The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiff Manuel Howe ("Plaintiff") brought the present action against Defendants Town of Hempstead andTown of Hempstead Department of General Services (hereinafter, jointly "Town Defendants"); and Defendants Tom Dauscher ("Dauscher"), in his official and individual capacity; Louis Esposito ("Esposito") in his official and individual capacity; and Amato Biancaniello*fn1 ("Biancaniello") in his individual and official capacity (hereinafter collectively "Individual Defendants") for violations of 42 U.S.C. § 1981 for disparate treatment and failure to promote (see Compl. ¶¶ 88-92); 42 U.S.C. § 1983 for failure to promote (see Compl. ¶¶ 93-97); 42 U.S.C. § 1983 for "Fourteenth Amendment and Conspiracy" (see Compl. ¶¶ 98-111); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e for employment discrimination (see Compl. ¶¶ 117-120); the New York State Human Rights Law ("NYSHRL") § 296 (see Compl. ¶¶ 112-116); 42 U.S.C. § 1986 for conspiracy (see Compl. ¶¶ 121-123); and New York Civil Rights Law ("NYCRL") § 40-c for employment discrimination (see Compl. ¶¶ 124-126). Plaintiff seeks $7,000,000 in compensatory damages, punitive damages, and attorney's fees. Town Defendants and Individual Defendants moved separately for summary judgment. Plaintiff opposes each motion. For the reasons set forth herein, the Town Defendants' motion for summary judgment is GRANTED in part and DENIED in part and the Individual Defendants' motion for summary judgment is GRANTED.
The following facts are drawn from the parties' Local 56.1 statements, and the parties' submissions. The facts are undisputed unless otherwise noted.
Plaintiff is an African-American employee of the Town of Hempstead, Department of General Services. The Town of Hempstead is a New York municipality. The Town of Hempstead Department of General Services is a municipal division of the Town of Hempstead.
Defendant Dauscher is the Deputy Commissioner of the Department of General Services. Defendant Esposito is a supervisor within the Department of General Services. Defendant Biancaniello is also a supervisor within the Department of General Services. Neither Esposito, Biancaniello or Dauscher has the authority to hire, fire or promote Howe. According to the testimony, there is no set procedure in the Town for the progression of titles. See Daushcer Dep. at p. 40. Dauscher, as Deputy Commissioner, can recommend promotions through Personnel Action Requests which are sent to Human Resources. Human Resources then undertakes to determine whether money exists for the promotion, the needs of the particular department and whether the individual is qualified for the position. Enright Dep. at pp 21 to 40.
Plaintiff was initially hired as a summer employee in June 1989. In September 1989, he left the position to return to high school. After his high school graduation, Plaintiff recommenced his employment with the Town on July 2, 1990 again as a "seasonable/part-time employee." Plaintiff occupied the same, part-time position from July 2, 1990, until November 1, 1994. At that time, he was given full-time status, as a Laborer I, Grade 9, in the maintenance department. Plaintiff retains the title of Laborer I today.
According to the Job Description, the duties of a Laborer I include: performing manual labor tasks, such as loading and unloading trucks; landscaping, such as mowing lawns, spreading fertilizer and pruning shrubs; sweeping; digging ditches; performing unskilled construction work; erecting signs, posts, and fences; and assisting carpenters, plumbers, masons, painters, and other maintenance trades-people. These activities are "illustrative only." The qualifications for Laborer I are the ability to learn the care and use of standard tools and equipment used on the job; the ability to understand and follow oral and written instructions; good health and physical strength to perform heavy manual tasks; and the ability to read, write, and understand English. The duties of a Groundskeeper I*fn2 involve supervising work necessary to the care and maintenance of public parks and recreational facilities according to the submitted Job Description. Illustrative activities include participating in grounds keeping activities, maintaining athletic fields and play areas, and removing dirt, rubbish, snow, leaves, and other refuse from public grounds, walks, and parking areas. Qualifications of Groundskeeper I include working knowledge of equipment used in the care and maintenance of parks and recreational facilities, working knowledge of the care of lawns and shrubs, the ability to operate and make routine repairs to grounds- keeping equipment, the ability to make reports and keep records and two years of paid experience in the care and maintenance of large public or private grounds.
During the first years of his employment, Plaintiff was assigned to assist Perry Vacchio, a groundskeeper for the Department of General Services. Plaintiff asserts that Vacchio often referred to him in racially derogatory terms. (Pl.'s Decl. ¶ 51.) Plaintiff asserts that these derogatory names were used by co-workers thereafter, in the presence of Defendants Esposito and Biancaniello, who "did nothing to stop or redress such racist remarks." (Id. ¶ 52.) No specifics are provided as to who made the remarks and when the remarks were made. Moreover, Plaintiff does not assert that these names were ever used by his superiors. In 1992, Vacchio retired.
In 1993, Daryn Miller was hired as a Laborer I. Miller, who is Caucasian, had prior landscaping experience before entering the position. Like Plaintiff, he was initially hired as a part-time employee, but was promoted to full-time status "only two years after his initial hire." (Pl.'s 56.1 Counterstatement ¶ 7.) Miller and Plaintiff have worked side-by-side ever since.
Since being given full-time status in November 1994, Plaintiff has often requested the title and position of Groundskeeper. On four occasions (1996, 1997, 2000 and 2004), Dauscher made recommendations that Plaintiff be promoted to either Laborer II or Groundskeeper I. (Individual Defendants' 56.1 Statement para.s 21 to 23). Plaintiff never received the position. The Town does not maintain records as to why the recommendation was not approved. Enright Dep. at p. 38. It is uncontroverted that Plaintiff has no formal experience in grounds-keeping, other than his exposure while working with Vacchio.
Plaintiff's frustration grew (blossoming into the present lawsuit) because he saw many new employees being promoted within their respective departments. He refers to two employees who were promoted "from Laborer I to Laborer II, Groundskeeper I, and Groundskeeper II positions, within shorter time spans than the Plaintiff's employment." (Pl.'s 56.1 Counterstatement ¶ 42.) These employees are Perry Vacchio and Ron Insignia..
Vacchio began his employment with the Town in 1969 as a Laborer. In 1974, after five years, he was promoted to Laborer II. In 1980 he was promoted to Groundskeeper I, and in 1984 he was promoted to Groundskeeper II. There has been no evidence submitted regarding his educational background or experience.
Insignia was hired as a Laborer I in 1989. He worked on the Town's cemeteries, rather than in the maintenance department.*fn3 He was promoted to Laborer II in 1995, Laborer Foreman the following year, Labor Crew Chief in 2000, and Groundskeeper II in 2001. There has been no evidence submitted regarding his educational background or experience.*fn4 Defendants merely submit that this "individual has worked through the necessary progression or titles to reach the title he currently holds." MacLeod Aff. at para. 11.
Plaintiff also references Michael Brussel, Hussein Moussa, Dennis McDonald, Ara Keshishian, Mariano Polito, and Ralph Lane as employees who were promoted within their respective fields, but who had less seniority than Plaintiff. It is uncontroverted, however, that Brussel was a maintenance mechanic, Moussa was a plumber, McDonald was a mechanic, Keshishian was a mechanic, Polito was a carpenter crew chief, and Lane was a mechanic. It is also uncontroverted that each of these referenced employees, unlike Plaintiff, had educational and professional experience in their fields prior to joining the Town.
Dauscher did in fact recommend Plaintiff for a promotion on a number of occassions. (See Individual Defs.'s 56.1 Statement ¶¶ 21-23.)*fn5 That being said, Plaintiff insists that Dauscher made these recommendations "on only several occassions," and that Dauscher did not "exercise his authority . . . to in any way enforce or follow-up on said request for promotion." (Pl.'s 56.1 Counterstatement at ¶ 20; see also Pl.'s 56.1 Counterstatement at ¶ 63 ("Defendant DAUSCHER fails to explain why, during Plaintiff's fifteen years of employment with the Defendant TOWN, DAUSCHER only put in for Plaintiff's promotion in 1996, 1997, 2000, and 2004.").) Similarly, though Plaintiff admits that Esposito made recommendations for "salary increases and/or promotions" for four employees, including Plaintiff and Miller(see Individual Defs.' 56.1 Statement ¶ 18), Plaintiff denies that Esposito made any recommendations for promotions for Plaintiff. (See Pl.'s 56.1 Counterstatement at ¶ 18.) However, at his deposition Plaintiff conceded that Esposito did not have the ability to affect the terms and conditions of his employment and did not take affirmative steps to prevent him from being promoted. In fact, apart from Esposito telling him to do something and Plaintiff telling him when its completed, Esposito did not perform any supervisory functions over Plaintiff. Howe Dep. at 87, 88 & 94. As for Biancaniello, Plaintiff constantly refers to him as one of Plaintiff's supervisors, but never references any specific conduct by Biancaniello.
On March 25, 2003, Plaintiff filed a charge of discrimination with the EEOC. On September 30, 2003 the EEOC issued a finding of probable cause. On February 17, 2004, Plaintiff filed suit in federal court. Defendants now move for summary judgment. Plaintiff opposes their motions.
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact, and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material. "[O]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing Fed. R. Civ. P. 56(c)).
To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence," Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt as to the material facts," Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), and cannot rely on the allegations in his or her pleadings, conclusory statements, or on "mere assertions that affidavits supporting the motion are not credible." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citations omitted).
The district court, in considering a summary judgment motion, must also be "mindful of the underlying standards and burdens of proof," Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252), because the evidentiary burdens that the respective parties will bear at trial guide district courts in their determination of summary judgment motions. Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). Where the non-moving party will bear the ultimate burden of proof on an issue at trial, the moving party's burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an essential element of the non-movant's claim. Id. at 210-11. Where a movant without the underlying burden of proof offers evidence that the non-movant ...