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Howe v. City of New York

September 29, 2010

ROYDEL HOWE, PLAINTIFF,
v.
THE CITY OF NEW YORK ET AL. DEFENDANTS.



MEMORANDUM OPINION AND ORDER

Following his receipt of a Notice of Suit Rights from the United States Equal Employment Opportunity Commission ("EEOC'), plaintiff Roydel Howe ("Plaintiff"), proceeding pro se, commenced this action on June 27, 2007. Pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 ("ADEA"), Plaintiff asserts claims of failure to promote, unequal terms and conditions of employment, and hostile work environment, against the City of New York and the New York City Administration for Children's Services ("ACS" and, collectively, "Defendants"). Plaintiff also alleges that Defendants' alleged mistreatment of him was retaliatory. In Plaintiff's Charge of Discrimination filed with the EEOC, he asserted that the alleged discrimination was based on race, color, sex, national origin, and age.*fn1 The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331.

Now before the Court is Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. The Court has reviewed thoroughly all of the parties' submissions in support of and in opposition to Defendants' motion. For the reasons explained below, Defendants' motion for summary judgment is granted in its entirety.

BACKGROUND

The following facts are undisputed unless characterized as allegations.*fn2 In his complaint, Plaintiff states that his race and color are "black," his national origin is "Jamaica, W.I.," and his age is "65." (Compl. 3.) Plaintiff is currently an Associate Accountant for ACS, and has been at ACS since at least July, 1995. (Barnett Decl. Ex. B ("Howe Dep.") 189:17.) In October 2001, Plaintiff's department moved to a new location at 66 John Street, in Manhattan, New York. (Howe Dep. 106:18.) Around that time, Bernard Gold became Plaintiff's immediate supervisor (id. 108:10). Gold was supervised by Larry Thomas. (Id. 131:2.) Following the move, Plaintiff was seated next to a co-worker named Trevor Simpson. (Id. 132:15.) Plaintiff's allegations concern incidents that occurred after his move to the office at 66 John Street (id. 92:25) and are principally concerned with the behaviors of Simpson and Gold (see Compl.).

Plaintiff alleges that Gold and Simpson "created: inhumane, unbearable, fearful, violent and hostile working conditions, and workplace environment[.]" (Compl. Ex. C ¶ 5.) Specifically, Plaintiff testified at his deposition that Simpson talks constantly, takes medication and shakes a bottle containing his medication, mumbles to himself, sometimes gets angry and yells at co-workers or hits his desk, and refers to people in a way that is "less than what a professional person should do." (Howe Dep. 133:15--134:5.) Plaintiff also stated that Simpson had told him to "drop dead, you foolish ass." (Id. 136:14.) Plaintiff alleges that Simpson's behavior interferes with his work by making him unable to "concentrate" and "function." (Id. 143:9--13.) Plaintiff further alleges that Simpson's behavior has been "ongoing" since October 2001. (Id. 132:25, 134:25.)

Plaintiff alleges that he complained about Simpson's behavior verbally to both Gold and Thomas, who informed Plaintiff that they would "make some changes." (Howe Dep. 136:19--137:6.) Plaintiff alleges that he had complained about Simpson's behavior "continuously" (id. 139:17) up to the date of his deposition (id. 139:4), and that he had begun to discuss these issues with his union around 2002 (id. 140:2). Plaintiff further alleges that his complaints regarding Simpson were not adequately addressed. Regarding his supervisor Gold's alleged inaction, Plaintiff testified that "when I take complaints to him, he does nothing about my complaints" (id. 152:24--153:1). In addition, Plaintiff stated that "Mr. Gold never attempted to correct Mr. Simpson in any way whatsoever that I'm aware of and every means and occasion Mr. Gold gets he would seek to correct me[.]" (Id. 159:17.) Gold testified at his deposition, however, that "anytime that I or we . . . we including my supervisor, received complaints about any improper behavior that may have occurred or was alleged to have occurred, we did look into it and we attempted to address it . . . by trying to look into the specifics, the validity of the complaints." (Pl.'s Affirmation Ex. R ("Gold Dep.") 2--8.)

Plaintiff was given the opportunity to change his work station. In response to his complaints, Plaintiff was moved to a desk "five feet" from where he had been (Howe Dep. 138:9), but that did not remedy the situation because Simpson continued his behavior in Plaintiff's vicinity (id. 138:12). Thomas told Plaintiff that he was "free to move" and could "choose any seat" he wanted, but Plaintiff chose to "retain [his] seat against the wall." (Id. 144:4-7.)

Plaintiff also alleges that Gold treated him differently from the other two individuals in his department, Simpson and Orphia Crump ("Crump"). Plaintiff alleges that Gold "demanded more time in the field from me, but the other workers weren't putting in work at that time going to the field." (Howe Dep. 150:9.) Plaintiff alleges that he "didn't see [Simpson] putting in any field reports." (Id. 150:17.) Regarding his and Crump's field visits, Plaintiff testified that they both sometimes go to the field three or four days a week, or not at all. (Id. 151:10.) Plaintiff testified at his deposition that Simpson is African-American and, in 2001, was in his "high 40s to low 50s." (Id. 135:23, 136:7.) In addition, Plaintiff testified that Crump is African-American, from Barbados, and "maybe in her 50s." (Id. 152:13-20.)

Plaintiff acknowledges that Gold sent memos to the three individuals in the department, but alleges that "while [Gold] may address it to the three of us, me alone is intended. . . . That's my belief." (Howe Dep. 153:6.) Plaintiff testified that Gold's behavior towards him was "oftentimes disturbing" (id. 155:24), specifically because he "took away my computer that I built" (id. 155:24), asked him to "write my time . . . while the other two did not have to do that" (id. 156:11), and "took away my printer I have on my desk and caused my walking distance to the printer to be overburdensome [sic] and it causes me much hardship" (id. 156:19). Gold testified that he was not aware of someone removing Plaintiff's computer (Gold Dep. 1C-13), and does not remember telling anyone to remove Plaintiff's printer (id.). Additionally, Gold testified that the printer on Plaintiff's desk was "unauthorized equipment" (id.) and it was removed because "just like everybody else, [Plaintiff was] supposed to use the network printers" (id. 1C-13--1C-14).

Plaintiff alleges that he is "the only employee [in his department] who was never given a meritorious increase or job promotion." (Compl. Ex. D ¶ 33.) Plaintiff asserts that he "sent out job applications for flyer positions . . . but was never offered any job interview - not even one." (Id. ¶ 36.) At his deposition, with regard to his failure to promote claim, Plaintiff testified only that "I went to [Thomas] asking [Thomas] for a job. The interviewed [sic] continued for two years until we start making appointment and it was never kept." (Howe Dep. 126:23.)

Plaintiff additionally alleges that he received two e-mails from Gold criticizing his performance as retaliation for "my correspondences to him, plus the Union was calling him, and he was aware that I sent correspondences to many other Responsible Personnel." (Compl. Ex. D ¶ 13.) The first e-mail that Plaintiff refers to specifically in his Complaint is dated August 10, 2006. In it, Gold states, in reference to a project that Plaintiff was working on:

Your performance in this project has failed to meet job expectations and is unacceptable. You have had two months to do this. Others in your unit have already submitted time and leave analyses for several programs with many employees and you have not submitted the analysis for the one program . . . with only five employees. (Pl.'s Affirmation Ex. F8.) The second e-mail that Plaintiff specifically characterizes as discriminatory is dated November 16, 2006, and was also written by Gold. It states:

I must, once again, bring to your attention another example of your failure to perform your work assignments in an acceptable and timely manner . . . Due to your lethargic performance on previous similar assignments, I assigned you the fewest number of employees whose accrued time needed to be calculated. In spite of this, you lagged behind the other workers in the unit in completing the assignment and, in fact, did not complete it . . . This will, of course, be considered during your annual performance evaluation.

(Pl.'s Affirmation Ex. H2.) Gold testified at his deposition that "Mr. Howe had a history of being very tardy in his work ...


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