The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
This is an employment discrimination case that, in large measure, has been previously litigated in administrative proceedings before the New York State Department of Human Rights ("SDHR"). Nevertheless, because those proceedings were not appealed to a state court, Plaintiff Carlton Rouse ("Rouse"), is entitled to reassert his claims here. However, as set forth below, the end result of his present endeavor is destined to be similar to the outcome of his previous efforts. Rouse asserts against his employer, the New York City Department of Corrections ("DOC") and the City of New York and the Commissioner of the DOC, Martin Horn (collectively, "Defendants") claims of (1) racial, marital-status and age discrimination under Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 1981 ("Section 1981"), 42 U.S.C. §1983 ("Section 1983"), the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA"), the New York State Human Rights Law, N.Y. Exec. Law 290, et seq. ("SHRL") and the New York City Human Rights Law, N.Y. Admin Code 8-101, et seq. ("CHRL"); (2) retaliation in violation of Title VII, Sections 1981 and 1983; (3) violations of the Privacy Act of 1974, 5 U.S.C. §§552a (the "Privacy Act"); (4) violations of New York's "whistle-blower" statute, New York Labor Law § 740; and (5) a common law tort claim for intentional infliction of emotional distress ("IIED"). Defendants move for summary judgment on all claims pursuant to Fed. R. Civ. Pro. 56(c). For the reasons that follow, Defendants' motion is GRANTED in part and DENIED in part.
Rouse is a sixty-year-old African American man who is unmarried and a veteran of the Vietnam War. Decl. of Carlton Rouse, dated May 11, 2009 ("Rouse Decl.") ¶1. Rouse has worked for the DOC since 1995, initially in the position of electrician's helper and, since he was promoted in August 2007, in the position of electrician. Id.; Defts.' 56.1 Stmt. ¶29.*fn1
Central to Rouse's claims are his three unsuccessful bids to be promoted to electrician that preceded his ultimately successful attempt in August 2007. First, Rouse was one of eighteen candidates to interview for two provisional electrician positions announced in May 2005 (the "May 2005 Position"). Defts.' 56.1 Stmt. ¶¶ 10-11; Decl. of Courtney Stein, dated March 23, 2009 ("Stein Decl."), Ex. G. Ronald Bixby, Rouse's supervisor at DOC and the one who conducted the interviews, testified that at the time of his interview Rouse had taken and failed the most recent civil service examination for the position and at the interview answered correctly 2.5 out of the 5 technical questions he was asked. Decl. of Ronald Bixby, dated March 23, 2009 ("Bixby Decl."), ¶20. Rouse was not selected for the May 2005 Position, which went instead to Michael Coffey and Kevin Brown, each of whom had previously passed a civil service examination for the position of electrician. Id. at ¶¶ 12-13. Coffey and Brown are married, white men, and at the time of the interview Coffey had fewer years of service with DOC than did Rouse. Rouse Decl. ¶ 10.
Second, Rouse was one of sixteen candidates to interview for four provisional electrician positions with the DOC's Fire and Safety Task Force announced in October 2005 (the "October 2005 Position"). Defts' 56.1 Stmt. ¶15; Stein Decl. Ex. J. At the time Rouse had not passed the civil service examination, but at this interview he answered 3.5 out of 5 technical questions correctly. Defts.' 56.1 Stmt. ¶15. Following the interviews, Bixby recommended four candidates for the position, three of whom are white and one of whom is Hispanic: (i) Charles Dwyer, who had worked for DOC for 18 years, and answered 4 out of 5 technical questions correctly; (ii) Philip Pellegrino, who had worked for DOC for 16 years, and answered all five of the technical questions correctly; (iii) Jose Gonzalez, who had worked for DOC for 8 years and was, according to Bixby "very familiar with fire alarm systems"-a fact that Rouse disputes; and (iv) Sergey Ilin, who answered zero technical questions correctly and had worked for DOC only 14 months, but who had passed a previous civil service examination. Defts.' 56.1 Stmt. ¶17; Pls' 56.1 Stmt. ¶17; Stein Decl. Ex. J. Bixby also testified that qualitative considerations factored into his recommendation; for example, Dwyer was a "good employee, helpful, knowledgeable," and Ilin was "highly regarded" and "very professional." Bixby Decl. ¶24. The four candidates recommended by Bixby were selected for the position, and Rouse was not.
Third and finally, Rouse was one of twelve candidates to interview for a single provisional electrician position in September 2006 (the "September 2006 Position). Stein Decl. Ex. M. In this interview Rouse answered 4 out of 5 technical questions correctly. Id. Bixby recommended Rouse and two other candidates, each white men, for the position: (i) Peter Mulligan, who answered all 5 technical questions correctly, and (ii) Arthur Dechecchi, who had been working for DOC for 16 years. Defts.' 56.1 Stmt. ¶ 21. Bixby's recommendation stated that Mulligan and Dechecchi had "professional mannerisms" but did not so state with respect to Rouse. Stein Decl. Ex. N. Mulligan was ultimately selected for the position. Id. at Ex. O.
Bixby recalls that during one interview Rouse offered only short, quick answers and appeared disgruntled and aloof while slouching in his chair. Bixby Decl. ¶28. In another interview Bixby recalls Rouse stating that he did not want to leave the Special Services Division ("SSD"), even though the position for which he was interviewing could have required him to do so. Id. Bixby's recollections are consistent with those of Gregory McLaughlin, the warden in charge of SSD during most of the relevant time period. McLaughlin testified that he recalled that during one interview Rouse became argumentative and tried to prove Bixby wrong about a technical issue. Decl. of Gregory McLaughlin, dated March 13, 2009 ("McLaughlin Decl.") ¶16. With respect to that incident, Rouse states he believes Defendants are trying to use his "passion for electrical work" against him by "paint[ing] [him] as argumentative." Rouse Decl. ¶18. In his deposition Rouse referred to one of the interviews at issue as the "one where I was grunting," and acknowledged that he was "quite irritated" and that he "lost all [his] decorum" because McLaughlin made a comment about Rouse's deceased sister that Rouse found insensitive. Transcript of Deposition of Carlton Rouse ("Rouse Tr.") at 122.
Another opening for a provisional electrician position was announced in the spring or summer of 2007, and Rouse interviewed and was selected for the position. Defts.' 56.1 Stmt. ¶26. At the time, he had taken and passed the civil service examination. Id. Pursuant to Rouse's provisional promotion, he was transferred away from SSD to work in the jails. Bixby testified that shortly after his transfer, Rouse's new supervisor called Bixby and stated that was having difficulties with Rouse. Bixby Decl. ¶32. Rouse acknowledges that he was disciplined and ultimately transferred back to SSD after a confrontation with a warden. Pls.' 56.1 Stmt. ¶ 28. In September 2007, Rouse was selected for and given a permanent electrician position that he currently holds. Defts.' 56.1 Stmt. ¶ 29.
On December 5, 2005, Rouse filed a verified complaint with the New York State Division of Human Rights ("SDHR") alleging that in denying him the May 2005 Position the DOC discriminated against him on the basis of his race, marital status, national origin and age in violation of the New York State Human Rights Law, Title VII, and the ADEA. Defts.' 56.1 Stmt. ¶30. On October 27, 2006, Rouse amended his complaint to add alleged claims pertaining to the October 2005 Position. Id. at ¶ 31. The SDHR issued a finding of no probable cause December 29, 2006. Id. at ¶ 31. Thereafter, Rouse successfully applied for the case to be reopened and the SDHR issued a finding of probable cause. Id. at33-35. After a hearing before an administrative law judge ("ALJ"), in June 2008, the ALJ issued an opinion finding that Rouse had not been discriminated against on the basis of race, marital status or national origin and that he had not been retaliated against. Stein Decl. Ex. Z. The ALJ did conclude that DOC had discriminated against Rouse on the basis of age because Bixby had testified at the hearing that Gonzalez was hired over Rouse for the October 2005 Position in part because he was "young, upcoming [and] energetic." Id. Rouse was awarded $10,000 compensatory damages for his claimed emotional distress and $19,600.00 for nine months back pay plus interest. Id.
On May 21, 2008 the Equal Employment Opportunity Commission ("EEOC") issued a right to sue letter to Rouse. Stein Decl. Ex. BB. Plaintiff filed a Notice of Claim on July 9, 2008, and filed the instant action on August 21, 2008.
A motion for summary judgment must be granted if the moving party shows "there is no genuine issue as to any material fact" and it "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In considering a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. 247-48. Summary judgment should be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "A party opposing summary judgment does not show the existence of a genuine issue of fact to be tried merely by making assertions that are conclusory or based on speculation." Major League Baseball Properties, Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008) (internal citation omitted). Rather, he "must come forward with evidence sufficient to allow a reasonable jury to find in [his] favor." Brown, 257 F.3d at 252; see also Fed. R. Civ. P. 56(e) ("When a motion for summary judgment is made and supported as provided in [the] rule, . . . the adverse party's response . . . must set forth specific facts showing that there is a genuine issue for trial.") (emphasis added).
A. Effect of SHDR Proceedings On This Action
Pursuant to New York State Executive Law §297, Rouse is precluded from asserting his state law claims before this Court because his complaint before the SDHR was adjudicated on the merits. N.Y. Executive Law § 297(9) (McKinney 2005); Lewis v. North General Hosp., 502 F.Supp.2d 390, 400 (S.D.N.Y. 2007)(citing Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000)). Section 297 affords a right of action to one who alleges unlawful discrimination, "unless such person had filed a complaint hereunder or with any local commission on human rights," and the SHDR did not dismiss the complaint "on the grounds of administrative convenience [or] untimeliness." N.Y. Exec. Law § 297(9). "When a plaintiff elects to pursue claims of discrimination through administrative proceedings before the [SDHR], § 297(9) poses an 'insuperable jurisdictional bar' to subsequently raising those same claims of discrimination in court." Smith-Henze v. Edwin Gould Services for Children and Families, Officers and Employees, 06 Civ. 3049 (LBS),2006WL 3771092, *3 (S.D.N.Y. Dec. 21, 2006) (quoting Moodie v. Federal Reserve Bank of New York, 58 F.3d 879, 884 (2d Cir. 1995)). As a result of Rouse's election to pursue his state claims before the SDHR, Defendants' motion for summary judgment with respect to those claims is GRANTED.
The doctrines of res judicata or collateral estoppel, which generally prohibit re-litigation of the same claim, do not apply to Rouse's Title VII or ADEA claims because the ALJ's decision was not reviewed by a New York state court. "In Title VII cases, federal courts do not give preclusive effect to state agency decisions unless they have been reviewed in court." Nestor v. Pratt & Whitney, 466 F.3d 65, 73 (2d Cir. 2006) (citing Univ. of Tennessee v. Elliot, 478 U.S. 788 (1986)).*fn2 The Supreme Court extended this holding to cases brought under the ADEA in Astoria Federal Sav. and Loan Ass'n v. Solimino, 501 U.S. 104, 110-11 (1991). Consequently, although state administrative findings may be entered into ...