The opinion of the court was delivered by: VITALIANO, D.J.
On February 19, 2002, plaintiff Benjamin Everson ("Everson") brought this action against his former employer, the New York City Transit Authority ("Transit Authority"), and his former supervisor, Thomas Calandrella ("Calandrella"), alleging various violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq., the New York City Human Rights Law, N.Y. City Admin. Code § 8-107 et seq., and 42 U.S.C. §§ 1981, 1983, 1985 and 1986. The complaint alleges that defendants failed to promote Everson due to his race, subjected him to a hostile work environment, and retaliated against him for filing a discrimination complaint. On May 1, 2002, defendants moved to dismiss portions of the complaint. By Memorandum and Order dated August 12, 2002, District Judge I. Leo Glasser granted the motion in part and denied it in part. Everson v. New York City Trans. Auth., 216 F. Supp. 2d 71 (2002). Specifically, Judge Glasser dismissed Everson's conspiracy claims, punitive damage claim, and his initial untimely failure to promote claims. Id. at 81.
On September 9, 2004, this case was transferred to District Judge Dora L. Irizarry, who was newly appointed to the federal bench. On January 28, 2005, defendants moved for summary judgment on Everson's remaining claims, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. On April 6, 2006, Judge Irizarry referred defendants' motion to Magistrate Judge Joan M. Azrack for a Report and Recommendation. On April 11, 2006, the case was transferred to this Court, who had then been newly appointed to the federal bench. On December 29, 2006, Magistrate Judge Azrack issued a Report and Recommendation ("R & R"). Both Everson and defendants filed objections on January 16, 2007.
Magistrate Judge's Report and Recommendation
Defendants moved to dismiss Everson's Title VII claims because he had not initiated this lawsuit within 90 days of receiving a "right-to-sue" letter from the EEOC. See 42 U.S.C. § 2000e-5(f)(1). At his deposition, Everson had denied ever receiving the letter. Magistrate Judge Azrack found, citing Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 526 (2d Cir. 1996), that Everson's testimony was sufficient to create a genuine issue of material fact as to whether he had actually received the letter. It was thus recommended that summary judgment not be granted on this ground. Defendants have not objected to this recommendation.
It was also recommended that the Court grant summary judgment to defendants on Everson's failure to promote claims relating to the positions of Assistant Chief Infrastructure Officer, Chief Infrastructure Officer, and Assistant Chief Electrical Officer. Judge Azrack wrote that, although Everson had made a prima facie showing of discrimination, defendants had offered a legitimate, nondiscriminatory reason for not promoting him to each of the positions and that "the record contains not a shred of other evidence demonstrating the racial animus of the hiring decisionmakers . . . or a history of discrimination in hiring" at the Transit Authority. R & R at 18. As such, the R & R concludes that the record does not contain evidence that would allow a reasonable juror to find that any of these failures to promote Everson were based on illegal racial discrimination. It was thus recommended that the Court grant defendants' motion for summary judgment on these claims. Plaintiff has not objected to this recommendation.
Magistrate Judge Azrack also recommended that the Court dismiss Everson's failure to promote claim relating to the position of Assistant Chief Track Officer. Judge Azrack found, again, that Everson had offered a prima facie case and that defendants had put forth a legitimate, nondiscriminatory reason for the adverse hiring decision -- someone else had interviewed better. The R & R finds it to be significant that the hiring decision-maker had promoted African-Americans in the past and that Everson was ranked fifth out of six by an interview committee which included two African-Americans. However, unlike the other failure to promote claims, Everson put forth some evidence of discriminatory intent, in particular, evidence of racist remarks by the hiring decision-maker, defendant Calandrella. Judge Azrack concluded, however, that the stray remarks attributed to Calandrella over a 15-year period were remote and "simply not enough for the plaintiff to establish that Calandrella's explanations were pretext for racial discrimination." R & R at 24. It was thus recommended that the Court grant defendants' summary judgment motion with regard to this claim as well. Plaintiff has objected to this recommendation.
Magistrate Judge Azrack recommended that the Court dismiss Everson's Title VII claims brought against Calandrella in an individual capacity. See Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per curiam). Plaintiff has not objected to this recommendation.
The R & R deals separately with each of six alleged instances of retaliation and concludes that three would be actionable as stand-alone claims of retaliation, specifically, Everson's claims that defendants retaliated by: (i) giving him inaccurate evaluations for 1999 and 2000; (ii) reducing the vehicles assigned to his workspace over a two-year period; and (iii) refusing to reassign a staff analyst to him after March 2000. Defendants object and contend that this Court should grant them summary judgment on Everson's retaliation claim.
Finally, Magistrate Judge Azrack recommended that the Court grant defendants summary judgment with regard to plaintiff's hostile work environment claim as well as his failure to promote claims brought against the Transit Authority pursuant to 42 U.S.C. §§ 1981 and 1983. Plaintiff has not objected to these recommendations.
Everson objects to Magistrate Judge Azrack's recommendation that this Court grant the Transit Authority summary judgment on his Title VII claim that stems from defendants' failure to promote him to the position of Assistant Chief Track Officer. Everson argues, in short, that he has put forth sufficient evidence to raise a genuine issue of material fact as to whether defendants' stated reason for failing to promote him was pretext for illegal racial discrimination. Explaining the basis of his objection, Everson states that "[t]he facts presented regarding the issue of Calandrella's animus is not to be evaluated in a test tube, but must be considered in the context of the totality of the circumstances." Pl.'s Objection, at 8. He adds that the R & R over-relies on evidence that Calandrella had promoted African-Americans in the past, a fact that he claims is insignificant given that Calandrella had to promote some minority employees to reach "diversity management goals." As indicated above, Everson does not object to any of Judge Azrack's other recommendations.
Defendants object to Magistrate Judge Azrack's recommendation that the Court deny them summary judgment on Everson's retaliation claim. Defendants contend that Everson has made no showing of retaliatory animus or that the alleged retaliatory acts were even out of the ordinary. For example, defendants argue that plaintiff has made no showing that his post-complaint evaluations of "good" in 1999 and 2000 were inconsistent with the majority of his prior evaluations throughout the 1990s. Defendants add that "[i]solating the actions alleged to have occurred after his protected activity from the totality of Plaintiff's allegations regarding retaliation distorts the consistency of his experience both before and after his protected activity." Defs.' Objections, at 2. Defendants also point to the remote nature of the alleged retaliatory acts, both in terms of time and Transit Authority employees involved. Lastly, defendants claim that there is an "absence of any non-speculative evidence of materially adverse consequences [stemming] from the alleged retaliatory actions." Defs.' Objections, at 2. Defendants do not object to any of Judge Azrack's other recommendations.
When a magistrate judge is "assigned without consent of the parties to hear a pretrial matter dispositive of a claim or defense of a party . . . [t]he magistrate judge shall enter into the record a recommendation for disposition of the matter, including proposed findings of fact when appropriate." Fed. R. Civ. P. 72(b). In reviewing such a R & R, a district judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). However, two standards apply. See Urena v. New York, 160 F. Supp. 2d 606, 609-10 (S.D.N.Y. 2001). Unobjected to findings of the R & R may be adopted so long as they are not clearly erroneous. Tsabbar v. Eason, No. 04-cv-10215, 2006 WL 3755178, at *2 (S.D.N.Y. Dec. 21, 2006); Knoll v. Equinox Fitness Clubs, No. 02-cv-9120, 2006 WL 2998754, at *1 (S.D.N.Y. Oct. 20, 2006). Findings that are timely objected to require a de novo determination by the district judge. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 674, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). The de novo standard requires that the district judge make an "independent determination of a controversy that accords no deference to any prior resolution of the same controversy." Old Republic Ins. Co. v. Hansa World Cargo Serv., Inc., 51 F. Supp. 2d 457, 466 (S.D.N.Y. 1999) (quoting Raddatz, 447 U.S. at 690 (Stewart, J., dissenting)).
Facts Underlying Plaintiff's Failure to Promote Claim
Everson is an African-American male who spent his entire career with the Transit Authority's track division, gradually working his way through its ranks. The Transit Authority hired Everson in 1970 as a track worker. Seven years later, Everson was promoted to foreman, a position in which he supervised between six and eight other track workers. In the mid-1980s, Everson received a series of promotions: in March of 1984 to Assistant Supervisor, in September of 1984 to Deputy Superintendent, and in June of 1986 to Superintendent. As ...