The opinion of the court was delivered by: Trager, J
Pro se plaintiffs Celestino P. Monclova ("Monclova") and Darrell Ramos ("Ramos") (collectively "plaintiffs") bring this lawsuit against the City of New York ("City"); the New York City Department of Correction ("DOC"); the Anna M. Kross Center ("AMKC"); Brian Riordan, Warden for the Anna M. Kross Center ("Riordan"); Edmond Duffy, Deputy Warden of Programs ("Duffy"); and JoAndrea Davis, Deputy Warden of Administration ("Davis")*fn1 (collectively "defendants"). Plaintiffs are bringing claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a) et seq. ("Title VII"), and 42 U.S.C. § 1983 ("§ 1983"). Plaintiffs allege that defendants refused to transfer them to more favorable work conditions and issued disciplinary charges against them in retaliation for plaintiffs' opposition to unlawful employment practices. Compl. ¶ 2. Plaintiffs seek to expunge their disciplinary records, to be reassigned to a "low classification area" and punitive damages.
Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56, arguing that: (1) plaintiffs cannot establish a prima facie case of retaliation because they did not suffer any materially adverse actions, and there is no causal connection between plaintiffs' protected activity and any allegedly adverse actions; (2) all claims under § 1983 should be dismissed because plaintiffs fail to allege that they suffered a constitutional violation, and in any event all claims against DOC should be dismissed because plaintiffs cannot show that any alleged violations were caused by an official policy or practice; (3) individual defendants Riordan, Duffy and Davis are entitled to qualified immunity against any § 1983 claims; and (4) individual Title VII claims against Riordan, Duffy and Davis must be dismissed because Title VII only provides a cause of action against the entity employing plaintiffs.
As explained below, plaintiffs fail to make out a prima facie case of retaliation under Title VII or § 1983. Therefore, defendants are entitled to summary judgment on all claims.
(1) Plaintiffs' Prior Suits Alleging Unlawful Employment Practices
Plaintiffs are correction officers employed by the DOC. Both men work at the AMKC, a DOC facility located on Rikers Island. Monclova began working for the DOC in or around June 2001, and the AMKC was his first assignment. Defs.' Statement of Undisputed Facts Pursuant to Local Rule 56.1 ("Rule 56.1 Statement") ¶ 2. Ramos began his employment as a correction officer in or around July 2002. Id. ¶ 3.
In July 2004, Monclova sued the DOC claiming that he was dismissed from specialized training for the DOC's Emergency Services Unit because of his race and veteran status. See Monclova v. N.Y. City Dep't of Corr., No. CV-04-3026 (DGT) (E.D.N.Y. dismissed Aug. 8, 2007) ("Monclova I"), Compl. ¶ 1.*fn2
On August 8, 2007, Monclova's suit was dismissed for failure to prosecute.
In January 2005, Ramos sued the DOC claiming that the DOC discriminated against him because of his race by (1) firing him,
(2) refusing to give him back pay after he was reinstated and
(3) refusing to permit him to be firearm qualified. Ramos v. N.Y. City Dep't of Corr., No. CV-05-0223 (JFB), 2006 WL 1120631, at *1 (E.D.N.Y. Apr. 26, 2006). In August 2006, Ramos's complaint was dismissed for being time-barred and for failing to state a claim upon which relief could be granted. Ramos v. N.Y. City Dep't of Corr., No. CV-05-0223 (JFB), 2006 WL 2355839, at *4-5 (E.D.N.Y. Aug. 14, 2006).
(2) Plaintiffs' Work Assignments and Transfer Requests
Ramos began work at the AMKC in or about September 2003. After arriving at AMKC, Ramos posted a request for a steady tour of duty. Deposition of Darrell Ramos, dated Mar. 3, 2006 ("Ramos Dep."), at 64. According to Ramos, the alternative to a steady tour of duty was to be given assignments "on the wheel," which meant that he could be assigned anywhere within the AMKC and that his shift hours could change.*fn3 Id. Ramos requested to work in the Module Eleven housing area, and this assignment was granted in December 2003. Id. at 67. Ramos was initially pleased when his request to post to a Module Eleven shift was granted. Id. at 68. Ramos now alleges that Module Eleven is what he calls a "high classification area" that houses the "most violent and aggressive" DOC inmates. Compl. ¶ 1. Ramos, however, was aware of the nature of Module Eleven when he requested to be assigned there. Ramos Dep. at 67-68.
As noted, Monclova first began work at AMKC in June 2001. According to plaintiffs, Monclova has been assigned only in unspecified "high classification" areas since he was dismissed from a prior housing area posting in December 2003. Compl. ¶ 3. Plaintiffs also state that Monclova was "badly injured in one of those Housing Areas (Module 11)," but that upon his return to work in April 2004 Monclova "was told by his Personnel Captain (Captain Glass) that the only steady housing area that would be available to him was Module 11." Id. Monclova did not file any grievances about the Module Eleven assignment when he returned in April 2004, apparently because he preferred to work in Module Eleven rather than "floating from one unfamiliar high classification area to another." Deposition of Celestino Monclova, dated Feb. 22, 2005 ("2005 Monclova Dep.") at 66-67; Compl. ¶ 4. Ramos states that Monclova's assignment to Module Eleven was made at Ramos's request and that this request was made with Monclova's knowledge. Ramos Dep. at 72.
On August 31, 2004, Ramos filed a request to change his work assignment to include two days on an escort post assignment. Memo from Ramos to Warden Valerie Oliver, dated Aug. 31, 2004, attached as Bardavid Decl. Ex. F; Ramos Dep. at 80. Ramos's request was denied because this was not an available position. Rule 56.1 Statement ¶ 7. Ramos acknowledged that he was aware the escort post was not an available assignment, and that it was generally filled by people seeking overtime shifts. Ramos Dep. at 80.
On February 9, 2005, Monclova submitted a request to AMKC Warden Riordan to transfer him, Ramos and Correction Officer Bryant Miller out of Module Eleven or other "high incident areas." Monclova asked that the officers be "placed in areas where Uses of Force, and physical controversy, are minimal." Memo from Monclova to Riordan, dated Feb. 9, 2005, attached as Bardavid Decl. Ex. H. This request was not made in response to an available posting. Ramos Dep. at 128; Deposition of Celestino Monclova, dated Mar. 14, 2006 ("2006 Monclova Dep.") at 23.
At some point in February 2005, Monclova was removed from Module Eleven, although Monclova says he remained in "high classification" areas at AMKC. 2005 Monclova Dep. at 73; Rule 56.1 Statement ¶ 12. On March 2, 2005, Monclova submitted another request to Warden Riordan asking "to be assigned a steady housing area somewhere in the Dorm Projects." Memo from Monclova to Riordan, dated Mar. 2, 2005, attached as Bardavid Decl. Ex. K. Although Monclova submitted these informal requests on multiple occasions, none of his requests were ever made in response to an available posting. 2006 Monclova Dep. at 64. Monclova apparently remained in an undesired work position when plaintiffs filed the current complaint on June 30, 2005.
On February 17, 2005, Ramos submitted another request to be reassigned out of Module Eleven to a different position with "no inmate contact . . . or no housing." Memo from Ramos to Riordan, dated Feb. 17, 2005, attached as Bardavid Decl. Ex. J. This request was denied. Rule 56.1 Statement ¶ 11.
On March 7, 2005, Ramos submitted another memo to Warden Riordan asking to be reassigned out of Module Eleven. Ramos wrote that he had worked in Module Eleven "for almost two years, and my daily tasks are becoming even more difficult, because I lost one steady officer, and the other steady officer I also rely on, I only work with for two out of my four days." Memo from Ramos to Riordan, dated Mar. 7, 2005, attached as Bardavid Decl. Ex. L. Ramos asked "to be reassigned to an available area (post) of my choosing." Id. In response, Ramos received a handwritten note from Deputy Warden Davis, also dated March 7, 2005, denying his request. Id. Davis explained that "[w]e are unable to switch your post because you feel your daily tasks are hard. When a steady post & tour becomes available and it's posted you are free to put [in] for it. If you cannot wait for that you can go on 4 x 2 rotation until a post and tour becomes available that you like." Id. Although a "4 x 2 rotation" is not clearly defined in the record, Davis was apparently offering Ramos the opportunity to leave his steady posting in Module Eleven in exchange for a wheel rotation through different work assignments. A correction officer working a "4 x 2" schedule works four days in a row and then receives two days off, rather than having the same two days off every week. See 2006 Monclova Dep. at 16.
The next day, Ramos again submitted a written request to be transferred, this time from Module Eleven to the "Mod 6 Corridor security post." Memo from Ramos to Riordan, dated Mar. 8, 2005, attached as Bardavid Decl. Ex. M. Ramos stated that "[d]ue to my high level of use of force I request to be moved from a housing area to the corridor." Id. Once again, he received a handwritten note that same day from Davis denying the request. Davis reiterated that Ramos could request a transfer when an available assignment was posted, or he could "go on 4 x 2 rotation" in the meantime. Id.
Three months later, on June 28, 2005, Ramos sent another request to Warden Riordan asking to be moved out of Module Eleven and given an escort post. Memo from Ramos to Riordan, dated June 28, 2005, attached as Bardavid Decl. Ex. N. Ramos asked why his requests were being denied, and asked for copies of ...