The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.
Plaintiff Asem Eldaghar ("Plaintiff") asserts claims of (1) discrimination based on national origin in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e et seq., and age in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. §§ 621 et seq.; (2) retaliation in violation of Title VII and the ADEA; and (3) hostile work environment in violation of Title VII and the ADEA. Defendant City of New York Department of Citywide Administrative Services ("Defendant" or "DCAS") now moves for summary judgment on all of Plaintiff's claims. For the reasons stated below, Defendant's motion is granted in part and denied in part.
Unless otherwise noted, the following facts are undisputed and are derived from the parties' Local Civil Rule 56.1 Statements. All inferences have been drawn in favor of Plaintiff.
Defendant is an administrative agency of the New York City government. Among other responsibilities, DCAS supports other New York City government agencies, manages public buildings, and engages in land use planning.
Plaintiff was employed on a probationary basis as a City Planner in the DCAS Division of Real Estate Services ("DRES") from February 5, 2001 until his termination on August 17, 2001. Plaintiff is of Egyptian national origin and he was 44 years old during his DCAS employment. (See Pl.'s Resp. to Def.'s 56.1 Stmt. ¶ 2; D.E. 50.)
Plaintiff earned a Bachelor's Degree in Architecture and a Master's Degree in Urban Planning. (See Pl.'s Resp. to Def.'s 56.1 Stmt. ¶¶ 3-4.) He took and passed the civil service examination for the position of City Planner. (See id. ¶ 7.) Plaintiff underwent (1) a September 2000 preliminary interview with Kristi Knecht ("Knecht"), DRES Director of Land Use Planning, and (2) a January 2001 interview with Knecht; Randal Fong ("Fong"), DCAS Assistant Commissioner; and Helen John ("John"), DRES Director of Personnel and EEO Counselor. (See id. ¶¶ 8-9.) Knecht and Fong decided to hire Plaintiff immediately following the January 2001 interview, and Plaintiff commenced his probationary employment with DCAS on February 5, 2001. (See id. ¶¶ 10-12.)
C. ACTS OF DISCRIMINATION
Plaintiff alleges that during the course of his employment, he suffered numerous instances of discrimination, including but not limited to, (1) oral comments about his national origin and age, (2) "unwarranted unsatisfactory ratings in his probationary reports," and (3) deviations from Defendant's policies and procedures. (See Pl.'s Resp. to Def.'s 56.1 Stmt. ¶ 20.)
Plaintiff alleges that his supervisors made the following comments about his age and national origin: First, shortly after Plaintiff completed a mandatory orientation program, Knecht, Plaintiff's direct supervisor, allegedly commented that it was time for Plaintiff to "jump on the plate and . . . be part of the team." (Pl.'s Resp. to Def.'s 56.1 Stmt. ¶¶ 17-18.) Second, Plaintiff alleges that shortly after this comment, Knecht and Fong stated to Plaintiff that "younger people are better than older people at using computers." (Id. ¶ 23.) Third, Knecht allegedly answered a question posed by Plaintiff with the dismissive response that "even Matthew knows this," a reference to a college student intern then employed by DCAS. (Id.) Fourth, Knecht asked him about historical sites to visit in Egypt. (See Kousoulas Decl. Eldaghar Aff. ¶ 10, D.E. 49.) Fifth, in or about July 2001, Fong overheard Plaintiff speaking with two individuals in Arabic, and allegedly asked what language Plaintiff was speaking and whether the other individuals were also from Egypt. (See Pl.'s Resp. to Def.'s 56.1 Stmt. ¶ 24.) Sixth, Plaintiff alleges that Knecht yelled at him: "Don't you people understand? How many times should I explain to you?" (Id. ¶ 33.)
2. Unwarranted Unsatisfactory Ratings
Plaintiff argues that the criticism contained in six probationary reports and other memoranda was unwarranted.*fn1 These performance reviews thoroughly document Defendant's dissatisfaction with Plaintiff's job performance. However, Plaintiff disputes the accuracy of some of the information contained in the probationary reports and other memoranda. (See Pl.'s Mem. 6-9, D.E. 48.) Plaintiff thus argues that the criticism contained therein was unwarranted. (Id.)
3. Deviations from DCAS Policy
Plaintiff argues that DCAS personnel deviated from DCAS policy both before and after his termination. He alleges that (1) he never received "a formal warning letter" that his employment could be terminated (Pl.'s Resp. to Def.'s 56.1 Stmt. ¶ 28); (2) he did not receive the negative probationary reports dated July 2, 2001 and August 2, 2001 until after he filed a discrimination complaint with the New York State Division of Human Rights ("SDHR") (see id. ¶¶ 49, 50, 52; Pl.'s 56.1 Counterstmt. ¶¶ 64, 66-68); and (3) Plaintiff's requests for restoration to the civil service list for City Planners were denied by the DCAS Director of Personnel, and not, as required, by the Deputy Commissioner for Citywide Personnel Services (see Pl.'s 56.1 Counterstmt. ¶¶ 97-98).*fn2
D. TERMINATION AND SUBSEQUENT EVENTS
On August 17, 2001, DCAS terminated Plaintiff's probationary employment. (See Pl.'s Resp. to Def.'s 56.1 Stmt. ¶ 60.) Knecht testified at her deposition that in or about May or June 2002, DCAS hired Matthew Berk ("Berk") as a replacement for Plaintiff. (See Soni Decl. Ex. J 57; see also Kousoulas Decl. Ex. E 7, 32.)
Following his termination, Plaintiff requested restoration to the civil service list for City Planners on two occasions. Both restoration requests were denied. (See Pl.'s Resp. to Def.'s 56.1 Stmt. ¶¶ 62, 64-65; Soni Decl. Compl. Ex. I, Exs. CC & DD.)
Following his termination, Plaintiff also filed a SDHR complaint. (See Pl.'s Resp. to Def.'s 56.1 Stmt. ¶ 76; Soni Decl. John Aff. ¶ 13, Exs. KK & LL.) SDHR found "insufficient evidence to support [Plaintiff's] allegations of discrimination based on age and national origin." (Soni Decl. Compl. Ex. F 1; see also Pl.'s Resp. to Def.'s 56.1 Stmt. ¶ 79.) Plaintiff sought review of the SDHR determination with the United States Equal Employment Opportunity Commission ("EEOC"). (See Pl.'s Resp. to Def.'s 56.1 Stmt. ¶ 80.) The EEOC adopted the findings of the SDHR, dismissed Plaintiff's charge, and issued a right to sue letter. (See Soni Decl. Compl. Ex. H.)
On November 15, 2002, Plaintiff timely commenced this action. Defendant subsequently moved for summary judgment. Plaintiff opposes the summary judgment motion.
A. SUMMARY JUDGMENT STANDARD
Summary judgment is properly granted where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007). The substantive law governing a case will determine which facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.; Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003).
The burden of demonstrating the absence of any genuine issue of material fact rests with the moving party. See Koch v. Town of Brattleboro, 287 F.3d 162, 165 (2d Cir. 2002)(citing Celotex Corp., 477 U.S. at 323). Once a motion for summary judgment is made and supported, "the non-moving party must set forth specific facts showing that there is a genuine issue for trial." Id. (internal quotation marks and citation omitted); Fed. R. Civ. P. 56(e)(2). All inferences must be drawn in favor of the non-moving party. See Liberty Lobby, 477 U.S. at 255.
"[S]ummary judgment is ordinarily inappropriate" in an employment discrimination case "where intent and state of mind are in dispute." Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000). To grant summary judgment in an employment discrimination case, "[t]here must either be a lack of evidence in support of the plaintiff's position, or the evidence must be so overwhelmingly titled in one direction that any contrary finding would constitute clear error." Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998) (citations omitted).
Plaintiff claims national origin and age discrimination based on (1) his termination; (2) Defendant's denial of an opportunity to transfer to a different DCAS division in lieu of termination (the "transfer denial"); (3) Defendant's refusals to restore Plaintiff's name to the civil service list for City Planners (the "restoration refusals"); and (4) alleged disparate scrutiny of Plaintiff's work performance by his supervisors (the "disparate scrutiny"). ( See Pl.'s Mem. 10-11.)
The Court grants summary judgment to Defendant on the discrimination claims based on the restoration refusals and the disparate scrutiny. The Court denies summary judgment on the discrimination claims based on Plaintiff's termination and the transfer denial.
1. Discrimination Framework
Title VII and the ADEA protect against discrimination in the employment context. See 42 U.S.C. § 2000e-2(a)(1); 29 U.S.C. § 623 (a)(1). Courts analyze Title VII and ADEA claims of discrimination under the "burden shifting framework" set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), and its progeny. See Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000).
Under that framework,  a plaintiff must satisfy the minimal burden of making out a prima facie case of discrimination;  the burden then shifts to the defendant to produce a legitimate, nondiscriminatory reason for its actions; and  the final burden rests on the plaintiff to prove not only that the proffered nondiscriminatory reason was pretextual but also that the defendant discriminated against the plaintiff. Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 91 (2d Cir. 2001) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)).
To establish a prima facie case of national origin or age discrimination, a plaintiff must show that: (1) he belonged to a protected class or age group; (2) he was qualified for the position; (3) he was subject to an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. See Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003) (internal quotation marks and citation omitted).
a. Member of a Protected Class and Age Group
It is undisputed that Plaintiff is of Egyptian national origin and therefore is a member of a protected class. It is further undisputed that Plaintiff was forty-four years old in 2001, and therefore was within the protected age group. See Tarshis, 211 F.3d at 35 ("The ADEA prohibits discrimination on the basis of age against an individual aged 40 or older."). Accordingly, the Court finds that Plaintiff satisfies the first element of his prima facie case with respect to all of the discrimination claims.
b. Qualified for the Position
Plaintiff held a Bachelor's Degree in Architecture and a Master's Degree in Urban Planning, took and passed the civil service examination for the position of City Planner, and underwent a preliminary interview in September 2000 followed by another interview in January 2001. To be qualified, "all that is required is that the plaintiff establish basic eligibility for the position at issue." Slattery, 248 F.3d at 92; see also Owens v. New York City Housing Auth., 934 F.2d 405, 409 (2d Cir. 1991) (a plaintiff must demonstrate only "that she possesses the basic skills necessary for performance of the job") (internal quotation marks and citations omitted).*fn3 Accordingly, the Court finds that Plaintiff satisfies the second element of his prima facie case with respect to all of the discrimination claims. See Slattery, 248 F.3d at 92 ("[W]here discharge is at issue and the employer has already hired the employee, the inference of minimal qualification is not difficult to draw.").
c. Adverse Employment Actions
Plaintiff argues that the following actions constitute adverse employment actions: (1) his termination; (2) the transfer denial; (3) the restoration refusals; and (4) the disparate scrutiny.*fn4 (See Pl.'s Mem. 10-11.) Defendant concedes that termination constitutes an adverse employment action, but contests the remaining actions. (See Def.'s Mem. 10-13.)
An adverse employment action must negatively affect an individual's "compensation, terms, conditions, or privileges of employment." 42 U.S.C. § 2000e-2. However, an adverse employment action must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Terry, 336 F.3d at 138 (internal quotation marks and citation omitted). Examples of adverse employment actions include "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities or other indices . . . unique to a particular situation." Id. (internal quotation marks and citations omitted). "Generally, the ADEA, like Title VII, protects individuals from actions injurious to current employment or the ability to secure future employment." Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (emphasis in original). The Court thus finds that the transfer denial and the restoration refusals constitute adverse employment actions.
However, the Court finds that the disparate scrutiny does not constitute an adverse employment action. Plaintiff alleges that "he was subjected to greater scrutiny and different evaluation standards than his younger, American colleagues." (Pl.'s Mem. 11.) Such disparate scrutiny, by itself, does not constitute an adverse employment action because it did not affect the compensation, terms, conditions or privileges of Plaintiff's employment. However, the Court will consider the disparate scrutiny and Plaintiff's other allegations of disparate treatment in the context of Plaintiff's remaining discrimination claims.
Cf. Cross v. N.Y. City Transit Auth., 417 F.3d 241, 250 (2d Cir. 2005) (finding that a training disparity may establish an inference of discriminatory intent driving the plaintiff's demotion); Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (holding that "[a] showing of disparate treatment . . . is a recognized method of raising an inference of discrimination for purposes of making out a prima facie case").
Accordingly, the Court finds that Plaintiff satisfies the third element of his prima facie case with respect to (1) his termination, (2) the transfer denial, and (3) the restoration refusals, but not the disparate scrutiny.
d. Circumstances Giving Rise to an Inference of Discrimination
The Court finds that Plaintiff's termination and the transfer denial, but not the restoration refusals, occurred under circumstances giving rise to an inference of discrimination. Therefore, Plaintiff satisfies the fourth element of his prima facie case with respect to these two discrimination claims.
i. Plaintiff's Termination
The Court finds that Plaintiff's termination occurred under circumstances giving rise to an inference of discrimination. "The fourth element of the prima facie case may be satisfied by a showing that the plaintiff's position remained open after he was discharged, or that he was replaced by someone outside his protected class." Tarshis, 211 F.3d at 36. In May or June 2002, Defendant hired Berk as a replacement for Plaintiff. (See Soni Decl. Exs. J 57; Kousoulas Decl. Ex. E 7, 32). Berk is of American national origin and was twenty-two years old at the time of hiring. (Kousoulas Decl. Eldaghar ...