The opinion of the court was delivered by: Wexler, District Judge
Plaintiff Demetrius Moreno ("Moreno") brought this action against defendants asserting claims for discrimination and retaliation under 42 U.S.C. §§ 1981 and 1983; Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000-e et seq.; and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296 et seq. By Memorandum and Order dated March 8, 2007, the Court denied defendants' motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure ("FRCP"). Defendants timely filed a motion for reconsideration, and then, before a decision on that motion, filed a notice of interlocutory appeal. Subsequently, defendants withdrew their motion for reconsideration on April 4, 2007, so that they may pursue their interlocutory appeal. By order dated June 21, 2007, and entered July 16, 2007 on this Court's docket, the Second Circuit noted the filing by defendants of their motion for reconsideration and stayed the appeal pending this Court's determination of that motion. Apparently, the parties did not inform the Second Circuit that defendants withdrew their motion for reconsideration. Nevertheless, by letter dated July 26, 2007, defendants requested reinstatement of their motion for reconsideration. The Court hereby grants the motion for reconsideration and, upon reconsideration, grants the motion for summary judgment dismissing the complaint.
The evidence presented on the summary judgment motion can be summarized as follows. Moreno, a black Hispanic male, was hired as a full-time employee by the defendant Town of Huntington (the "Town") in 2000 as part of a settlement of an earlier race discrimination lawsuit filed against the Town, where he was represented by current counsel. According to Moreno, he was hired by the Town in 1999 for a position in the Highway Department, but he was terminated before even beginning the job. He complained of race discrimination and was rehired to work in the General Services Department of General Services as an Auto Equipment Operator ("AEO"). For two years, he worked in the Off-Street Parking Division of General Services. During that time, defendant Thomas Cavanagh ("Cavanagh") was the director of General Services. Sometime in 2002, Moreno moved to the Beaches and Marines Division of the Department of Maritime Services, where he was an AEO and was paid at a Grade 10 salary level.
In October 2002, Moreno applied for a promotion to the position of Heavy Equipment Operator II ("HEO II"), Grade 12, back in the Off-Street Parking Division. The HEO II position is higher than the AEO and HEO I (i.e., Heavy Equipment Operator I) positions. The open HEO II position required the operation of heavy equipment and the supervision of an overnight crew, duties which Moreno claims he previously performed in Maritime Services. He also claims that he had five years of experience as a heavy equipment operator with the New York State Department of Transportation. Moreno was interviewed by an applicant screening committee. The committee recommended Brent Whiteman, a Caucasian, to Cavanagh as the most qualified applicant, with Moreno recommended as the second most qualified applicant. Cavanagh appointed Whiteman to the position, claiming to have reviewed the committee's recommendations and the qualifications of the candidates. Moreno received a letter from Cavanagh in December 2002 notifying him that he had not been selected for the HEO II position. Moreno claims Whiteman was less qualified, had no experience with the Town, and yet was given the top pay scale. According to Moreno, minority employees have never been given top pay after being hired "off the street." Moreover, according to Moreno, Cavanagh conceded that it is the Town's policy to give a position to the more senior applicant where applicants are equally qualified. However, Moreno concedes that he had a good relationship with Cavanagh before December 2002 and that Cavanagh never made any comments to him about Moreno's race.
In a letter dated February 25, 2003, Moreno complained to Cavanagh that he believed his denial of promotion was based on discrimination. While Moreno emphasizes that Cavanagh did not forward the letter to the Town's EEO officer, Dr. Lawrence Miller ("Dr. Miller"), defendants emphasize that Moreno did not request any investigation of the failure to promote him. Instead, according to defendants, Moreno's letter to Cavanagh simply requested that he be "considered for a promotion in the near future." By letter dated March 17, 2003, Cavanagh responded to Moreno's February 25 letter, advising him that he had been ranked as the second most qualified candidate for the HEO II position and explained the reasons why he was not selected. Cavanagh's March 17 letter included a copy of the Town's EEO policy and advised Moreno that he could file a complaint with the Town's EEO officer if he felt that he had been discriminated against. Moreno was familiar with the Town's EEO policy and procedures. By letter dated May 15, 2003, Moreno responded to Cavanagh's March 17 letter.
Moreno maintains that he wrote a complaint to the union, and that Harry Hennessey of the union purportedly agreed that it was unfair for Whiteman to have been given the position over Moreno. Moreno also maintains that he sent his February 25 letter to defendant Town Supervisor Frank Petrone ("Petrone") and defendant Town council members Marlene Budd ("Budd"), Mark Cuthbertson ("Cuthbertson"), Susan Berland ("Berland") and Mark Capodonno ("Capodonno"), but they failed to conduct an investigation to remedy the discrimination and retaliation. Moreno filed a complaint in November 2003 with the Town's EEO officer, Dr. Miller, regarding the HEO II position, but he claims that Dr. Miller refused to accept the complaint as time-barred.
According to defendants, on June 5, 2003, the Town posted a notice of two vacancies for "HEO II" positions within the Refuse Division of the "Department of Environmental Waste Management." On June 16, 2003, Moreno submitted an application for an HEO II position to the Town's Personnel Office. As a result of that application, Moreno was "promoted" to the title of HEO II in the Refuse Division on August 6, 2003. Due to his promotion, defendants maintain, Moreno received a higher title and moved to a grade 12 on the salary schedule, resulting in a $4,000 annual raise.
Moreno's account of these events differs from defendants' account. According to Moreno, in June 2003, Cavanagh contacted him and instructed him to apply for an "HEO II" position. Cavanagh told Moreno that the position was in the department Moreno was already in, i.e., Maritime Services, even though there were no vacant HEO positions in that department at the time. Despite this representation, Moreno was given the HEO II position in the Refuse Division, where he claims that he will never be able to advance above grade 12 and where he had to perform substantially less desirable work as a garbage collector. Moreno claims he never applied or interviewed for that position. Upon being advised that he was being transferred to the Refuse Division, Moreno complained that the assignment was discriminatory and done in retaliation for his complaints. He maintains that he complained to "numerous" people, including Dr. Miller -- the Town's EEO officer -- and defendant Budd. Regarding his complaint to Budd, Moreno received a response from Budd on "her husband's stationery," bearing the seal of the U.S. House of Representatives, where he serves as a congressman. In the memo to Moreno, she indicated that she did not think that he was treated unfairly, explaining that she spoke to Cavanagh and understood that he got the promotion for which he applied. She concluded, "I trust this resolves your problem."
In response to Moreno's assertion that he complained about the transfer, defendants point out that the June 5 notice specifically referenced that the HEO II positions were in the Department of Environmental Waste Management and that Moreno applied for, received, and did not reject the promotion to an HEO II. Rather, he voluntarily accepted the transfer to the Refuse Division with the increased salary and higher grade and title. Defendants also dispute that Moreno's work was mainly as a "garbage collector." Defendants point out that Moreno concedes that he and more senior HEOs in the Refuse Division are assigned to operate garbage trucks and bulk trucks and work on the back of the truck (as lower-level laborers generally would) as necessary. Indeed, Moreno concedes that as a result of difficulties with the truck routes and some of the laborers with him, he requested, on occasion, to be assigned to work on the back of the truck rather than to drive. Moreover, according to defendants, Cavanagh had no role in Moreno's transfer, other than to encourage him to apply, and Moreno does not dispute that he was not working in Cavanagh's department at the time of the transfer.
While working in the Refuse Division, Moreno's supervisors were defendants John Hall ("Hall") and Don Taylor ("Taylor"), an African-American. Moreno claims that he was subject to discriminatory and retaliatory acts while working in the Refuse Division. In one instance, he claims that Hall told him to pick up a discarded couch. In doing so, dog feces underneath the couch cushions fell onto him. When he asked Hall for a new shirt, Hall told him to ask Taylor. When Moreno asked Taylor for a shirt, Taylor refused, even though Taylor had shirts available and regularly gave them out to other employees when needed. This refusal, according to Moreno, was in retaliation for Moreno's past complaints. Moreno further believes Taylor treated him differently than white employees by, for example, preventing Moreno from driving trucks, assignments given to white subordinates. Moreno maintains that he complained to Hall about Taylor's conduct, but to no avail.
Moreno filed an EEOC charge against the defendants on October 29, 2004, and claims that he was subject to further retaliation. For example, he claims that he was instructed to pick up a mattress, but he was not told that someone had died on the mattress so that he could take proper precautions before handling it. In lifting the mattress, Moreno claims he was splattered with human remains. As a result, he worried about contracting a lethal illness and sought psychiatric help. According to defendants, the mattress incident occurred on January 5, 2005. At the time, Moreno was assigned to drive a bulk truck upon which the mattress had already been loaded by the local fire department for disposal. The mattress was folded and tied with a tarp over it when it was put on the back of the bulk truck. Taylor was not working on the day in question, so Hall advised Moreno that the mattress was on his truck, but he did not tell him that someone had died on it. Hall claims that he did not tell Moreno to move or touch the mattress. Rather, Hall claims, Moreno was assigned to drive the truck that day and another employee was serving as his laborer. In any event, defendants maintain, Moreno did not suffer any health problems as a result of his contact with the mattress and he never filed a complaint with the Town's EEO office regarding the mattress incident. Rather, Moreno sent a letter, dated February 9, 2005, to Town Attorney John Leo regarding the mattress incident, but made no reference to any claim of discrimination or retaliation. Moreno maintains that he brought this letter to the attention of the defendants Petrone, Budd, Cuthbertson, Berland and Capodonno. The Town responded to his letter by letter dated March 1, 2005.
On another occasion in 2005, the Suffolk County Sheriff's Department contacted Hall and notified him that it had a warrant for the arrest of Eugene Sherrod ("Sherrod"), a laborer in the Refuse Division. On that day, Sherrod was working as a laborer on Moreno's truck. The Sheriff's Department requested that Hall contact Moreno to direct him to drive his truck to a local firehouse where they would arrest Sherrod. Hall directed Moreno to meet him at the firehouse, but, according to Moreno, he did not warn Moreno about the planned arrest. At the firehouse, Sherrod was taken into custody by the Sheriff's Department. According to Moreno, Sherrod got mad at Moreno, accusing him of setting Sherrod up. Moreno claims that Hall and Taylor showed up at the firehouse and laughed while they viewed the events. By letter dated February 18, 2005, Moreno wrote to defendant Petrone regarding the incident involving Sherrod's arrest. The Town responded to that letter by letter dated March 10, 2005 from Town Personnel Officer Lisa Baisley ("Baisley"). In the letter, Baisley explained the facts and circumstances that led to the Sheriff's Department requesting the Town's assistance in locating Sherrod. The letter stated that "it appears that there have been no acts of retaliation committed against you" and advised Moreno that he could file a complaint with the Town's EEO Office for any violation of the Town's EEO policy.
Moreno claims that in retaliation for his complaints, he was written up by Hall for failure to wear a helmet and by another supervisor for failing to file a "trip ticket." Although Moreno concedes he was not wearing a helmet on that occasion, he maintains that he got a "final warning" even though he did fill out the trip ticket and notwithstanding that it was the first and only time he was written up. He also claims that defendants continue to deny him ...