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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 ...

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