The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge.
Plaintiff Amar Gueye, proceeding pro se, has sued the Secretary of the Department of Commerce alleging that Gueye was the victim of various adverse employment actions on the basis of his race, color, national origin and religion in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, et seq., all in connection with his employment of less than one month with the United States Census Bureau. Gueye also contends that he was terminated in reprisal for his having complained to an Equal Employment Opportunity investigator. After the close of discovery, defendant moved for summary judgment in his favor pursuant to Fed. R. Civ. P. 56. As explained below, that motion is granted: Gueye's claim of religious discrimination fails because Gueye was not threatened with discipline on account of his religion, and Gueye's claims of racial discrimination and wrongful retaliation fail because Gueye has not presented materially disputed facts sufficient to rebut defendant's legitimate, nondiscriminatory and nonretaliatory reasons for his termination.
On December 28, 1999, Gueye, who is black and from Senegal, was hired to work as a recruiting assistant for the Local Census Office of the United States Census Bureau located in Harlem (the "Harlem LCO") in connection with the 2000 Census. (Def.'s Local Civil Rule 56.1 Statement of Undisputed Facts ("Def.'s 56.1") ¶¶ 2-3.) Each LCO conducts the Census Bureau's operations for its particular area. (Id. ¶ 2.) Gueye's job as recruiting assistant at the Harlem LCO required him to canvas the streets of Harlem in an effort to hire other individuals to assist in administering the census. (Id. ¶ 4.) He was hired for eight weeks only, with his term scheduled to expire on February 22, 2000. (Decl. of Lester A. Farthing dated July 13, 2000 ("Farthing Decl.") ¶ 11.)
Gueye's short tenure at the Harlem LCO was marked by constant turmoil. At some point early on, Gueye overheard a co-worker who was speaking Spanish at the time refer to him as a "vendejo."*fn2 (Affidavit of Amar Gueye dated May 19, 2000, submitted in connection with EEOC Complaint No. 00-63-00355D ("Gueye Aff."), attached as Ex. 4 to the Declaration of Lawrence H. Fogelman dated July 18, 2006 ("Fogelman Decl.")) In response, Gueye told the co-worker to watch her mouth. (Id.) The co-worker was not a supervisor but was of lower or equal stature at the Census Bureau as Gueye. (See Deposition of Amar Gueye dated Jan. 3, 2006 ("Gueye Dep."), Tr. at 126-27, attached as Ex. 3 to Fogelman Decl.)
Shortly after this incident, Gueye told officials at the Harlem LCO that in the past he had been held up at gunpoint in the Harlem neighborhood he had been assigned to canvas and had been threatened by his assailant's family members after he identified the assailant in court. (Def.'s 56.1 ¶ 6.) He requested a transfer to an LCO in the Bronx, but that request was denied (id. ¶¶ 10-14; Gueye Aff.); instead, he was demoted to the position of recruiting clerk -- which accommodated his personal issues because it involved indoor work -- on January 16, 2000. (Def.'s 56.1 ¶ 9.)
On January 14, 2000 -- after the conversation in which he was called a "vendejo" and after he was denied a transfer, but before he was demoted -- Gueye contacted Amy Hendry, an Equal Employment Opportunity investigator who was a specialist for the Census Bureau, to complain about these incidents. (Id. ¶ 25; Farthing Decl. ¶ 10.) He told Hendry that racial slurs had been directed at him by a co-worker. (E-mail from Amy Hendry to Patricia A. Valle dated Jan. 14, 2000 ("Hendry E-Mail"), attached as Ex. 9 to Fogelman Decl.) At Gueye's request, Henry contacted Patricia Valle, a manager in Gueye's chain of command, to relate Gueye's complaints. (Id.)
Ten days later -- on January 24 -- Gueye had two distinct confrontations with Harlem LCO employees. During one, Gueye instigated an argument with a fellow employee who took over common desk space that Gueye had been using after Gueye stepped away. ( Id. ¶ 22; Gueye Dep. pp. 332-37). The other, more substantial, altercation began over a dispute regarding whether Gueye's timesheet for that day was accurate. Monica Taylor and Denise Watkins, assistant managers at the Harlem LCO, believed that Gueye had logged time for periods that he did not work. (Affidavit of Monica Taylor dated August 4, 2000 ("M. Taylor Aff.") ¶¶ 9-10, attached as Ex. 1 to Fogelman Decl.) Taylor, who is African-American, contends that Gueye grew irate at the accusation, and began to curse at her and accuse her of being a racist. (Id. ¶ 11.) Gueye also engaged in a shouting match with Watkins. (Id. ¶ 12; Def.'s 56.1 ¶ 21; Gueye Dep. pp. 322-31.) He asserts that during the confrontation Watkins -- who is also African-American -- cursed at him, attacked him, and used "racial slurs," the specifics of which he could not remember. (Gueye Dep., Tr. at 323, 329.) According to LCO employees, Gueye was so hostile during the shouting match with Watkins that they contemplated calling the police. (Affidavit of Renee Taylor dated July 20, 2000 ("R. Taylor Aff.") ¶¶ 21-22, attached as Ex. 2 to Fogelman Decl.) Following the January 24 incidents, Gueye was fired effective Jan. 31, 2000, one month after he arrived and three weeks prior to the time his temporary term was to expire. (Def.'s 56.1 ¶¶ 23-24.) Defendant contends that Gueye was fired because of his behavior on January 24; Gueye maintains that he was fired for discriminatory reasons.
Finally, Gueye contends that prior to his termination he requested but was denied a day off for the Muslim holiday Eid ul-Fitr, which marks the last day of the holy month of Ramadan. (Id. ¶ 17.) He had indicated on a job questionnaire that his religious beliefs would not interfere with his job requirements. (Id. ¶ 16.)
Two years and nine months later -- in September 2003 -- Gueye commenced the present action by filing a complaint with the United States District Court for the Southern District of Ohio. He asserted that the refusal to transfer him to another LCO, his demotion to recruiting clerk, and his eventual termination were made on the basis of his race, national origin, color, and religion in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). Additionally, he asserted that the refusal to grant him a day off for the holiday of Eid ul-Fitr constituted religious discrimination in employment in violation of Title VII, and that his eventual termination constituted unlawful retaliation for his having contacted an EEO officer about his complaints of discrimination.
On June 16, 2004, the matter was transferred to this Court pursuant to 28 U.S.C. § 1406(a) for improper venue. In his motion for summary judgment, the Secretary contends that Gueye cannot make out a prima facie case of discrimination or retaliation and that, even if he could, Gueye cannot rebut the legitimate, nondiscriminatory reason the Secretary articulates for the alleged adverse employment actions.
A. The Summary Judgment Standard
Summary judgment is appropriate only if the evidence shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995); LaFond v. Gen. Physics Serv. Corp., 50 F.3d 165, 171 (2d Cir. 1995). In determining whether a genuine issue of material fact exists, the Court "is to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004); see also LaFond, 50 F.3d at 171. At the summary judgment stage, plaintiff must come forward with "concrete evidence from which a reasonable juror could return a verdict in his favor," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 91 L. Ed. 2d ...