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Richards v. NYC Dep't of Homeless Services

March 15, 2009


The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge


Plaintiff, a former employee of Defendant New York City Department of Homeless Services, filed the instant action alleging discrimination on the basis of sex and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e et seq. ("Title VII"), and related state law. Plaintiff filed the complaint and the amended complaint pro se, and subsequently retained counsel. Defendant filed the instant motion, seeking summary judgment on all claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth more fully below, Defendant's motion is granted in its entirety.


I. Plaintiff's Employment History

The following facts are undisputed or, when disputed, it is so indicated or they are taken in a light most favorable to non-moving Plaintiff. Plaintiff began working for Defendant as a Community Assistant on September 5, 1993.*fn1 (Def.'s 56.1 ¶ 1.) During his tenure with Defendant, Plaintiff worked at several locations throughout New York City. (Def.'s 56.1 ¶¶ 12-14, 23.) It is undisputed that Plaintiff has an extensive history of disciplinary violations and proceedings.*fn2 In 1995, a co-worker alleged that Plaintiff sexually harassed her. (Klepfish Decl., Ex. A.) These charges were referred to an investigator at the Equal Employment Opportunity Commission ("EEOC"). There are no further details as to the ultimate resolution of the allegations. (Id.)

In 1998, Defendant brought Disciplinary Charges and Specifications against Plaintiff for violations of Defendant's Code of Conduct ("Code"), including excessive absences, tardiness, disorderly behavior, and striking a supervisor. (Klepfish Decl., Ex. B.) Defendant later filed similar charges against Plaintiff, which were combined into one disciplinary proceeding before an Administrative Law Judge ("ALJ"). (Klepfish Decl., Ex. A.) The ALJ found Plaintiff guilty and recommended a thirty-day suspension without pay. (Klepfish Decl., Ex. A.) Plaintiff did not appeal this determination and settled with the company, agreeing to a ten-day suspension without pay. (Id.) It appears that Defendant brought additional charges against Plaintiff around this time; however, there is no further information as to the nature of the charges or their ultimate resolution. (Id.)

On January 3, 2002, Defendant brought Disciplinary Charges and Specifications against Plaintiff for insubordination, derogation of duties, threatening a supervisor, use of offensive language, intoxication while on duty, sleeping while on duty, and disorderly conduct. (Klepfish Decl., Ex. C.) The conduct giving rise to these charges occurred while Plaintiff worked at the Linden Family Residence. (Klepfish Decl., Ex. D.) On January 8, 2002, while the charges were pending, Defendant transferred Plaintiff from the Linden Family Center to a new work location, Flatlands Family Reception ("Flatlands"). (Klepfish Decl., Ex. G.) On January 29, 2002, Plaintiff appeared before an ALJ, who found him guilty of insubordination and the use of offensive language, but found insufficient evidence for the remaining charges. (Id.) The ALJ recommended a fifteen-day suspension without pay. (Id.) Plaintiff did not appeal this decision, which was then affirmed by Commissioner Linda Gibbs. (Klepfish Decl., Ex. E.) Defendant suspended Plaintiff without pay from November 12, 2002 to November 26, 2002. (Klepfish Decl., Ex. F.)

During Plaintiff's tenure at the Flatlands, his immediate supervisor, Doret Clarke-Adonri ("Adonri"), and the Flatlands' Director, Ellen Scolnik ("Scolnik") wrote him up on numerous occasions for a variety of violations of the Code.*fn3 (Klepfish Decl., Ex. J.) The bulk of the allegations occurred in September and November of 2003. (Id.) On November 12, 2003, Plaintiff requested a transfer from Flatlands, indicating that the "[l]ocation is causing stress." (Klepfish Decl., Ex. H.) On December 31, 2003, Defendant granted his request, transferring him to the Powers Family Reception, noting that the transfer was granted in conjunction with pending disciplinary proceedings. (Klepfish Decl., Ex. I.) Notably, Plaintiff's transfer request made no mention of sexual harassment. (Klepfish Decl., Ex. H.)

On January 12, 2004, Defendant brought Disciplinary Charges and Specifications against Plaintiff for threatening Adonri, insubordination, numerous absences without leave, derogation of duties, use of offensive language, disorderly conduct, improper use of Defendant's facilities, and sleeping while on duty. (Klepfish Decl., Ex. K.) These charges arose out of conduct that occurred in Fall 2003, while Plaintiff worked at Flatlands. (Id.) Additional charges were brought against Plaintiff and consolidated with these charges. (Klepfish Decl., Ex. A.) Plaintiff participated in an Informal Conference before an Informal Conference Leader. (Klepfish Decl., Ex. L.) On February 5, 2004, the Informal Conference Leader, recommended that Defendant terminate Plaintiff's employment. (Id.) To avoid a formal proceeding before an ALJ, Defendant and Plaintiff signed a settlement dated April 15, 2004 ("Settlement Agreement") in which Plaintiff agreed that he: (i) he violated Defendant's Code of Conduct as charged, (ii) would pay a monetary fine equivalent to thirty days of pay, (iii) would work in probationary capacity for one year, subject to extension for tardiness or absenteeism, and (iv) would be subject to termination for any further Code violations. (Klepfish Decl., Ex. M.)

In early 2005, Defendant initiated an investigation into allegations of excessive absenteeism and tardiness without prior permission. (Klepfish Decl., Ex. R.) The investigation included a review of Plaintiff's time records from May 2004 to August 2005. Plaintiff was on probation during the majority of this period pursuant to the Settlement Agreement. Plaintiff accrued 134 instances of approved and disapproved absences and tardiness, and five instances of abandonment. The investigators interviewed Plaintiff, who was accompanied by a union representative. Plaintiff failed to provide adequate documentation of some of his excuses for his absences. Due to his absences, his probation period was extended to at least October 7, 2005, pursuant to Paragraph 3 of the Settlement Agreement. The investigators recommended termination, which option Defendant exercised on September 23, 2005. (Klepfish Decl., Ex. T.)

II. Alleged Unlawful Conduct and Procedural History

On February 4, 2004, while disciplinary charges arising out of Plaintiff's tenure at Flatlands were before the Informal Conference Leader (who ultimately recommended his termination), Plaintiff filed a complaint with the New York State Division of Human Rights ("DHR"). (Klepfish Decl., Ex. O.) Plaintiff alleged Adonri had sexually harassed and retaliated against him. (Id.) Specifically, he alleged that she touched his buttocks, invaded his personal space, and told him that he needed "a real woman like her." (Id.) When he refused to submit to her advances, she allegedly retaliated against him by "writing him up" without cause. (Id.) Additionally, he alleged that, after his transfer from her facility to the Powers Family Reception, she "called up [his] new work site and tried to spread unfavorable rumors about [him]." (Id.) He stated that the last date upon which any alleged discrimination occurred was January 1, 2004. (Id.) The DHR forwarded his complaint to the EEOC for dual filing purposes. (Klepfish Decl., Ex. P.) The DHR conducted an investigation finding that Plaintiff's "disciplinary troubles commenced long before" he began reporting to Adonri. (Klepfish Decl., Ex. Q.) The investigation was "inconclusive" as to whether Plaintiff's allegations were true. Adonri denied plaintiff's allegations. One witness, Nicole Mack, stated that she thought Adonri was "interested in" Plaintiff; whereas, another witness, Quinyanna Watkins provided testimony that disputed this belief. Finally, a third witness, Robert Wiggins, had no knowledge of Adonri making any sexual advances towards Plaintiff. (Id.) The investigation found no evidence of retaliation, noting that the "disciplinary citations were specific, well-documented and serious." (Id.) The EEOC adopted the investigation, report, and recommendations of the DHR, dismissing Plaintiff's complaint in its entirety. (Klepfish Decl., Ex. U.)

On December 23, 2005, Plaintiff filed the instant action, pro se. (Compl., Docket Entry No. 1.) Plaintiff filed an amended complaint, pro se, on June 16, 2006. (Am. Compl., Docket Entry No. 15.) The court construes the Amended Complaint to allege discrimination on the basis of sex,*fn4 in the form of adverse employment action, sexual harassment, and retaliation. The court construes the sexual harassment claim to encompass both quid pro quo and hostile work environment theories. With respect to sexual harassment, Plaintiff reiterated the allegations contained in his complaint to the DHR, and additionally alleged that Adonri: (i) disapproved of time he claimed he worked, (ii) denied him overtime, (iii) repeatedly wrote him up without cause, (iv) assigned him the least favorable schedule, and (v) assigned him the least favorable tasks, including cleaning the bathrooms. Ultimately, ...

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