The opinion of the court was delivered by: Townes, United States District Judge
Plaintiff, Seoul Ortiz, a former employee of defendant New York City Housing Authority ("NYCHA"), brings this pro se action pursuant to 42 U.S.C. §§ 1981 and 1983, Title VII of the Civil Rights Act of 1964,*fn1 New York Executive Law § 296(6), and New York City Administrative Code §8-107, alleging that defendants discriminated against him based on his race. Defendants now move for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons set forth below, defendants' motion is granted.
I. Plaintiff's Time at NYCHA
Plaintiff was employed by defendant NYCHA from February 8, 1999 until his resignation on March 6, 2009. The parties dispute plaintiff's precise title. Although plaintiff alleges that he was "employed . . . in the title of caretaker P," and that his duties were "to assist the Plaster[er]," Amended Complaint ("Complaint") at ¶ 1, defendants have adduced evidence that he was hired as a "Caretaker," and that "Caretaker P" is not a job title recognized by NYCHA. See Declaration of Anthony Marotta ("Marotta Declaration") at ¶ 3.
It is undisputed that at some point in the Spring of 2008, plaintiff's supervisor, defendant Kenneth Case (incorrectly named in this action as Kenny Kaye) transferred him to Ravenswood Houses to perform janitorial duties. Plaintiff was unhappy about the reassignment. According to plaintiff, he complained to defendant Carla Warren, who supervised Caretakers, that he was a Caretaker P and, therefore, "skilled labor." Complaint at ¶ 6. She replied that he was to do what she said, or he would face discipline. Thereafter, plaintiff continued to verbally complain to defendant Superintendent Fernando Ramirez on a daily basis, again asserting that he, as a Caretaker P, was skilled labor and should not be assigned janitorial duties. Eventually, Ramirez, too, threatened to discipline plaintiff if he continued complaining and "making trouble." Complaint at ¶ 7. In May of 2008, plaintiff made a complaint to the Inspector General's office. Complaint at ¶ 8.
In August 2008, plaintiff was issued a "counseling memorandum" by defendant McEntee, an Assistant Superintendent (incorrectly named in this action as Robert McCantee). In that memorandum, a copy of which is attached to the complaint, McEntee stated that on July 31, 2008, he and Ramirez had discovered that plaintiff had failed to complete most of the janitorial duties that he was assigned to do that morning. McEntee further stated that, when confronted, plaintiff falsely claimed that he lacked "the proper equipment." Counseling Memo dated Aug. 11, 2008. When presented with the counseling memorandum, plaintiff not only declined to sign it, but said something dismissive. The parties disagree as to precisely what plaintiff said. A second counseling memo, also attached to the Complaint, states that plaintiff told McEntee, "[g]ive me 3 copies so I can wipe my ass with them." Veytsman Decl. Ex. L. However, at his deposition, plaintiff stated that he told McEntee he intended to use the copies "to blow [his] nose." Plaintiff's Deposition 65: 22-25. McEntee promptly issued plaintiff a second counseling memo, which plaintiff also refused to sign.
On September 9, 2008, plaintiff was suspended from his position for thirty days. Complaint at ¶ 10; Answer at ¶ 14. Upon his return to work in October 2008, plaintiff continued to complain about being forced to perform janitorial work. He told defendant Peters, an office manager, that Caretaker J duties were "out of title work." Complaint at ¶ 11. Peters apparently refused to reassign him, telling him, "I put you where I need you." Id. During the five months from October 2008 to March 2009, plaintiff was assigned to Ocean Bay Houses where the Superintendent, defendant Wingate, continued to assign him to janitorial duties. Plaintiff maintains that he was assigned to janitorial duties while other "similarly situated," "Caucasian" NYCHA employees were not. Complaint at ¶16.
On February 5, 2009, Plaintiff submitted a form requesting a medical leave of absence. Complaint at ¶ 14. Plaintiff claims that defendant Wingate denied his request and subsequently docked his pay. Id. On March 6, 2009, three days before plaintiff was scheduled to have a disciplinary hearing, he resigned from his position. Complaint at ¶ 17; Veytsman Decl. Ex. R at 2.
Less than three weeks later, on March 24, 2009, plaintiff commenced this action by filing a complaint pursuant to 42 U.S.C. § 1983*fn2 and New York Administrative Code § 8-107 against Union Local 237, NYCHA and four NYCHA employees: defendants Kenneth Case, Fernando Ramirez, Sherraine Wingate, and Elaine Peters. Plaintiff's original complaint alleged, inter alia, that"[d]ue to the retaliation and adverse work environment Plaintiff received" from the defendants, plaintiff was "constructive[ly] discharge[d]" from his employment. Initial Complaint at ¶ 13. Plaintiff sought immediate reinstatement and compensatory and punitive damages in the amount of one million dollars from each defendant.
On June 22, 2009, plaintiff filed an Amended Complaint naming three additional NYCHA employees as defendants: Robert McEntee, Carla Warren, and Dawn M. Pinnock. Plaintiff's Amended Complaint alleges that defendants violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), in various respects. Plaintiff alleges that defendants engaged in employment discrimination and retaliation; that they intentionally failed to promote him; and that they subjected him to a hostile work environment and constructively discharged him. Plaintiff also claims that defendants violated 42 U.S.C. §1983 ("section 1983") when they denied his constitutional right to equal protection and procedural due process.
On July 28, 2009, this Court issued a Memorandum and Order dismissing, sua sponte, any Title VII claims brought against individual defendants. Defendants now move for summary judgment on the grounds that, inter alia, plaintiff fails to establish a prima facie case of employment discrimination or retaliation; that plaintiff makes no allegations that rise to the level of discriminatory failure to promote; that plaintiff's claim that he was subjected to a hostile work environment and constructively discharged fail as a matter of law; and that defendants are entitled to summary judgment on plaintiff's section 1983 claims. Memorandum of Law in Support of Defendants' Motion for Summary Judgment ("Memorandum") at 15-25. When plaintiff failed to respond to defendants' motion, this court issued an order, dated November 1, 2010, advising plaintiff that defendants' motion for summary judgment was likely to be granted unless plaintiff provided the Court with evidence to contradict the evidence contained in defendants' motion papers. Despite this warning, plaintiff has failed to provide opposition papers.
I. Summary Judgment Standard
Summary judgment should be granted "where the moving party demonstrates that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law." Burt Rigid Box, Inc. v. Travelers Property Cas. Corp., 302 F.3d 83, 90 (2d Cir. 2002) (citing Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the party moving for summary judgment demonstrates that there are no genuine issues of material fact, "the nonmoving party, must, to defeat summary judgment, come forward with evidence that would be sufficient to support a jury verdict in its favor." Burt Rigid Box, 302 F.3d at 91 (citing Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995)). The nonmoving party cannot simply rest upon "conclusory statements or on contentions that the affidavits supporting the motion are not credible." Id.
When deciding a summary judgment motion, a trial judge is not required to make factual findings. Anderson, 477 U.S. at 250. Rather, "[t]he inquiry performed is the threshold inquiry of determining whether there is the need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. Additionally, courts should construe the submissions of a pro se litigant "liberally" and should interpret them to "raise the strongest arguments that they suggest." Treistman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
Most of defendants' arguments for summary judgment relate to plaintiff's Title VII employment discrimination and retaliation claims. Plaintiff's employment discrimination claims are based on section 703(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e)-2(a), which provides in relevant part:
It shall be an unlawful employment practice for an employer --
(1) . . . to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race. . . ; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race . . .
In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court outlined the three-step burden for analyzing employment discrimination cases. The plaintiff bears the initial burden of establishing a prima facie case of discrimination. Id. at 802. After plaintiff's prima facie case is established, the burden then shifts to the employer to "articulate some legitimate, nondiscriminatory reason for the employee's [treatment]." Id. Finally, the burden of proof shifts back to the plaintiff, who then has the burden to show that the reason for the challenged action offered by the employer is "in fact pretext." Id. at 804. The plaintiff's opportunity to rebut the employer's evidence "merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Prima Facie Case Turning to the first step of this analysis, defendants assert that plaintiff has failed to make out a prima facie case of Title VII employment discrimination. A plaintiff's burden of establishing a prima facie case of employment discrimination is "de minimis." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). A plaintiff has to show by a preponderance of the evidence that: (i) he is a member of a protected class; (ii) is qualified for the position; (iii) he suffered an adverse employment action; and (iv) the circumstances surrounding that action give rise to an inference of discrimination. Collins v. N.Y. City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002); see also Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999). Defendants argue that plaintiff's prima facie case fails on the third prong since the employment actions he alleges do not rise to the level of adverse employment actions.
A plaintiff suffers an adverse employment action if there exists a "'materially adverse change' in the terms and conditions of employment." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (quoting Richardson v. N.Y. State Dep't of Correctional Serv., 180 F.3d 426, 446 (2d Cir. 1999)). In order to qualify as "materially adverse," the challenged employment action must be a change in working conditions that is "more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. Examples of adverse employment action include termination of employment, a decrease in wage or salary, a less distinguished title, a material loss of benefits, and substantially diminished material responsibilities. Id. The ultimate determination of whether an employment action is adverse must be decided on a case-by-case basis since "there are no bright-line rules [and] courts must pore over each case to determine whether the challenged employment action reaches the level of 'adverse.'" Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997).
Defendants argue that plaintiff was not subjected to any adverse employment action because he was merely transferred, not demoted. ...