employment decision. Although the burden of production shifts to the defendant, the ultimate burden of persuasion remains always with plaintiff.
Bickerstaff v. Vassar Coll., 196 F.3d 435, 447 (2d Cir. 1999). If an employer articulates a nondiscriminatory reason for its conduct, the inference of discrimination raised by plaintiff's prima facie case "simply drops out of the picture." St. Mary's Honor Ctr., 509 U.S. at 511.

  Once defendant meets its burden of production, the burden shifts back to plaintiff to prove that the employer's nondiscriminatory explanation is pretextual. St. Mary's Honor Ctr., 509 U.S. at 507-08.

  As the Supreme Court established in Texas Department of Community Affairs v. Burdine, "when the employer has met its burden of production `the factual inquiry proceeds to a new level of specificity.'" St. Mary's Honor Ctr., 509 U.S. at 51 (quoting Burdine, 450 U.S. 248 (1981)). "[T]he inquiry now turns from the few generalized factors that establish a prima facie case to the specific proofs and rebuttals of discriminatory motivation the parties have introduced." Id. Plaintiff must provide enough evidence of pretext that a rational fact finder could conclude that the employer's "presumptively valid reasons" for its conduct "were in fact a coverup for a racially discriminatory decision." McDonnell Douglas, 411 U.S. 805. A plaintiff attempting to establish pretext "may not prevail by establishing only [falsity], but must prove, in addition, that a motivating reason was discrimination." Bickerstaff v. Vassar College, 196 F.3d 435, 447 (2d Cir. 1999) (internal quotation marks and citations omitted). "The plaintiff retains the burden of persuasion." St. Mary Honor Ctr., 509 U.S. at 518 (quoting Burdine, 450 U.S. at 256). If plaintiff does not meet this burden, plaintiff's discrimination claims must fail.

  While the presumption of discrimination "drops out of the picture" once defendant proffers a legitimate, nondiscriminatory explanation, the court "may still consider the evidence establishing plaintiff's prima facie case and the inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (internal quotation marks omitted). Other evidence that may be considered to establish, or rebut, a claim of pretext include "facts as to the [defendant's] treatment of [plaintiff] during his prior term of employment . . . and [defendant's] general policy and practice with respect to minority employment." McDonnell Douglas, 411 U.S. at 804-05. Consequently, the court must take a case-by-case approach, "with [the] court examining the entire record to determine whether the plaintiff could satisfy his `ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.'" Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (quoting Reeves v. Sanderson Plumbing Prods., 530 U.S. at 143 (internal quotation marks omitted)).

  B. Disparate Treatment

  1. Prima Facie Case

  This Circuit has stated that "[i]n disparate treatment claims involving the discharge of an employee, . . . plaintiff must show that he or she: (1) was a member of a protected class; (2) was qualified for the position; (3) was discharged; and (4) the discharge occurred in circumstances giving rise to an inference of discrimination." Rosen v. Thornburgh, 928 F.2d 528, 532 (2d Cir. 1991) (citing McDonnell Douglas, 411 U.S. at 802).

  First and Third Prongs

  As an African American, plaintiff is clearly a member of a protected class. It is undisputed that plaintiff was discharged from his employment with the DEP as of January 3, 2003. Thus, plaintiff meets the first and third prongs of the McDonnell Douglas test without the need for further analysis.

  Second Prong

  Plaintiff's temperament was not well suited for the job of Air Pollution Inspector with DEP. There is compelling evidence that plaintiff got angry at supervisors, colleagues, and the public, and lost his temper on multiple occasions. Given that Air Pollution Inspectors are required to interact with the public, particularly in the high-stress environment of writing code violations, the ability to remain calm, and not erupt into tantrums or exhibit defensive behavior under stress, may be considered a qualification for this position. In this sense, plaintiff has not established that he is qualified for the position.

  Regardless, Edwards's educational background and prior performance evaluations do show that Edwards possessed the basic skills to qualify for the position. See, e.g., Richardson v. Newburgh Enlarged City Sch. Dist., 984 F. Supp. 735, 742-43 (S.D.N.Y. 1997) (declining to find that plaintiff failed to prove that she was qualified for the position, where plaintiff's prior evaluations showed satisfactory performance, even though defendant also proffered evidence of unsatisfactory performance); Melnyk v. Adria Labs., 799 F. Supp. 301, 313 (W.D.N.Y. 1992) (same). This Circuit has explained that "[i]n determining whether an employee's job performance is satisfactory, courts may . . . rely on the evaluations rendered by supervisors." Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir. 1985). Edwards has a Bachelor's Degree in Environmental Science, is a Certified Environmental Specialist, and successfully completed two years as a Provisional Junior Engineering Work Study Trainee with the DEP before being promoted. In addition, plaintiff's direct supervisor, Senior Inspector Joe DiLeo, gave him a satisfactory performance evaluation on December 31, 2001. In that evaluation, Mr. DiLeo states that plaintiff has "distinguished himself from his fellow inspectors," and gives him "very good" ratings in every category. Based on this review, Mr. DiLeo recommended that plaintiff be retained in his present title. These facts are sufficient to establish that Edwards was qualified for his position, notwithstanding serious questions concerning temperament and personality.

  Fourth Prong

  Plaintiff's prima facie case hinges on whether plaintiff has proffered sufficient evidence to establish that the DEP discharged him under circumstances giving rise to an inference of discrimination. A plaintiff may establish an inference of discrimination by showing (1) that the employer retained a similarly situated white employee who engaged in similar conduct or (2) that the employer treated plaintiff differently from other similarly situated white employees. See McDonnell Douglas, 411 U.S. 804; Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997); Richardson v. Newburgh Enlarged City School District, 984 F. Supp. 735, 742 (S.D.N.Y. 1997). Viewing all evidence in the light most favorable to plaintiff, the Court is convinced that plaintiff establishes neither.

  Plaintiff seeks to establish an inference of discrimination by alleging that nine years earlier the DEP retained a white DEP employee for more egregious conduct than the conduct for which plaintiff was terminated. To support this allegation, Plaintiff tells of Mr. Astrosky, a white DEP inspector, who was involved in a hit-and-run accident under the influence of alcohol and cocaine. Plaintiff alleges that the DEP retained Mr. Astrosky after this incident, a fact which plaintiff believes is proof that plaintiff's discharge nine years later was motivated by racial animus.

  The problem with plaintiff's theory is that he supplies no admissible evidence to support it. Plaintiff claims that he heard about the Astrosky incident from another inspector. He admits that does not know Mr. Astrosky nor has he ever spoken to him about the incident. Plaintiff does not offer an accident report, employment file, witness affidavit, or any other admissible evidence to prove that Mr. Astrosky was, in fact, retained by the DEP after the incident. While plaintiff alludes in his deposition to other incidents in which white inspectors were retained by the DEP after violations of DEP policy, he provides no specifics from which the Court could infer that these incidents are anything more than gossip. Plaintiff cannot create a genuine issue of fact solely by citing to his own deposition testimony. Such bare, unsubstantiated allegations, which are not admissible at trial, do not establish a prima facie case of discrimination.

  Plaintiff also attempts to prove that his discharge was discriminatory by alleging that during the course of his employment he was treated differently than similarly situated white inspectors, particularly with regard to overtime opportunities and the voiding of violations. Again, plaintiff offers no evidence to support these allegations. Plaintiff's only "proof" of disparate treatment with regard to violations is his own testimony that he spoke with three Caucasian inspectors with whom he worked, all of whom stated that their violations were not scrutinized or voided as frequently as plaintiff's. None of these three inspectors submitted affidavits supporting plaintiff's testimony. Plaintiff admits that he did not speak with the other Caucasian inspectors with whom he worked about whether their violations were ever criticized or voided, nor did he ask other African-American inspectors if their violations were ever reviewed or voided by supervisory staff.

  Similarly, plaintiff's relies solely on his own testimony to prove that he was bumped off overtime assignments more than white employees. Despite plaintiff's testimony, this conclusory allegation is belied by the evidence. A copy of an overtime assignment list for November 2001 affirmatively establishes that non-African American inspectors were also bumped off overtime lists. Edwards, himself, even admits that at least one white inspector was bumped off the same list from which plaintiff was removed. By plaintiff's own subsequent admission, it is undisputed that plaintiff was offered, and accepted, other overtime opportunities, including November overtime through the M.A.R.C.H. program and assignment on "horn honking detail." In addition, a DEP personnel document clearly establishes that the highest overtime hours for the 2001 calendar year were logged by an African-American inspector, raising substantial doubt that any denial of overtime by the DEP was driven by racial animus.

  Plaintiff's failure to file a claim with the DEP's Office of Equal Employment Opportunity further undermines plaintiff's claim that, throughout his employment, he was discriminated against on the basis of race. At no time prior to the filing of this action did plaintiff complain of race discrimination. In fact, plaintiff showed such little concern for racial discrimination while employed with the DEP, he never thought to discuss the matter with other African-American inspectors. Furthermore, plaintiff fails to explain why, if the DEP was-as he alleges-biased against African-American inspectors, there were so many other African-American inspectors employed by the DEP. (See Pl.'s Dep. 131:5-131:6 (naming five other black Air Pollution Inspectors)).

  In sum, plaintiff asks this Court to find, merely from his own scant and conclusory testimony, that plaintiff's termination arose under circumstances giving rise to an inference of discrimination. (See Pl.'s Memo of Law in Opp'n 3-9 (arguing extensively that the bare allegations contained in plaintiff's own deposition testimony are sufficient to create genuine issues of fact as to the reason for plaintiff's termination)). This the Court declines to do so. Simply because (1) supervisors scrutinized plaintiff's violations and recommended his termination, and (2) plaintiff is African American, does not impel the conclusion that (3) these supervisors discriminated against plaintiff because he is African American. "This is the type of groundless speculation that summary judgment is designed to root out." Richardson, 984 F. Supp. at 744. Plaintiff has not met the evidentiary burden required to establish a prima facie case of race discrimination with regards to his termination.

  2. Legitimate, Nondiscriminatory Reason and Pretext

  Even assuming arguendo that plaintiff's bare allegations suffice to establish a prima facie case,*fn9 plaintiff still could not prevail on his disparate treatment claim. Defendant has proffered ample evidence to establish that plaintiff was terminated due to insubordinate and unprofessional conduct. Plaintiff himself admits that he confronted his direct supervisor about his "tone of voice" in front of other people, and the next day expressed an unwillingness to comply with a department decision to remove American flags from city-owned vehicles. He also does not contest that he drove a city vehicle with a suspended license, was pulled over by police on two separate occasions for traffic violations-at least one of which occurred while he was driving a DEP vehicle. Further, defendant provides documents from CUNY public safety officers and an ALJ presiding over an ECB hearing, all of whom are disinterested third parties, attesting to plaintiff's volatile temper. Plaintiff claims these incidents are insignificant, but they have nothing to do with race and they clearly support the defendant's explanation: that plaintiff was fired as a result of his own misconduct. Insubordinate and unprofessional conduct is a legitimate, non-discriminatory reason for terminating an employee. Thus, defendant has met its burden of producing a legitimate, non-discriminatory explanation for its termination of plaintiff, which rebuts plaintiff's prima facie case.

  The burden of establishing pretext is a higher burden than that required to establish the prima facie case, because at this stage plaintiff is without the benefit of any presumptions. At this stage, plaintiff's "initially vague allegation of discrimination" must be "increasingly sharpened and focused." Meiri, 759 F.2d at 995. As previously explained in the context of plaintiff's prima facie case, plaintiff has not provided any evidence, other than his own wholly unsubstantiated testimony, to establish that racial discrimination motivated defendant's decision to terminate plaintiff from his job as a Air Pollution Inspector. If anything, the record reflects that plaintiff did, in fact, display the unprofessional and insubordinate conduct of which defendant complaints, and that, as a result of this conduct, plaintiff and his supervisor, Ray Montalvo, had a strained working relationship. Eventually, Mr. Montalvo's dissatisfaction with plaintiff's continuing, inappropriate conduct led Mr. Montalvo to recommend plaintiff's termination. This is not a personality conflict, though even if it were, it would not establish a § 1981 claim or rebut defendant's legitimate, nondiscriminatory explanation for its conduct. See, e.g., Regis v. Metro. Jewish Geriatric Ctr., 2000 WL 264336, at *9 (E.D.N.Y. Jan. 11, 2000) (granting summary judgment to employer where the evidence established that a poor working relationship between plaintiff and her supervisor, but did not establish that this feud, or the resulting termination, was the result discriminatory animus); Ticali v. Roman Catholic Archdiocese of Brooklyn, 41 F. Supp. 2d 249, 263 (E.D.N.Y. 1999) (same). Plaintiff carries the burden of persuading a reasonable jury that the dispute between plaintiff and his supervisor was driven by discriminatory animus.*fn10 See St. Mary's Honor Ctr., 509 U.S. at 518 ("[Plaintiff] must . . . demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a coverup for a racially discriminatory decision." (quoting McDonnell Douglas, 411 U.S. at 805). The evidence presented does not support such a finding.

  Plaintiff appears to suggest that his status as an African American, coupled with his own conclusory allegations of discrimination, is sufficient for a reasonable jury to infer that defendant's proffered explanation is pretextual.*fn11 If this were true, summary judgment in discrimination cases would be rendered sterile, and all plaintiffs alleging violations of the civil rights laws would be entitled to a trial. "Given the ease with which these suits may be brought and the energy and expense required to defend such actions," the Court refuses to believe that this is what Congress intended. Meiri, 759 F.2d at 998.

   On the record presented, the Court finds that no reasonable jury would "undertake the suspension of disbelief necessary to credit the allegations made in [plaintiff's] complaint." Jeffreys v. City of New York, 426 F.3d at 551 (2d Cir. Oct. 17, 2005). Since plaintiff failed to meet his burden of persuasion, and the Court finds that there are no genuine issues of material fact as to whether defendant terminated plaintiff on the basis of his race, plaintiff's § 1981 claim for disparate treatment is dismissed.

   C. Hostile Work Environment

   To establish a prima facie case of hostile work environment, plaintiff must demonstrate that: (1) his workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of his work environment, and (2) a specific basis exists for imputing the conduct that created the hostile work environment to the employer. Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (quoting Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996) (internal quotation marks omitted)). "The plaintiff must show that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of [his] employment were thereby altered." Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002). The conduct alleged must be sufficiently severe and pervasive "to create an environment that `would be perceived, and is perceived, as hostile or abusive.'" Schwapp, 118 F.3d at 110 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993)). "As a general rule, incidents must be more than `episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.' Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness." Alfano, 294 F.3d at 374 (internal citations omitted). The inquiry is fact-specific and must be determined on a case-by-case basis. Schwapp, 118 F.3d at 110. Plaintiff offers as evidence of a hostile work environment the same evidence that he offers to prove disparate treatment, particularly that his supervisors criticized and voided his violations more frequently than others and denied him overtime opportunities that were afforded to white employees. But, there is no concrete factual evidence from which a reasonable fact finder could infer that this conduct, even if severe and pervasive enough to alter the conditions of plaintiff's work environment, was racially motivated. Plaintiff offers no examples of racist comments, slurs, or jokes uttered by any of his supervisors or fellow inspectors. Nor does plaintiff proffer evidence that non-African American inspectors were treated differently or that other African-American inspectors faced similarly inequitable treatment. Plaintiff cannot prevail on a claim of racially hostile work environment without presenting even a scintilla of evidence to support this claim.

   Even if there were some evidence of racial enmity, and there is none, it would still fall well short of meeting the applicable standard. Whether certain comments or conduct created a hostile work environment depends upon "the quantity, frequently, and severity" of the conduct. Id. at 111 (internal quotation marks omitted). To amount to a hostile work environment, plaintiff must have suffered "a steady barrage of opprobrious" conduct by his employer, not merely sporadic instances of undesirable conduct. Id. at 110. Plaintiff admits in his deposition that it is standard practice for senior inspectors to review violations written by junior inspectors. Thus, review of plaintiff's violations by senior staff can hardly be considered inappropriate or opprobrious conduct. Regardless, plaintiff remembers only "six or five or four" instances in which his violations were voided by superiors, and a few additional instances in which his violation-writing skills were criticized. A few instances of criticism do not rise to the level of frequency required to establish a hostile work environment claim.

   The same infirmities plague plaintiff's claim that his supervisors denied him overtime opportunities. Overtime opportunities within the DEP are limited, and assigning supervisors cannot accommodate every employee that desires overtime within a given month. As a result, the DEP regularly bumped inspectors, both black and white, from overtime lists. The evidence clearly establishes that plaintiff was not the only inspector denied overtime and that plaintiff was given overtime opportunities on other occasions. Moreover, plaintiff was able to establish only one occasion in which he was bumped off an overtime list. This solitary denial neither constitutes unlawful or objectionable conduct nor rises to the level of pervasiveness required to establish a claim of hostile work environment.

   The current record cannot sustain a claim of hostile work environment, as plaintiff does not lay any factual foundation from which a reasonable juror could find that plaintiff suffered a racially hostile work environment during his employment at the DEP. Accordingly, the Court grants summary judgment to defendant on this claim.


   Plaintiff also brings a claim pursuant to 42 U.S.C. § 1983, alleging that the DEP's failure to provide plaintiff with a disciplinary hearing prior to his termination violated plaintiff's Fourteenth Amendment right to due process. But Fourteenth Amendment due process applies only where the plaintiff has an identifiable liberty or property interest. U.S. Const., amend. XIV; Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569 (1972). "When protected interests are implicated, the right to some kind of prior hearing is paramount." Roth, 408 U.S. at 569. But the range of protected interests is bounded, and an interest in one's continued employment is protected by the Fourteenth Amendment only in limited circumstances. Id.

   In Roth, the Supreme Court held that continued employment with a public entity is not a liberty interest protected by the Fourteenth Amendment, but may be a protected property interest if the plaintiff "had already acquired [interests] in specific benefits." Id. at 576. For example, the Court has held that a public college professor dismissed from a tenured position and public employees dismissed while under contract both have interests in continued employment that are safeguarded by the Fourteenth Amendment. See id. at 576-77 (citing Slochower v. Bd. of Educ., 350 U.S. 551 (1956) and Wieman v. Updegraff, 344 U.S. 183 (1952)); see also Connell v. Higginbotham, 403 US 207, 208 (1971) (holding that a teaching recently hired without tenure or a formal contact, but with a clearly implied promise of continued employment, was entitled to a pre-deprivation hearing before being terminated). But a public employee without tenure, a formal contract, or any other promise — express or implied — of continued employment is not protected by the Fourteenth Amendment. The mere fact that plaintiff worked for a city agency is not sufficient to create a Fourteenth Amendment due process right protectible through a § 1983 action.

   A. Provisional Employment and Property Rights in Employment

   Plaintiff was a provisional employee, and therefore had no expectation of continued employment with the DEP. The New York Court of Appeals has expressly stated, in the context of Article 78 proceedings seeking reinstatement by terminated state employees, that "provisional employees have no expectation of tenure and rights attendant thereto . . . and therefore may be terminated at any time without charges preferred, a statement of reasons given or a hearing held." Preddice v. Callanan, 69 N.Y.2d 812, 813 (1987) (internal citations omitted); accord Mansell v. City of New York, 304 A.D.2d 381, 381 (1st Dep't 2003). Similarly, this Circuit has stated that "[t]he threshold issue is always whether plaintiff has a property or liberty interest protected by the Constitution." Narumanchi v. Bd. of Trustees of Connecticut State Univ., 850 F.2d 70, 72 (2d Cir. 1988). Only "if a protected interest is identified" must the Court consider whether the defendant deprived the plaintiff of that interest without due process of law. Id. As a provisional employee, plaintiff had no expectation of tenure, no formal contract outlining the dates of his employment, and no clearly implied promise of continued employment. See Roth, 408 U.S. at 576-77. Accordingly, he identified no property interest protectible under the Fourteenth Amendment, and the Court does not need to engage the question of whether the City deprived plaintiff of procedural due process by terminating him without a formal disciplinary hearing.

   Plaintiff counters that, even as a provisional employee, the grievance procedure set forth in his collective bargaining agreement created a protectible property right. This is a gross misstatement of the law. It is true that under the collective bargaining agreement covering civil service employees in scientific or technical positions, a provisional employee "who has served for two years in the same or similar title or related occupational group in the same agency" is entitled to a grievance procedure that includes a conference between the agency and the employee and, potentially, an arbitration.*fn12 But violation of the grievance procedure set forth in a collective bargaining agreement is not a constitutional tort, and therefore does not give rise to a claim under the Fourteenth Amendment. While private contracts and collective bargaining agreements may create for an employee a right to a pre-termination hearing not automatically provided as a matter of law, these privately created rights are "neither constitutional nor statutory." See Swartz v. Bd. of Educ., 146 A.D.2d 576, 577 (2d Dep't 1989) (stating that a public school teacher's right to termination review, created by a collective bargaining agreement, was "neither constitutional nor statutory"); accord Corredor v. United Fed'n of Teachers, 162 F.3d 1147, No. 97-7488, 1998 WL 639403, at **1 (2d Cir. Apr. 6, 1998); Frasier v. Bd. of Educ., 71 N.Y.2d 763, 767 (1988). Plaintiff's collective bargaining agreement merely sets forth the a contractually agreed-upon procedure for grievances by employees. It does not create a procedural due process right, the violation of which is actionable under § 1983.

   B. Postdeprivation Remedy — The Article 78 Proceeding

   Even if plaintiff's collective bargaining agreement did create a Fourteenth Amendment property right, and the DEP violated that procedure by failing to follow the grievance procedure upon plaintiff's termination, plaintiff would not prevail. "[T]he Due Process Clause of the Fourteenth Amendment is not violated when a state employee intentionally deprives an individual of property or liberty, so long as the State provides a meaningful postdeprivation remedy." Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir. 1996). This Circuit has also held that "an Article 78 proceeding is a perfectly adequate postdeprivation remedy," because it provides a hearing and a means of redress for the petitioner and permits constitutional issues to be decided in the proceeding. Id. at 881. A terminated state or city employee may bring an Article 78 proceeding in New York state court to compel his reinstatement. See, e.g., Moccio v. New York State Office of Court Admin., 95 F.3d 195, 197-98 (2d Cir. 1996) (using Article 78 proceeding to challenge plaintiff's termination from New York State Office of Court Administration); Swartz, 146 A.D.2d at 576 (reviewing Article 78 proceeding in the context of probationary teacher's termination by Board of Education Chancellor); Frasier, 71 N.Y.2d at 765 (same); Preddice, 69 N.Y.2d at 813 (using Article 78 proceeding to seek reinstatement to position as provisional employee with the State Division of Probation). Since this adequate postdeprivation remedy was readily available to plaintiff, no other predeprivation process was required in order to satisfy the Due Process Clause of the Fourteenth Amendment. Consequently, plaintiff's § 1983 claim, which alleges violation of the Fourteenth Amendment as a result of the defendant's failure to give plaintiff a full disciplinary hearing prior to his termination, is denied.


   In applying New York Executive Law § 296 to discrimination cases, both New York state and federal courts have looked to federal cases interpreting federal discrimination statutes for guidance. See Melnyk v. Adria Labs., 799 F. Supp. 301, 312 (S.D.N.Y. 1992) (citing Mastrangelo v. Kidder, Peabody and Co., 722 F. Supp. 1126 (S.D.N.Y. 1989)). Accordingly, the same McDonnell Douglas three-part, burden-shifting test applies to a claim of discrimination under New York law as under federal law. See Laverack & Haines, Inc. v. State Div. Human Rights, 88 N.Y.2d 734, 739 (1996) (citing McDonnell Douglas as establishing the applicable standard for an action under New York Executive Law § 296); Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 939 (1985) (same). It follows that for the same reasons that plaintiff fails to establish a claim for disparate treatment or hostile work environment under 42 U.S.C. § 1981, plaintiff's fails to establish a claim for race discrimination under the New York Executive Law.*fn13

   CONCLUSION In sum, plaintiff has failed to establish that there was a City sanctioned policy or custom of discrimination. Further, analysis of plaintiff's discrimination claims reveals that plaintiff fails to proffer sufficient evidence from which a reasonable jury could find that plaintiff was terminated, or otherwise discriminated against, on account of his race under applicable federal and New York statutes. Plaintiff has also failed to establish that the DEP's decision to terminate plaintiff without an administrative hearing violated plaintiff's Fourteenth Amendment right to due process.

   Since there are no genuine issues of material fact that must be presented to a jury, defendant's motion for summary judgment is GRANTED in full. The Clerk of the Court is directed to enter judgment and close out this file.


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