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Zachary Brown v. City of New York

November 30, 2011


The opinion of the court was delivered by: P. Kevin Castel, District Judge:


Plaintiff Zachary Brown brings this suit for employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Civil Rights Act of 1991 ("Title VII"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 721 et seq. ("ADEA"), 42 U.S.C. §§ 1981 and1983, the New York State Human Rights Law, N.Y. Exec. L. § 290 et seq. ("NYSHRL"), the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. ("NYCHRL"), and the Due Process clauses of both the U.S. and New York state constitutions. Plaintiff, an African-American male, claims that the defendants terminated him from his employment with the New York City Department of Health and Mental Health on the basis of his race, age, and gender. Discovery in this case is complete, and defendants have moved for summary judgment pursuant to Rule 56, FED. R. CIV. P. For the reasons set forth below, defendants' motion is granted.


The following facts are either not disputed by plaintiff or, where there is a dispute, plaintiff's evidence is accepted as true and all reasonable inferences are drawn in his favor as non-movant. See, e.g., Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011).

I. Plaintiff's Employment with the City of New York

Plaintiff is an African-American male born in 1957. (Defendants' Local Civil Rule 56.1 Statement of Undisputed Facts ("Defs. 56.1") ¶¶ 2-3; Plaintiff's Response to Defendants' Local Rule 56.1 Statement ("Pl. 56.1 Resp.") ¶¶ 2-3.) Plaintiff began working for the New York City Department of Health and Mental Hygiene ("DHMH") as a provisional employee on February 6, 2006. (Defs. 56.1 ¶ 7; Pl. 56.1 Resp. ¶ 7.) The DHMH is a civil service agency with the City of New York.

The position plaintiff accepted in February 2006 was as a "research assistant" in the DHMH's Asthma Initiative Program. (Defs. 56.1 ¶ 8; Pl. 56.1 Resp. ¶ 8.) Lynn Silver, Assistant Commissioner of the Bureau of Chronic Disease Prevention and Control and one of the defendants in this case, approved the creation of the position and the decision to hire plaintiff. (Id.) In 2007, the DHMH established a new position of "Training Coordinator" for its "Physical Activity and Nutrition Program." (Defs. 56.1 ¶ 10; Pl. 56.1 Resp. ¶ 10.) Plaintiff was promoted to Training Coordinator on June 25, 2007, receiving a salary increase of approximately $11,000. (Defs. 56.1 ¶¶ 10-12; Pl. 56.1 Resp. ¶¶ 10-12; Pl.'s Dep. at 45.) Defendant Silver and Candace Young, plaintiff's then-immediate supervisor, promoted plaintiff to this new position. (Defs. 56.1 ¶ 11; Pl. 56.1 Resp. ¶ 11.)

As Training Coordinator, plaintiff was a provisional employee of the City of New York and reported directly to defendant Rhonda Walsh, a Training Director with the DHMH.*fn1

(Defs. 56.1 ¶¶ 13-14; Pl. 56.1 Resp. ¶¶ 13-14.) Walsh is a white female who was under the age of forty when she began as Training Director. (Compl. ¶¶ 9-10, 14.) Walsh directly supervised a staff of approximately seven employees, including plaintiff. As Training Director, Walsh had responsibility for reviewing and approving her subordinates' requests for time off from work using the DHMH's electronic "Citytime System." (Walsh Decl. at 2.)

Beginning in late 2008, plaintiff's supervisors began documenting instances in which plaintiff was late in arriving to work. On November 17, 2008, Walsh and her supervisor, defendant Cathy Nonas, held a conference with plaintiff at which Walsh and Nonas "expressed [their] concern over [plaintiff's] persistent and consistent tardiness record." (Walsh Decl. Ex. A.) Nonas, Director of the DHMH's Physical Activity and Nutrition Program, is a white female born in 1951. (Defs. 56.1 ¶ 5; Pl. 56.1 Resp. ¶ 5.) On January 6, 2009, Walsh and Nonas again met with plaintiff to discuss further instances in which plaintiff had arrived late to work. (Defs. 56.1 ¶¶ 14-15; Pl. 56.1 Resp. ¶¶ 14-15.) During this meeting, Walsh and Nonas provided plaintiff with a written memorandum reporting that plaintiff had been late in arriving to work ten of the previous thirty-two work days. (Defs. 56.1 ¶¶ 14-15; Pl. 56.1 Resp. ¶¶ 14-15; Walsh Decl. Ex. A.) The memorandum noted the November 17, 2008 conference and reiterated the departmental attendance standards, which required all employees to request vacation or personal time in advance. (Walsh Decl. Ex. A.)

II. Plaintiff's Incident with Defendant Walsh on February 11, 2009

On the morning of February 9, 2009, plaintiff left a voicemail message with Walsh informing her that his apartment required emergency repairs and that plaintiff would therefore be absent from work on February 9 and 10. (Defs. 56.1 ¶ 16; Pl. 56.1 Resp. ¶ 16.) Plaintiff did not come into work either day. Plaintiff returned on February 11 and used the DHMH's electronic attendance system to submit a request that his two-day absence be counted as "sick leave" as opposed to vacation or "comp" time. (Defs. 56.1 ¶ 17; Pl. 56.1 Resp. ¶ 17.) Upon noticing this request, defendants Walsh and Nonas conferred and agreed that plaintiff should instead characterize his two-day absence as vacation time. (Walsh Decl. Ex. C; Defs. 56.1 ¶¶ 17-18; Pl. 56.1 Resp. ¶¶ 17-18.) Walsh and Nonas further agreed that Walsh, as plaintiff's direct supervisor, should tell plaintiff in person that he needed to do so. (Walsh Decl. Ex. C.)

The ensuing encounter between plaintiff and Walsh forms the basis for plaintiff's eventual termination and, ultimately, the present lawsuit. On the afternoon of February 11, Walsh approached plaintiff at his desk. Plaintiff's desk is located within a cubicle, which contains a file cabinet and is clustered with other employees' cubicles in the middle of the office. (Defs. 56.1 ¶ 18; Pl. 56.1 Resp. ¶ 18; Walsh Decl. at 3.) Walsh told plaintiff that he needed to record his absences on February 9 and 10 as vacation time and not as sick leave. In response, plaintiff stood up and raised his voice, proclaiming "this is bullshit" and that he was "sick of hearing about everyone else in the office." (Defs. 56.1 ¶ 19; Pl. 56.1 Resp. ¶ 19.)*fn2 The specific events that transpired thereafter are disputed between the parties. Accepting plaintiff's version as true, Walsh took several steps backward as plaintiff pushed his chair away from his body.

(Defs. 56.1 ¶¶ 19-20; Pl. 56.1 Resp. ¶¶ 19-20.) As Walsh backed away from plaintiff's cubicle, she asked plaintiff to "get out of [her] face." (Defs. 56.1 ¶ 20; Pl. 56.1 Resp. ¶ 20; Aff. Frishberg Ex. 1 ("Walsh Dep.") at 34.) Walsh reiterated that defendant Nonas required plaintiff to mark his absence as vacation time before leaving plaintiff's cubicle. (Brown Decl. ¶ 9.)

Later that afternoon, Walsh drafted a memorandum to Nonas. In it, Walsh described her version of the events and listed the names of seven witnesses whom Walsh believed had observed the incident. (Walsh Decl. at 4.) One of those witnesses was Brendan Delaney, a Director of Administration with the DHMH. After speaking privately with Walsh that afternoon, Delaney wrote a memorandum in which he confirmed that plaintiff had raised his voice and stated "this is bullshit" to Walsh. (Silver Decl. Ex. G.) Delaney also wrote that Walsh appeared "visible shaken and upset" following the incident and that she left the office for some "fresh air" following their conversation. (Id.) Delaney submitted his memorandum to defendant Silver later that same day.*fn3 After receiving Delaney's memorandum, Silver investigated the February 11 incident. Although Silver did not speak with plaintiff (Brown Decl. ¶ 15), she discussed the incident with Delaney, Walsh, and several other staff members "seated in the vicinity" of plaintiff's cubicle. (Silver Dep. at 35.) Silver then referred the matter to the Employment Law Unit for "appropriate disciplinary action." (Silver Decl. at 4.)

On February 12, 2009, Rose Tessler, the Director of the Employment Law Unit of the DHMH, informed plaintiff in a written memorandum that he would be suspended without pay. (Defs. 56.1 ¶ 25; Pl. 56.1 Resp. ¶ 25; Wangle Decl. Ex. A.) Plaintiff received a second letter on February 12 that charged plaintiff with violating two rules of the DHMH Standards of Conduct: Rule 3.25 for "[c]onduct prejudicial to good order and discipline," and Rule 3.8 for "[t]hreatening or intimidating a superior, fellow employee, or private citizen." (Wangle Decl. Ex. B.) The February 12 letter elaborated on the charges, explaining that on February 11 plaintiff "positioned [him]self directly over [defendant Walsh]," "raised [his] voice," and made the following three statements:

 I am sick of hearing about everyone else in the office!  This is bullshit!  Don't compare me to other people! (Id.; Defs. 56.1 ¶ 27; Pl. 56.1 Resp. ¶ 27.) Defendant Walsh "felt extremely threatened," took "a few steps backward," and asked plaintiff to "get out of her face." (Defs. 56.1 ¶ 27; Pl. 56.1 Resp. ¶ 27.) Plaintiff then pushed his chair and raised his voice again before Walsh advised plaintiff to speak with another supervisor. (Wangle Decl. Ex. B.)

III. Plaintiff's Disciplinary Proceedings and Subsequent Termination

The DHMH instituted disciplinary proceedings against plaintiff based upon the charges set forth in Ms. Tessler's February 12 letter. Pursuant to "Step I" of the departmental procedures, an "Informal Conference" took place on February 18 attended by plaintiff, a representative from plaintiff's union, the Communication Workers of America, and Michael Aragon, an "Informal Conference Leader" with the DHMH. (Defs. 56.1 ¶¶ 26-27; Pl. 56.1 Resp.

¶¶ 26-27; Wangle Decl. Ex. B.) Following the conference, Aragon issued a written "Notice of Determination" in which he recommended plaintiff's termination and advised plaintiff of his right to appeal. (Defs. 56.1 ¶ 28; Pl. 56.1 Resp. ¶ 28; Wangle Decl. Ex. C.)

Plaintiff appealed the recommendation of the "Informal Conference Leader" and a Step II hearing was held on March 16, 2009. (Defs. 56.1 ¶¶ 29-31; Pl. 56.1 Resp. ¶¶ 29-31.) The Step II Hearing Officer received testimony from Walsh, Brendan Delaney, plaintiff, and plaintiff's union representative. (Wangle Decl. Ex. D.) Walsh testified that plaintiff "raised his voice" and that she felt threatened and intimidated by plaintiff's behavior. (Id.) Plaintiff testified that Walsh asked him "in a disrespectful way" why he had not submitted his absence from work correctly, and that in response, plaintiff behaved "inappopriate[ly]" despite not intending to threaten Walsh or "do her any harm." (Id.) The Step II Hearing Officer found that based on the charges and the evidence presented at the hearing, plaintiff's behavior "was intimidating and threatening." In a written decision dated March 16, 2009, the Hearing Officer concurred with the Step 1 Informal Conference Leader's recommendation that plaintiff be terminated. (Defs. 56.1 ¶¶ 29-31; Pl. 56.1 Resp. ¶¶ 29-31; Wangle Decl. Exs. D, E.)

Plaintiff appealed the Step II Hearing Officer's decision to the City of New York's Office of Labor Relations ("OLR"). (Defs. 56.1 ¶ 32; Pl. 56.1 Resp. ¶ 32; Pl.'s Dep. at 78-80.) The OLR conducted a Step III hearing on January 26, 2010, which plaintiff and his union representative attended. (Defs. 56.1 ¶ 33; Pl. 56.1 Resp. ¶ 33; Walsh Decl. Ex. F.) The Step III Hearing Officer determined that the DHMH did not violate its contract with plaintiff's union in terminating plaintiff and that the evidentiary record confirmed plaintiff's behavior as "threatening and intimidating." (Walsh Decl. Ex. F.) In a May 26, 2010 memorandum reviewing the Step III Hearing Officer's determination, the OLR determined that the evidentiary record "specifically" revealed that plaintiff "positioned himself over his supervisor, raised his voice[,] and made three inappropriate statements to her." (Id.) The memorandum further noted that plaintiff "forcefully pushed his chair" during the incident and that plaintiff later admitted in an e-mail that he had acted inappropriately. (Id.) Accordingly, the OLR denied plaintiff's grievance and upheld the Step III determination. (Defs. 56.1 ¶¶ 34-37; Pl. 56.1 Resp. ¶¶ 34-37; Walsh Decl. Ex. F.)

While the DHMH proceedings were underway, plaintiff sought relief from the Equal Employment Opportunity Commission ("EEOC"). Specifically, plaintiff filed an EEOC Intake Questionnaire in May 2009, alleging discrimination on the part of DHMH on account of his race, age, and gender. (Defs. 56.1 ¶ 38; Pl. 56.1 Resp. ¶ 38; Waters Decl. Ex. E.) Following its investigation, the EEOC issued a Dismissal and Notice of Rights on December 31, 2009. (Waters Decl. Ex. F.) The dismissal advised plaintiff that after investigating his claim, the EEOC was "unable to conclude that" plaintiff had ...

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