The opinion of the court was delivered by: Nicholas G. Garaufis, District Judge.
Plaintiff Jeffrey Edwards alleges that Defendants, who include his employer and two of his supervisors, discriminated against him on the basis of his race by failing to promote him and subjecting him to a hostile work environment and, after he reported this discrimination, by retaliating against him. Edwards claims that Defendants violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"); New York State's Human Rights Law, N.Y. Exec. L. § 290, et seq. ("Human Rights Law"); and 42 U.S.C. §§ 1981 and 1983.
Defendants have moved for summary judgment. I referred their motions to the Honorable A. Kathleen Tomlinson, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed. R. Civ. P. 72(b). (Order dated August 23, 2006.) Judge Tomlinson recommends that this court (1) dismiss in part and decline to dismiss in part claims based on the alleged failure to promote, (2) decline to dismiss claims based on the allegedly hostile work environment, (3) dismiss in part and decline to dismiss in part claims based on alleged retaliation, (4) dismiss the remainder of the Section 1983 claim, and (5) decline to dismiss the remainder of the Human Rights Law claim. (Report and Recommendation dated March 19, 2007 ("R&R").) For the reasons set forth below, I adopt these recommendations in part and reject them in part. Defendants' motion for summary judgment is GRANTED with respect to the Section 1981 claim and the Section 1983 claim, which are dismissed entirely. Defendants' motion for summary judgment is GRANTED with respect to all claims based on alleged failures to promote Edwards. Defendants' motion for summary judgment is GRANTED with respect to the Human Rights Law claim to the extent that it is based on employer liability. Defendants' motion for summary judgment is DENIED with respect to the claim of an allegedly hostile work environment, except that it is GRANTED as to Defendant Smosky and, to the extent that it is based on the Human Rights Law, as to Huntington. Defendants' motion for summary judgment is DENIED with respect to the claim of unlawful retaliation.
Because Defendants move for summary judgment, this court must view the evidence in the light most favorable to Plaintiff and must draw all permissible inferences from the submitted affidavits, exhibits, interrogatory answers, and depositions in favor of Plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995). Even in a fact-intensive employment discrimination case, however, the court will not accept as fact mere allegations lacking evidentiary support. Abdu-Brisson v. Delta Air Lines, 239 F.3d 456, 466 (2d Cir. 2001).*fn1
Edwards, an African-American, has been employed by the Town of Huntington ("Huntington") since 1986, has worked in Huntington's Department of General Services ("DGS") since 1996, and has been a Grade 13 Carpenter in DGS from 1999 to the present. (Peckham 56.1 St. ¶¶ 1-2; Edwards 56.1 Resp. to Peckham ¶ 1; Huntington 56.1 St. ¶ 3; Edwards 56.1 Resp. to Huntington ¶ 1.) From 1999 until late 2002, Edwards was directly supervised by George Clemens, a foreman who in turn was supervised by Defendant Richard Smosky. (Huntington 56.1 St. ¶¶ 7-8; Edwards 56.1 Resp. to Huntington ¶ 3.) When Clemens retired, he was replaced by Defendant Robert Peckham, who directly supervised Edwards on a de facto basis beginning in October 2002 and on a formal basis, after being promoted, beginning in July 2003. (Peckham 56.1 St. ¶ 3; Edwards 56.1 Response to Peckham ¶ 1; Huntington 56.1 St. ¶ 11; Edwards 56.1 Resp. to Huntington ¶ 5.) Additional facts are set forth below where relevant.
Edwards alleges that Huntington and DGS violated Title VII and all Defendants violated the Human Rights Law, Section 1981, and Section 1983 by (1) denying Edwards equal terms, conditions, and privileges of employment on the basis of his race, (2) subjecting Edwards to a hostile work environment, and (3) retaliating against Edwards after he complained about this disparate treatment and hostile environment. (Compl. ¶¶ 28-43.)
Defendants have filed timely objections to Judge Tomlinson's recommendations that I decline to dismiss claims based on the allegedly hostile work environment and retaliation. I must therefore consider de novo the recommendations to which they object. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Edwards, however, has not objected to any of Judge Tomlinson's recommendations. The period for doing so has expired. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). Therefore, with respect to any recommendation that I dismiss a claim in whole or in part, I "need only satisfy [my]self that there is no clear error on the face of the record in order to accept the recommendation." Advisory Committee Notes to Fed. R. Civ. P. 72(b) (1983 Addition); see also Covey v. Simonton, 481 F. Supp. 2d 224, 226 (E.D.N.Y. 2007) (Garaufis, J.); CSI Inv. Partners II, L.P. v. Cendant Corp.,180 F. Supp. 2d 444, 447 (S.D.N.Y. 2001).
Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law," Fed. R. Civ. P. 56(c), i.e., "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party," Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). "A fact is 'material' for these purposes if it might affect the outcome of the suit under the governing law.
An issue of fact is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Holtz, 258 F.3d at 69 (citations and quotation marks omitted).
Defendants, because they are the moving parties, bear the burden of establishing the absence of a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). If they satisfy this burden, then Plaintiff, the non-moving party, bears the burden of "set[ting] forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). "The non-movant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture." W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (citations and quotation marks omitted); see also Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Rather, the non-movant can create a genuine issue of material fact only by citing competent, admissible evidence. Sarno v. Douglas Elliman-Gibbons & Ives, 183 F.3d 155, 160 (2d Cir. 1999). In employment discrimination cases, district courts must be "especially chary in handing out summary judgment . . . because in such cases the employer's intent is ordinarily at issue." Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996). "Employers are rarely so cooperative as to include a notation in the personnel file that the [adverse employment action] is for a reason expressly forbidden by law." Bickerstaff v. Vassar College, 196 F.3d 435, 448 (2d Cir. 1999) (citations omitted). Direct evidence of discrimination is therefore not required. Carlton v. Mystic Transp., Inc., 202 F.3d 129, 135 (2d Cir. 2000) ("an employer who discriminates against its employee is unlikely to leave a well-marked trail"). However, as a general rule, "the salutary purposes of summary judgment -- avoiding protracted, expensive and harassing trials -- apply no less to discrimination cases than to commercial or other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d. Cir. 1985).
C. Employment Discrimination and Retaliation
As a general matter, employment discrimination claims brought pursuant to the Human Rights Law, Section 1981, and Section 1983 are evaluated under the standards that apply to Title VII cases. See Schiano v. Quality Payroll Systems, Inc., 445 F.3d 597, 609 (2d Cir. 2006); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000); Sorlucco v. New York City Police Dept., 888 F.2d 4, 6-7 (2d Cir. 1989); Rumala v. New York City Transit Authority, No. 02-CV-3828 (SLT) (KAM), 2005 WL 2076596, *11 n.13 (E.D.N.Y. Aug. 26, 2005); Jessamy v. City of New Rochelle, New York, 292 F. Supp. 2d 498, 511 n.15 (S.D.N.Y. 2003).
Title VII prohibits racial discrimination by providing that it is unlawful "for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race[.]" 42 U.S.C. § 2000e-2(a)(1). Title VII prohibits retaliation by providing that it is unlawful "for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by" Title VII. 42 U.S.C. § 2000e-3(a).
Edwards' Section 1981 claim must be dismissed because he asserts a cause of action under Section 1983. Jett v. Dallas Independent Sch. Dist., 491 U.S. 701, 735 (1989) ("the express 'action at law' provided by § 1983 for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws,' provides the exclusive federal damages remedy for the violation of rights guaranteed by § 1981 when the claim is pressed against a state actor"); Anderson v. Conboy, 156 F.3d 167, 176 n.17 (2d Cir. 1998); Perry v. Metropolitan Suburban Bus Authority, 319 F. Supp. 2d 338, 341-342 (E.D.N.Y. 2004).
B. Hostile Work Environment
Judge Tomlinson recommends that I decline to dismiss Edwards' Complaint to the extent that it is based on an allegedly hostile work environment. (R&R at 12-23.) Because Defendants object, I will consider this issue de novo. I conclude that Judge Tomlinson's recommendation is correct, and I therefore adopt it with respect to this issue.
In order to prevail on a Title VII claim based on an allegedly hostile work environment, a plaintiff must show (1) that the harassment was "sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment" and (2) "a specific basis for imputing the conduct creating the hostile work environment to the employer." Feingold v. New York, 366 F.3d 138, 149-150 (2d Cir. 2004) (citing Oncale v. Sundowner Offshore Servs., ...