The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge
Alonso Myers brings this employment discrimination action pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12111, et seq. (the "ADA"), and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"). He alleges that his employer, the New York City Human Rights Commission (the "Commission"), discriminated against him on the basis of disability and race. The defendant now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The parties have consented to referral of this case to me for all purposes, including determination of dispositive motions, pursuant to 28 U.S.C. § 636(c). For the reasons that follow, the defendant's motion is granted.
Alonso Myers is an African American and Native American man employed by the Law Enforcement Bureau of the Commission. (Complaint submitted to the Equal Employment Opportunity Commission ("EEOC Complaint") dated July 9, 2003, attached as Exhibit A to Declaration of Amy Rothschild ("Rothschild Decl.") dated August 15, 2005; Defendant's Statement Pursuant to Local Rule 56.1 ("Def. 56.1 Statement"), ¶ 3). Mr. Myers has held his current position as a Human Rights Specialist since August 8, 1994. (Def. 56.1 Statement, ¶ 3). In this capacity, he evaluates formal discrimination complaints filed by members of the public, and the evaluation process often requires him to meet with the complainants. (Def. 56.1 Statement, ¶ 4).
A. Conflicts with a Co-Worker and the Subsequent Relocation
Mr. Myers has a history of conflicts with a co-worker, Ms. Sol Rivera. The plaintiff complained to the Commission that in February or March 2002 Ms. Rivera pushed her way past him when he unlocked a door to the Commission's offices. (Def. 56.1 Statement, ¶ 7; Affidavit of Alonso Myers dated Sept. 27, 2005 ("Myers Aff."), ¶ 5). On April 16, 2002, the plaintiff and Ms. Rivera had an altercation involving physical contact. (Def. Exh. F;*fn1 Declaration of Clifford Mulqueen, Deputy Commissioner for investigations and General Counsel for the Commission ("Mulqueen Decl."), ¶ 6). The plaintiff alleges that on this occasion he heard someone mumbling behind him as he was walking down the hallway, and, when he turned around, Ms. Rivera pushed him out of the way and declared that he was behaving rudely. (Def. 56.1 Statement ¶¶ 6-7; Def. Exh. F; Myers Aff., ¶ 5). The Commission reports that, according to Ms. Rivera, the plaintiff deliberately struck her without provocation as she was passing him in the hall. (Mulqueen Decl., ¶ 7).
On April 17, 2002, Deputy Commissioner Clifford Mulqueen spoke with Mr. Myers about the incident of the previous day. (Myers Aff., ¶ 5). According to the plaintiff, Mr. Mulqueen asked if the two co-workers had "ha[d] words," and the plaintiff responded in the negative. (Myers Aff., ¶ 6). Mr. Mulqueen then instructed the plaintiff to move from his workspace on the ninth floor to the tenth floor. (Myers Aff., ¶ 6; Mulqueen Decl., ¶ 8). The plaintiff alleges he was then prevented from meeting with complainants until October 2002.*fn2 (Myers Aff., ¶ 3). The Commission does not deny that Mr. Mulqueen directed Mr. Myers to move to the tenth floor. (Mulqueen Decl., ¶ 8). It maintains that the purpose of this relocation was to separate him from Ms. Rivera. (Mulqueen Decl., ¶ 9).
Based on a complaint by Ms. Rivera regarding the incident of April 16, 2002, the Commission brought a charge of misconduct against the plaintiff the next day and notified him that an informal conference would be held. (Def. Exh. D). On April 18, Mr. Myers served his answer, in which he alleged that the Commission exhibited a failure "to obtain facts, and to have such facts objectively weighed," but he made no allegations of racial bias against the Commission. (Def. Exh. E). The plaintiff attended the April 26, 2002, informal conference and was represented by a union official. (Def. Exh. G). On May 13, 2002, the Informal Conference Leader issued a decision, finding the charges unsubstantiated:
The fact that you were wearing an earplug on the day in question greatly undercuts the allegations. While there appears [sic] to be some issues between you and Ms. Rivera, the conference did not reveal any evidence to support the allegations stated in the Charges. It appears that there is a definite misunderstanding of what occurred. Given the events of the day, Ms. Rivera's emotional state and your impaired hearing ability, the physical contact between Ms. Rivera and yourself appears to have been accidental. (Def. Exh. G). Although the formal charges were dismissed, the Commission required the plaintiff to remain at his tenth floor workstation until October 30, 2003 ((Myers Aff., ¶ 20), when Ms. Rivera indicated that her problems with him had been resolved. (Mulqueen Decl., ¶ 14). The Commission maintains that until that time Ms. Rivera continued to feel intimidated by Mr. Myers and that it made the decision to keep him on the tenth floor to avoid further disruption. (Mulqueen Decl., ¶¶ 17-18).*fn3 In fact, the plaintiff did experience additional difficulties with Ms. Rivera after the April 16, 2002, incident, but the details are not directly relevant to this matter.*fn4
B. The Dark Glasses and the Subsequent Suspension
In March 2003, Mr. Myers began wearing dark, tinted glasses to work and to his interviews with members of the public. (Def. 56.1 Statement, ¶ 20). Although there is no evidence of complaints by the individuals who met with the plaintiff, the Commission informed him that it was inappropriate to wear the dark glasses during interviews and that, to continue doing so, he would be required to provide documentation showing medical necessity. (Def. Exh. M-1). The plaintiff responded that his tinted glasses reduced the harsh glare from the overhead lights and computer monitor, and he provided a doctor's note stating, "Mr. Myers may wear his tinted glasses in the office for medical reasons." (Def. Exhs. M-2, M-3). The Commission informed the plaintiff that this note was insufficient because it failed to explain the medical necessity for the glasses. (Def. Exhs. M-1, M-4, M-7; Mulqueen Decl., ¶ 17). The Commission directed the plaintiff not to wear the glasses at work until he provided sufficient medical documentation, but he nevertheless continued wearing them. (Def. Exhs. M-5, M-6, M-7, M-9).
On June 10, 2003, the plaintiff submitted a request for leave to attend a medical appointment that day, and he left before determining if his request had been granted. (Def. Exh. O at 2; Mulqueen Decl., ¶ 18). The request was subsequently denied because it did not comply with the Commission's 24-hour notice requirement for scheduled absences. (Def. Exh. J; Mulqueen Decl., ¶ 18). Mr. Myers arrived late to work on June 11, 12, and 13, 2003. (Def. Exh. L at 2). On June 26, 2003, he again requested leave without providing the required 24-hour notice and again left without obtaining prior approval. (Def. Exh. O at 3-4). The plaintiff's July 2, 2003, request for leave on July 7 and 8, 2003 was granted. (Myers Aff., ¶ 14; Mulqueen Decl., ¶ 19). The Commission claims that this request was granted only with the caveat that Mr. Myers attend a disciplinary meeting on July 8, 2003. (Mulqueen Decl., ¶ 19). The plaintiff asserts that he had no knowledge of this proviso (Myers Aff., ¶ 14), and no documentary evidence of such a condition has been submitted to the Court. The plaintiff did not attend the disciplinary meeting. (Def. 56.1 Statement, ¶ 31).
On July 9, 2003, the Commission served the plaintiff with notice of an informal conference on July 22, 2003, and suspended him without pay for 30 days. (Def. Exh. K; Myers Aff., ¶ 15; Mulqueen Decl., ¶ 20). When Mr. Mulqueen attempted to serve Mr. Myers with the formal charges and suspension notice, Mr. Mulqueen and Mr. Myers had a confrontation. (Myers Aff., ¶ 15; Mulqueen Decl., ¶ 21). Mr. Mulqueen alleges that the plaintiff ignored him, refused to hang up the telephone despite a request to do so, and "moved within inches of [him] in an attempt to intimidate and physically menace [him]." (Mulqueen Decl., ¶ 21). He admits that the plaintiff eventually complied with his request to step back but alleges that the plaintiff refused to accept the documents. (Mulqueen Decl., ¶ 21). Mr. Myers contests this characterization of the events, claiming that Mr. Mulqueen physically blocked his way and shouted, "That's it, you're out of here!". (Myers Aff., ¶ 15).*fn5
The plaintiff appeared at the July 22, 2003, informal conference and was represented by an attorney and union officials. (Def. Exh. L). He was charged with misconduct consisting of (1) continuing to wear dark glasses in the office and with members of the public without providing medical documentation of the need to do so, and without offering any explanation for the failure to provide appropriate medical documentation; (2) failing to provide the requisite 24-hour notice for leave taken on June 10 and 26, 2003; (3) taking leave on July 7 and 8, 2003, but failing to report to the July 8, 2003, disciplinary meeting; and (4) behaving in an intimidating and disrespectful manner towards Mr. Mulqueen at the time of service of the charges. (Def. Exhs. K, L). On July 28, 2003, the Hearing Officer issued a recommendation that the plaintiff be suspended without pay for 30 days, stating that the charges "taken together constitute a pattern of willful insubordination." (Def. Exh. L at 3).
The plaintiff returned to work on August 15, 2003. On August 27, he submitted a memorandum formally requesting the reasonable accommodation of wearing tinted glasses, along with an optometrist's letter recommending he wear the glasses on the basis that an August 2, 2003, eye exam "revealed mild evidence that might associate with his complaint of light sensitivity." (Def. Exh. N at 1, 2; Myers Aff., ¶ 19). On September 9, 2003, the Commission granted this request. (Def. Exh. N at 3).
The plaintiff filed a complaint with the United States Equal Employment Opportunity Commission (the "EEOC") in the fall of 2003, and he received a right-to-sue letter on October 24, 2003. (Def. Exhs. A, B; Rothschild Decl., ¶ 3). Mr. Myers was returned to a workspace on the ninth floor on October 30, 2003. (Def. Exh. C at 4; Myers Aff., ¶ 20). On November 8, 2003, the plaintiff's supervisor completed a written evaluation of his performance during the period of October 18, 2002, through October 18, 2003, giving the plaintiff an "overall rating" of "very good" and making no mention of any of the problems described above. (Def. Exh. P at 21-26).
Mr. Myers alleges that the Commission made decisions concerning his employment on the basis of disability and race. He asserts that he suffers from acute light sensitivity, which substantially limits his ability to see, and that the Commission's refusal to permit him to wear tinted glasses in the workplace prior to September 2003 constituted a failure to provide a reasonable accommodation. He further alleges that the Commission suspended him for 30 days in retaliation for wearing the dark glasses that aided his sight. The Commission responds that Mr. Myers is not disabled, as he is virtually unimpaired when he wears his dark glasses, and, with respect to the retaliation claim, wearing the glasses is not statutorily-protected activity. The Commission is correct on both counts.
Mr. Myers also raises three race discrimination claims.
First, he challenges his relocation to the tenth floor, arguing that it constituted disparate treatment on the basis of race. Second, he asserts that the Commission required him to remain in that location in retaliation for his participation in the April 2002 informal conference concerning his altercation with Ms. Rivera. Finally, the plaintiff claims that the Commission maintained a racially hostile work environment.
In response, the Commission explains that it ordered Mr. Myers to move his workstation to the tenth floor to separate him from Ms. Rivera, with whom he had experienced conflicts, and that certain aspects of Ms. Rivera's job responsibilities would have made relocating her a more costly proposition. The Commission also argues that participation in a disciplinary proceeding is not included within the definition of statutorily-protected activity under Title VII. Finally, the Commission maintains that the record reflects no evidence of a racially hostile work environment. Again, the Commission is entitled to summary judgment.
A. Standard for Summary Judgment Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "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); see also Marvel Characters, Inc. v. Simon, 310 F.3d 280, 285-86 (2d Cir. 2002). The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Where the moving party meets that burden, the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute concerning material facts. Fed. R. Civ. P. 56(c); Anderson, 477 U.S. at 249. In assessing the record to determine whether there is a genuine issue of a material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson, 477 U.S. at 255 (citing Adickes v. S. H. Press & Co., 398 U.S. 144, 158-59 (1970)).
Special caution should be exercised when granting summary judgment in employment discrimination cases: [W]hen deciding whether this drastic provisional remedy should be granted in a discrimination case, additional considerations should be taken into account. A trial court must be cautious about granting summary judgment to an employer when, as here, its intent is at issue. Because writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer's corporate papers, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination. Finally, the trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.
Gallo v. Prudential Residential Services, L.P., 22 F.3d 1219, 1224 (2d Cir. 1994) (internal citations omitted). Thus, where the non-movant bears the ultimate burden to prove that the defendant discriminated, he may defeat the summary judgment motion by producing sufficient specific facts to establish that there is a genuine issue of material fact for ...