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Levitant v. The City of New York Human Resources Admin.

United States District Court, E.D. New York

December 13, 2012

Zinovy LEVITANT, Plaintiff,

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Zinoviy Levitant, pro se.

Herbert Moreira-Brown, Herbert Moreira-Brown, Esq., Bronx, NY, Joel M. Gluck, Law Offices of Joel M. Gluck & Associates, Brooklyn, NY, for Plaintiff.

Amy Grossberg, Carolyn Walker-Diallo, James Lemonedes, Jessica Leigh Waters, Joshua Robert Fay, New York City Law Department, Ashley Jean Hale, Office of the Corporation Counsel, New York, NY, for Defendant.


MATSUMOTO, District Judge:

On April 30, 2012, a jury returned a verdict in favor of plaintiff Zinoviy Levitant (" plaintiff" ) on a retaliation claim against his former employer, the City of New York Human Resources Administration (" defendant" or " NYCHRA" ), pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e et seq. (" Title VII" ), awarding plaintiff $250,000 in compensatory damages. The jury found in favor of defendant on plaintiff's hostile work environment and failure to promote claims. Presently before the court are defendant's motions for judgment as a matter of law under Federal Rule of Civil Procedure 50 (" Rule 50" ), or alternatively, for a new trial or a conditional order of remittitur under Federal Rule of Civil Procedure 59 (" Rule 59" ).

Under our system of jury trials, a jury's verdict has always been accorded great deference, and the court is cognizant of the extraordinary circumstances that must exist to overturn a jury's determination. Having carefully reviewed the trial record in the light most favorable to the plaintiff, the parties' submissions, and the relevant case law, for the reasons set forth below, the court grants defendant's motion for judgment as a matter of law, and directs entry of judgment in defendant's favor.


I. History of the Case

On January 14, 2005, plaintiff commenced this employment discrimination action against defendant pursuant to Title VII alleging: (1) that defendant discriminated against plaintiff on the basis of his race and Russian national origin by denying a transfer request, failing to promote him, and subjecting him to a hostile work environment; and (2) that defendant retaliated against plaintiff after he complained about such discrimination. ( See ECF No. 1, Complaint (" Compl." ).) On December 18, 2008, District Judge Bianco denied defendant's motion for summary judgment, found that plaintiff's failure to transfer claim was time-barred, and concluded that plaintiff's filing of a complaint addressing racial discrimination on August 12, 2003 constituted the first instance of " protected activity" for his retaliation claim under Title VII. Levitant v. City of N.Y. Human Res. Admin., 625 F.Supp.2d 85, 95-97, 107 (E.D.N.Y.2008). Additionally, Judge Bianco found that plaintiff engaged in protected activity by filing subsequent complaints alleging race and national origin discrimination on February 20, 2004 and July 13, 2004. Id. at 107. After the case was transferred to the undersigned on February 28, 2011, the court ruled on various motions in limine by defendant.

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See Levitant v. City of N.Y. Human Res. Admin., No. 05-CV-230, 2011 WL 795050, 2011 U.S. Dist. LEXIS 20742 (E.D.N.Y. Feb. 28, 2011).

After several adjournments of trial requested by plaintiff, jury selection and trial began on April 23, 2012 and lasted five days. On April 30, 2012, the jury returned a verdict in favor of defendant on plaintiff's failure to promote and hostile work environment claims based on race and national origin discrimination, and in favor of plaintiff on the retaliation claim. ( See ECF No. 142, Jury Verdict.) Specifically, the jury found that the defendant subjected the plaintiff to a materially adverse employment action after August 12, 2003 in retaliation for engaging in protected activity, and awarded $250,000 in compensatory damages as proximately caused by the defendant's retaliatory conduct. ( Id. )

II. The Evidence at Trial

Because the motions at issue are only relevant to plaintiff's retaliation claim, which must be predicated on defendant's conduct on or after plaintiff's complaint of discrimination on August 12, 2003, the court will primarily focus on evidence relating to events after August 12, 2003, providing background information where appropriate. In summarizing the evidence, the court is mindful that, for the purpose of a Rule 50 motion for judgment as a matter of law, the " court must consider the evidence in the light most favorable to the [plaintiff] and give that party the benefit of all reasonable inferences that the jury might have drawn in his favor from the evidence." Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir.2012) (internal quotation marks omitted); accord Cash v. County of Erie, 654 F.3d 324, 333 (2d Cir.2011).

A. Plaintiff's Case

Plaintiff's retaliation claim is based solely on his own testimony at trial; he presented no documentary evidence in support of his claims except for his discrimination complaints dated February 20, 2004, and July 13, 2004 (Plaintiff's Exs. (" PX" )-4, PX-5) and their accompanying exhibits, and a certificate of achievement for completing supervisor training dated February 23, 2004 (PX-8). Although plaintiff presented the testimony of another witness, Sybil Alexander, and the deposition testimony of an unavailable witness, Chibuzoh Enwereuzoh, the testimony of these witnesses related only to events prior to plaintiff's August 12, 2003 discrimination complaint, the date of the first instance of protected activity by plaintiff. The court will therefore summarize plaintiff's testimony.

1. Plaintiff's Background

Plaintiff was born in 1954 in the Ukraine, then a part of the Soviet Union. (Trial Transcript (" Tr." ) 24.) In November 1991, plaintiff came to the United States as a refugee based on persecution of Russian Jews in the Ukraine. (Tr. 25.) After engaging in other employment in the United States, plaintiff began working for the City of New York (the " City" ) as a caseworker in the Administration for Child Services (" ACS" ). (Tr. 27, 32.) Plaintiff had a good relationship with his supervisors at ACS and he did not have any disciplinary charges pending at the time of his departure from ACS. (Tr. 29-30, 38.)

2. Plaintiff's Employment at Brooklyn Adult Protective Services Between December 2000 and August 2003

In early December 2000, plaintiff was transferred from ACS to the NYCHRA to work in the Assessment Unit of the department of Adult Protective Services in Brooklyn, New York (" Brooklyn APS" ), which was located at 103 Clinton Street in Brooklyn. (Tr. 38, 40, 308.) In the Assessment Unit, plaintiff assessed the needs of at-risk individuals over the age of eighteen

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in response to reports received by the NYCHRA, and provided referrals for, inter alia, medical assistance, house cleaning, transportation, and disability insurance where necessary. (Tr. 39.)

In the beginning of 2001, plaintiff was transferred from the Assessment Unit of Brooklyn APS to the Under Care Unit, which provides visits to clients once a month after the above-referenced services by the Assessment Unit have been put into place. (Tr. 39-40, 45.) The Under Care Unit was located at the same office at 103 Clinton Street in Brooklyn, but the office moved to 250 Livingston Street in Brooklyn prior to August 2003. (Tr. 45, 316.) During the beginning of his work in the Under Care Unit until at least April 2001, plaintiff was supervised directly by Martin Agwuncha, a Supervisor I,[2] who in turn reported to Deborah Holt-Knight, then the deputy director of Brooklyn APS. (Tr. 517, 527-29; see Defendant's Exhibit (" DX" )-B.) At some point after April 2001 until his departure from Brooklyn APS on August 8, 2003, plaintiff was directly supervised by Martha Barnes, a Supervisor I, who in turn reported to Dr. Urdine Kennedy, a Supervisor III, and Sandra Brown, a Supervisor III and then-deputy director of Brooklyn APS. (Tr. 45, 47, 550.) Finally, Eileen Anderson was the overall director of Brooklyn APS at all relevant times. (Tr. 40, 47, 377.)

Plaintiff testified regarding specific incidents involving his supervisors at Brooklyn APS that were the subject of his Title VII claims based on race and/or national origin discrimination, for which the jury found in favor of the defendant. The court will briefly summarize these incidents because they provide context for plaintiff's retaliation claim:

• At some point prior to June 25, 2002, Dr. Kennedy told plaintiff to " [g]o and drink water from the toilet. You Russians did that in the past." (Tr. 51.)
• On June 25, 2002, when plaintiff was trying to obtain Dr. Kennedy's signature on a field visit slip, Ms. Anderson " grabbed" plaintiff with both her hands and " pushed" him into Dr. Kennedy's office. When Ms. Anderson then proceeded to physically block plaintiff's exit from the office, plaintiff " screamed for help" and Ms. Anderson stopped blocking the exit. (Tr. 48-49.)
• On August 8, 2003, in connection with plaintiff's questioning of a client regarding her medication in the Brooklyn APS office, Ms. Barnes approached plaintiff when she " was very upset and hostile," got close to plaintiff's face, and mocked plaintiff's Russian accent. When plaintiff told Ms. Barnes that her conduct was " totally inappropriate" and that he was going to file a complaint against her, Ms. Barnes " stuck her fingers in [plaintiff's] face" and continued to mock his accent. (Tr. 80-82, 239-42, 246, 295-97.)
• Immediately after the August 8, 2003 incident with Ms. Barnes, plaintiff asked a union delegate, Sybil Alexander, to accompany him to the office of Ms. Brown to discuss the incident. Ms. Brown reacted by telling Ms. Alexander to leave her office immediately and slamming the door to her office in Ms. Alexander's face. Ms. Brown then came close to the plaintiff and told him that he could " consider himself fired, because I'm filing charges against you." When plaintiff told her that he was going to " take action" due to Ms. Brown's assault of him and Ms.

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Alexander, Ms. Brown said that plaintiff had " just made a verbal threat" to her and that " the police will be here in five minutes." Upon hearing that the police were called, plaintiff left the office immediately. (Tr. 84-86, 246, 318.)

Plaintiff did not return to Brooklyn APS after he left the office on August 8, 2003.

On August 12, 2003, in response to the incident with Ms. Barnes and Ms. Brown, plaintiff filed an internal complaint of discrimination with defendant's Office of Equal Employment Opportunity (" EEO" ), naming Ms. Anderson as the person who discriminated against him and stating that " Ms. Anderson has turned against me." (Tr. 100-01; DX-BB (the August 12, 2003 EEO complaint).) This was the first complaint that plaintiff filed raising race and national origin discrimination. ( See Tr. 200.)

3. Plaintiff's Reassignment to Lombardi Home Care

After the August 8, 2003 incident, plaintiff was on a medical leave of absence for approximately two months and then took four weeks of annual leave vacation that he had previously scheduled. (Tr. 88-90, 256-58, 495.) Plaintiff testified that at an unspecified time while plaintiff was on medical leave and/or vacation, plaintiff was informed that he was suspended for charges " stemming from the beginning of June 25, 2002 up to 2003." (Tr. 93.) Plaintiff presented no other evidence regarding this suspension.

After his medical leave and vacation, plaintiff returned to work and spent one week waiting for an assignment at defendant's personnel office for medical assistance programs (" Personnel" ). (Tr. 257-59.) During that week at Personnel, plaintiff had to sit in a " very small space" without any assignment from 9:00 AM to 5:00 PM and was " monitored by [a] security guard." (Tr. 95.) Plaintiff testified that Richard Marin, the first assistant to the executive deputy commissioner, and Chuck Waxman, the director of Personnel, told him that he would not be returning to Brooklyn APS because " Ms. Anderson and Ms. Brown are afraid to see [him]." (Tr. 94, 260-61.) On cross-examination, plaintiff testified that he " did not insist" on being returned to Brooklyn APS in a conversation with Mr. Marin. (Tr. 260-61.)

4. Plaintiff's Employment at Lombardi Between November 2003 and September 2005

After the week at Personnel, plaintiff was assigned to the Lombardi Program, also known as the Long-Term Home Health Care program (" Lombardi" ), where he began work as a case manager on November 3, 2003. (Tr. 95, 261-62; DX-KK at D0257 (memorandum dated December 3, 2003 stating that defendant began work at Lombardi on November 3, 2003).)

Lombardi provides nursing and medical services for sick and elderly individuals who are qualified to enter a nursing home, but prefer to remain in their homes. (Tr. 95-96.) Plaintiff first began working at the Lombardi office located at 109 East 16th Street in Manhattan, but was transferred after several weeks to an office located at 309 East 94th Street, which was " very far" from his residence in Brooklyn. (Tr. 98.)

At Lombardi, plaintiff testified that he was " doing [a] supervisor job in the title of [a] caseworker and for the salary of [a] caseworker for two years." [3] (Tr. 95; see

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also Tr. 301 (plaintiff testifying that it was a " job requirement" that one " have the title of Supervisor I or II" in order to work at Lombardi).) Plaintiff also testified that he was the only caseworker among supervisors at Lombardi and that he " had to do the same job as those supervisors." (Tr. 95.) Specifically, plaintiff testified that he approved budget requests for home care services to be provided to clients by home care agencies, and that he had to sign his name as a supervisor. (Tr. 95-97.) Plaintiff was supervised at Lombardi by Janet Lugo, the executive director of Lombardi, and Debora Daniel-Preudhomme (" Ms. Preudhomme" ), the overall director of the Lombardi office at East 94th Street. (Tr. 96-97.)

At an unspecified time when plaintiff was at Lombardi, plaintiff took a personal call from his family during his lunch break and spoke Russian. (Tr. 98.) Plaintiff testified that Ms. Preudhomme told him that she did not want to hear him speak Russian in the office, even during personal calls on his lunch hour, and that she threatened plaintiff several times that she would call security and have plaintiff thrown out of the office if he spoke Russian again. (Tr. 98, 261-62.) [4] Plaintiff did not observe Ms. Preudhomme make the same comments to employees that spoke other languages, including several Spanish-speaking employees, and plaintiff testified that he heard Spanish spoken in the office " all the time," including during personal phone calls. (Tr. 99-100.)

On February 20, 2004, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (" EEOC" ) alleging national origin discrimination and retaliation, and stating, inter alia, that Ms. Preudhomme instructed him not to speak Russian in the office. (Plaintiff's Exhibit (" PX" )-4.) Finally, plaintiff summarily characterized his relationship with Ms. Preudhomme after March 2004 as one of " hostility and aggression and addressing for contempt [sic] and following and monitoring and threatening." (Tr. 123.)

5. The Failure to Promote Plaintiff to Supervisor I in March 2004

At an unspecified point in time, plaintiff applied for a Supervisor I position at Brooklyn APS. (Tr. 115-16, 269; see Tr. 509-10.) In order to apply for this position, plaintiff took a written test and was placed on a civil service list in which he was assigned a number ranking based on his score on the test (a " list number" ), with the lowest list numbers assigned to those with the highest scores on the test. (Tr. 116-118, 269.) Based on his score on the written test, plaintiff was assigned list number 478.5 and was selected to participate in an interview of an open pool of candidates for Supervisor I positions available at Brooklyn APS. (Tr. 116-18, 269-71; see also Exhibit A to PX-5 (letter dated March 18, 2004 notifying plaintiff of interview).)

On March 24, 2004, plaintiff was interviewed for a Supervisor I position at Brooklyn APS by Ms. Anderson and Ms. Brown, ...

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