The opinion of the court was delivered by: John G. Koeltl, District Judge
MEMORANDUM OPINION AND ORDER
The plaintiff, Darrell Sims, brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); 42 U.S.C. § 1981; and the Administrative Code of the City of New York § 8-101 et seq. (the "NYCHRL"), against the defendant, the City of New York. The plaintiff alleges (1) discrimination claims on the basis of race and gender arising out of the plaintiff's alleged non-promotion and reassignment; and (2) a hostile work environment claims based on race.*fn1
The defendant moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing the Complaint in its entirety.
At the outset, the Court notes that the plaintiff did not specify which theories of recovery--hostile work environment and discrimination--were being asserted under which statutes--Title VII, § 1981, and the NYCHRL. Accordingly, each claim is analyzed under each statute.
The standard for granting summary judgment is well established. This Court may not grant summary judgment unless "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 judgment as a matter of law." Fed. R. Civ. P. 56(c)(2); see also Matican v. City of New York, 524 F.3d 151, 154 (2d Cir. 2008); Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d Cir. 2006). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them." Gallo v. Prudential Residential Servs. Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994). The substantive law governing the case will identify only those facts that are material and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Carvel v. Franchise Stores Realty Corp., No. 08 Civ. 8938, 2009 WL 4333652, at *12 (S.D.N.Y. Dec. 1, 2009).
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. T.R.M. Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its initial burden of showing a lack of a material issue of fact, the burden shifts to the nonmoving party to come forward with "specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible...." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993) (internal citation omitted); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases); Carvel, 2009 WL 4333652, at *12.
The following facts are taken from the evidence submitted to the Court and are construed in the light most favorable to the plaintiff. All facts are undisputed unless otherwise noted.
The plaintiff is an African-American male born in 1955. (Def. 56.1 Stmt. ¶ 1.) He has master's degrees in both architecture and real estate development and is a registered architect in New York and Ohio. (Def. Ex. C.)
The plaintiff began his employment with the New York City Department of Housing Preservation and Development ("HPD" or "Agency") on August 12, 1980, as an engineering technician. (Def. 56.1 Stmt. ¶ 2.) The plaintiff was promoted to Superintendent of Construction in 1986 after taking the Civil Service Promotional Exam. (Def. 56.1 Stmt. ¶ 4.) In 1992, the plaintiff applied for a position as Director of the Article 8A Loan Program Technical Services Unit ("Unit"), and in January of 1993 he was appointed Director of the Unit. (Def. 56.1 Stmt. ¶¶ 6-7; Pl. Ex. 2A). The Article 8A Loan Program helps eliminate urban blight by providing low interest loans to perform needed work related to the cure of housing code violations. (Def. 56.1 Stmt. ¶¶ 8-9.)
The plaintiff received at least twelve letters of commendation between 1991 and 2004 for his work with the Article 8A Loan Program. (Pl. Ex. 2A footnote 7.)
In or about March 1997, the Assistant Commissioner of the Division of Architecture, Construction and Engineering ("DACE"), Anthony D'Urso, created a new position: Director of Technical Services for Development Programs. (Def. 56.1 Stmt. ¶ 14.) The plaintiff applied for this position, but Joseph Canton, a white male, was appointed instead. (Def. 56.1 Stmt. ¶¶ 15-16.)
In or about 2000, Mr. D'Urso retired as Assistant Commissioner. (Def. 56.1 Stmt. ¶ 20.) The plaintiff applied for this position, but Timothy Joseph was appointed instead. (Def. 56.1 Stmt. ¶ 21; Pl. 56.1 Stmt. ¶ 20.) The defendant claims that Mr. Joseph is African-American. (Def. 56.1 Stmt. ¶ 22; Joseph Decl. Jan. 29, 2010 ¶ 2.) The plaintiff claims that Mr. Joseph is Caribbean-American. (Pl. 56.1 Stmt. ¶ 22.)
In or about 2002, Mr. Canton retired as Director, and William Rosado temporarily took over the responsibilities until a new Director could be appointed. (Def. 56.1 Stmt. ¶¶ 23-24.) The defendant claims that Mr. Rosado is Hispanic-American. (Def. 56.1 Stmt. ¶ 25.) The plaintiff denies this, but admits no personal knowledge of what ethnicity Mr. Rosado is. (Pl. 56.1 Stmt. ¶ 25.)
On October 29, 2002, a job vacancy notice was posted for Director of Technical Services for Development Programs. (Def. 56.1 Stmt. ¶ 27.) The plaintiff applied for the position and was interviewed by Mr. Rosado. (Def. 56.1 Stmt. ¶ 28-29.) The vacancy was not filled due to a freeze on hiring and promotions, but Michael Popper was assigned as Acting Director until the position was re-opened to be permanently filled. (Def. 56.1 Stmt. ¶¶ 32-33.) Mr. Popper did not receive a pay increase for this new position. (Joseph Decl. Jan. 29, 2010 ¶ 13.) Mr. Popper is a white male. (Def. 56.1 Stmt. ¶ 34.)
The plaintiff was offered a position as Director of Construction Management Programs. (Def. 56.1 Stmt. ¶ 35.) The plaintiff turned down the offered position on September 29, 2003. (Pl. Ex. 15.) The plaintiff states he turned down the offered position because it carried increased responsibility with no corresponding increase in compensation. (Pl. Ex. 15; Sims Dep. 45:7-25.)
The plaintiff believes that his race was considered in denying him the promotion to Acting Director. (Def. 56.1 Stmt. ¶ 37.) The plaintiff also testified that he thought he was denied the position of Acting Director in retaliation for turning down the offered position of Director of Construction Management Programs. (Def. Stmt. ¶ 36; Sims Dep. 48:15-24.)
The defendant claims that the plaintiff was "disrespectful and belligerent" to Mr. Popper when Mr. Popper sought the plaintiff's input about the plaintiff's unit. (Def. 56.1 Stmt. ¶ 42.) The plaintiff does not recall the details of the meeting (Pl. 56.1 Stmt. ¶ 39), but did apologize for the "disagreement" over the director position. (Def. 56.1 Stmt. ¶ 43).
Mr. Popper retired in 2005, and pending the selection of a replacement, the plaintiff reported to Mr. Rosado, Director of Operations. (Def. 56.1 Stmt. ¶¶ 46-47.) The defendant alleges that during the time the plaintiff reported to Mr. Rosado, the plaintiff was "unable to properly delegate work to his subordinates, which resulted in unnecessary delays in the Unit." (Def. 56.1 Stmt. ¶ 48.) The plaintiff denies that allegation and responds by claiming that Mr. Rosado "asked him to require his subordinates to perform illegal directives [by] requiring subordinates to perform out of title work." (Pl. 56.1 Stmt. ¶ 48; see also Pl. Exs. 5, 6.) The defendant denies that the plaintiff ever raised the issue of out of title work. (Rosado Decl. March 19, 2010 ¶ 5; Joseph Decl. March 19, 2010 ¶ 8.)
On February 19, 2008, an arbitrator, Amedeo Greco, found that HPD had been assigning its employees out of title work from October 3, 2005 to February 19, 2008. (Pl. Ex. 6.) The City had assigned the employees Level 3 duties, which were "substantially different" from their Level 2 job titles. (Pl. Ex. 6 at 14.) The City was ordered to make the employees whole by paying them the difference between Level 2 and Level 3 compensation. (Pl. Ex. 6 at 14.)
It should be noted, however, that the plaintiff was not a grievant in that case. (Pl. Ex. 6.) Additionally, other than Joseph Longo, none of the individuals the plaintiff specifically complains about in the current case were mentioned in the arbitrator's decision. (Pl. Ex. 6.) While Mr. Longo was not specifically found to have been assigned out of title work in the decision, his testimony was used to support the finding that Level 3 work was being done by employees designated at Level 2. (Pl. Ex. 6 at 8-9, 13.)
Based on the Organizational Charts that the plaintiff submitted, some of the grievants in the arbitrator's decision--Vincent Trotiano, Alton Dunkley, Thomas Daley, Eric Wellington, and Richard Cognat--appear to have been under either direct or indirect supervision from Joseph Longo, William Rosado, Timothy Joseph, Michael Popper, and Joseph Canton, all of whom the plaintiff does specifically complain against in the current case. (Pl. Ex. 6; Pl. Ex. 14.) However, the charts themselves do not indicate with sufficient clarity that the direct or indirect supervision took place during the same time period that the arbitrator's make-whole relief applied. (Pl. Ex. 14.)
On April 13, 2006, Mr. Rosado and Unit Supervisor Peter Wilson met with the plaintiff to discuss the 8A Loan Unit's workload and target completions. (Def. 56.1 Stmt. ¶ 49.) The plaintiff blamed the backlog and delays on the resource needs of the Unit and complained that Mr. Rosado and the Assistant Commissioner were not addressing the resource needs. (Def. 56.1 Stmt. ¶ 50.) Mr. Rosado suggested the workload could be met "as the Unit is constituted," and the plaintiff became agitated and complained about a lack of career advancement. (Def. 56.1 Stmt. ¶ 51; Pl. 56.1 Stmt. ¶ 51.)
On May 8, 2006, another meeting was held between the plaintiff, Assistant Commissioner Timothy Joseph, and Mr. Rosado. (Def. 56.1 Stmt. ¶ 55.) The defendant claims that the plaintiff was "antagonistic" and "interrupted [Mr. Rosado] with snide and condescending comments." (Def. 56.1 Stmt. ¶ 56.) The plaintiff objects to that characterization. (Pl. 56.1 Stmt. ¶ 56.)
In spring of 2006, the Deputy Commissioner of the Office of Housing Operations ("OHO"), Laurie LoPrimo, formed a working group to review the procedures of the 8A Unit to determine what changes were needed to increase efficiency and meet target deadlines. (Def. 56.1 Stmt. ¶¶ 59-60.) Because of the plaintiff's "disruptive behavior" at a meeting on July 20, 2006, he was asked to leave. (Def. 56.1 Stmt. ¶¶ 61-63.) The plaintiff admits to leaving but denies it was because he was disruptive. (Pl. 56.1 Stmt. ¶¶ 61-63.) On July 25, 2006, Deputy Commissioner LoPrimo wrote a Departmental Memorandum concerning the plaintiff's "unprofessional and disruptive behavior" at the July 20th meeting. (Def. 56.1 Stmt. ¶ 64.)
The Deputy Commissioner noted that the plaintiff's behavior was "unprofessional and inconsistent with your obligations as a managerial employee...." Def. 56.1 Stmt. ¶ 65; Def. Ex. M.) The plaintiff admits the memorandum was written but objects to the characterization and ...