The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
Defendants, New York City Health and Hospitals Corporation ("HHC") and Carol Raboy-Braunstein ("Raboy-Braunstein")*fn1 , move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment to dismiss the Complaint filed by Plaintiff, Ebenezar Pannikadavil, on November 10, 2004. The Complaint alleges: 1) employment discrimination based on Plaintiff's race (Asian) and national origin (Indian); 2) hostile work environment on the same bases; and 3) retaliation in violation of Plaintiff's equal rights pursuant to 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964 as amended by 42 U.S.C. § 2000e et seq., and New York State Common Law.*fn2
(Compl. ¶ 2.) For the reasons that follow, Defendants' motion is granted in part, and denied in part.
Plaintiff has been employed as a provisional Laboratory Microbiologist B by Defendant HHC since 1997, and he was initially assigned to work at Lincoln Hospital Center. (Compl. ¶ 8.) In July 1999, Plaintiff was involuntarily transferred to Bellevue Hospital. (Compl. ¶ 10.) At various times discussed in further detail infra, Plaintiff alleges that he applied for promotion to Associate Laboratory Microbiologist B. (Compl. ¶¶ 5-7, 13.) Defendant Raboy-Braunstein was the Associate Executive Director of the Pathology Department at Bellevue Hospital since the time of Plaintiff's transfer to Bellevue until December 2004, when she left Bellevue Hospital. (Compl. ¶ 11; Defs.' Ex. D (Raboy-Braunstein Dep.) 7.) Kara Breznak and Laura Malloy were two white, female co-workers of Plaintiff at Bellevue Hospital. (Compl. ¶ 15.)
Defendants' Local Civil Rule 56.1 Statement sets forth what Defendants assert are the undisputed facts in this case, supported by citations to the evidence as required under the rule. Plaintiff's Local Civil Rule 56.1 Response Statement, although prepared by counsel, cites to no evidence in support of its denials. See Local Civil Rule 56.1(d) ("each statement by the movant or opponent.including each statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e)").*fn3
Defendants' 56.1 Statement and Plaintiff's Rule 56.1 Responses are as follows:*fn4
1. "Plaintiff has been employed as a Laboratory Microbiologist B with HHC since 1997. When hired he was assigned to Lincoln Hospital. See Exhibit 'B' at 18 (Pannikadavil Dep. Tr.)."*fn5 Plaintiff's response: "Admits."
2. "In 1999, plaintiff, along with several other employees, was involuntarily reassigned from Lincoln Hospital to Bellevue Hospital Center. See Exhibits 'G,' and 'H,' respectively (Letter from HHC to plaintiff, dated June 24, 1999, concerning involuntary reassignment to Bellevue; letters to various other employees, dated June, 1999, concerning involuntary reassignments to Bellevue)." Plaintiff's response: "Admits."
3. "This involuntary transfer was based on a decision made by the Network leadership of Generations Health Network and South Manhattan Health Network to transfer the laboratory work from Generations to South Manhattan. See Exhibits 'G' and 'H.' (Letter to plaintiff concerning involuntary reassignment to Bellevue and Letters to various other employees concerning involuntary reassignments to Bellevue)." Plaintiff's response: "Plaintiff does not know why the transfers took place."
Since Plaintiff does not specifically controvert Defendants' statement, Plaintiff's response constitutes an admission under Local Rule 56.1(e). See also Gubitosi v. Kapica, 154 F.3d 30, 31 n.1 (2d Cir. 1998) (deeming facts in defendant's Local Rule 3(g) - since renumbered Local Rule 56.1 - statement admitted as a matter of law as a result of plaintiff's failure to respond to the statement.*fn6
4. "The laboratories were transferred and the personnel who worked in those laboratories."*fn7 Plaintiff's response: "Plaintiff does not know if the entire labs were transferred nor whether the employees were all transferred." This response constitutes an admission under Local Rule 56.1 because it does not specifically controvert Defendants' statement. See supra, at ¶ 3.
5. "Plaintiff was reassigned to the same title, with the same pay. He was advised, by letter dated June 24, 1999, that he was being involuntary [sic] transferred effective July 6, 1999, to Bellevue, Pathology Department in the title of Laboratory Microbiologist B, and assigned to the 4pm to 12am shift. See Exhibit 'B' at 60 (Pannikadavil Dep. Tr.); Exhibit 'G.'" Plaintiff's response: "Admits."
6. "Plaintiff concedes that he did not apply for a promotion for the position of Associate Laboratory Microbiologist from 1997 to 2004. See Exhibit 'B' at 84 (Pannikadavil Dep. Tr.); Exhibit 'C' at 53--55 (Pannikadavil Dep. Tr.)." Plaintiff's response: "Deny."
7. "Plaintiff claims that he applied for promotions to the position of Associate Laboratory Microbiologist on two occasions in 2004 and 2005. See Exhibit 'B' at 74--77 (Pannikadavil Dep. Tr.)." Plaintiff's response: "Admits."
8. "Plaintiff concedes that the first and only time he applied to take the civil service examination for the position of Associate Laboratory Microbiologist occurred in February, or March, 2006. See Exhibit 'B' at 78 (Pannikadavil Dep. Tr.)." Plaintiff's response: "Deny."
9. "While at Bellevue, two of plaintiff's female co-workers, Laura Molloy and Kara Breznak, both brought complaints stating that plaintiff was harassing them and making inappropriate comments, and following them. See Exhibit 'I' (Molloy Complaint [dated 2/4/02]);*fn8 Exhibit 'J' (Breznak Complaints [dated 3/11/02, 12/17/02, and 12/19/02])." Plaintiff's response: "Admits."
10. "The complaints were thoroughly investigated. In fact, several meetings were held, where all parties involved, including plaintiff, had the opportunity to explain their views of the facts. At the conclusion of the investigation, all parties were notified that they were required to interact with each other using only the 'highest standard of professional conduct and only regarding business related matters.' Exhibit 'K [meetings held on 1/30/02; 1/31/02; 2/1/02; and 2/6/02].'" Plaintiff's response: "Deny."
11. "All parties, including plaintiff, were advised that 'harassment or discriminatory remarks are clearly against the policy protecting persons' at HHC. Id." Plaintiff's response: "Deny that all parties were so advised but admits that Plaintiff was advised."
12. "In an effort to maintain harmony within the laboratory, it was determined that in the best interest of the hospital, that plaintiff's shift be changed in order to ensure that he [no]*fn9 longer be working the same shift as Ms. Molloy and Ms. Breznak. See Exhibit 'I' (at NYU Letter [dated April 20, 2004]*fn10 noting the necessity of the shift change); Exhibit 'D' at 23 (Raboy-Braunstein Depo. Tr.)." Plaintiff's response: "Admits that the shift was changed but denies that it was done in the best interest of the hospital."
13. "Plaintiff's shift was changed from the 4 p.m. to 12 a.m. shift to the 8 a.m. to 4 p.m. shift for just over three months, from December 30, 2002 until April 9, 2003, when his request to return to the 4 p.m. to 12 a.m. shift was granted. See Exhibits 'L,' 'M,' and 'N.'" Plaintiff's response: "Admits that shift was changed but deny [sic] that request to have it changed to original shift is denied. That is because the request was made when the shift was first changed. By the time plaintiff was returned to original shift, adjustments had been made regarding my family arrangements. Plaintiff had settled in to the new shift and had to redo and undo family arrangements." This response, while unclear, does not specifically controvert Defendants' statement, and therefore is an admission. See Local Rule 56.1(e); Gubitosi v. Kapica, supra. Plaintiff also fails to cite any evidence in support of these assertions.
14. "Plaintiff's one and only administrative charge of discrimination was filed with the United States Equal Employment Opportunity Commission [EEOC] on October 14, 2003. See Exhibit 'F.'" Plaintiff's response: "Admits."*fn11
The allegations in Defendant's Rule 56.1 Statement that Plaintiff has admitted, or has not specifically controverted are deemed admitted under Rule 56.1. Accordingly, this opinion will examine the Plaintiff's affidavit in opposition to the motion, as well as his deposition transcripts, to determine the validity of the denials in paragraphs 6, 8, 10-12, and the factual issues raised by paragraphs 7 and 13 regarding whether the Plaintiff was discriminated against based on his race or national origin when he applied for promotion and when Defendants changed his shift; and whether the Defendants allowed him to be subjected to a hostile work environment based on his race or national origin.
During discovery, Plaintiff was deposed in two sessions on August 15, 2006, and on September 29, 2006. (Defs.' Ex. B; Defs.'s Ex. C.) In conjunction with his opposition to Defendants' motion for summary judgment, Plaintiff filed a lengthy answering affidavit, dated September 6, 2007. Some statements in this affidavit conflict with Plaintiff's deposition testimony. To the extent the deposition testimony and the affidavit conflict, the Court will credit the deposition testimony, because the Plaintiff has offered no evidence showing that he corrected his deposition transcripts. See Fed. R. Civ. P. 30(e).*fn12 It is a "well-settled rule in this circuit that a party may not, in order to defeat a summary judgment motion, create a material issue of fact by submitting an affidavit disputing his own prior sworn testimony." Margo v. Weiss, 213 F.3d 55, 60 (2d Cir. 2000) (internal citations and quotation marks omitted).
A. Summary Judgment Standard
A court may grant summary judgment only where "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). When considering a motion for summary judgment, this Court must view the facts in the light most favorable to the nonmoving party, and draw all reasonable inferences in its favor. Anderson v. Liberty Lobby, 477 U.S. 242 (1986). Summary judgment is inappropriate if, after resolving all ambiguities and drawing all inferences against the moving party, there remains a dispute about a material fact "such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248.
Furthermore, courts must be "particularly cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is in question." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). Courts must undertake a careful review of affidavits and depositions for circumstantial evidence that, "if believed, would show discrimination." Id. Nonetheless, to survive a motion for summary judgment, "a plaintiff must provide more than conclusory allegations of discrimination." Id.
C. Claims for Failure to Promote
1. Title VII's Time Period Limitation for Failure to Promote Claims
Under Title VII, individuals claiming discrimination for discrete discriminatory acts, such as failure to promote, must file a discrimination charge with the EEOC within 300 days of the date of the alleged incident of discrimination or retaliation.*fn13 AMTRAK v. Morgan, 536 U.S. 101, 113 (2002). In Morgan, the Supreme Court held: Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable unlawful employment practice. [Plaintiff] can only file a charge to cover discrete acts that occurred within the appropriate time period. While [plaintiff] alleged that he suffered from numerous discriminatory and retaliatory acts from the date that he was hired through.the date that he was fired, only incidents that took place within the timely filing period are actionable. Because [plaintiff] first filed his charge with an appropriate state agency, only those acts that occurred 300 days before.the day that [plaintiff] filed his charge, are actionable.All prior discrete discriminatory acts are untimely filed and no longer actionable.
AMTRAK v. Morgan, 536 U.S. 101, 114-115 (2002)
Here, Plaintiff filed his EEOC charge on October 14, 2003. Accordingly, Plaintiff's claims for failure to promote that occurred before ...