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Mines v. The City of New York/Dhs

United States District Court, Second Circuit

November 4, 2013

SYLVIA MINES, Plaintiff,


JOHN G. KOELTL, District Judge.

The plaintiff, Sylvia Mines, brings this action against the defendants, the City of New York ("the City") and the New York City Department of Homeless Services ("the DHS"), her former employer. The plaintiff, proceeding pro se, alleges employment discrimination on the basis of religion under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and on the basis of disability under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12112 et seq. The defendants now move for summary judgment pursuant to Federal Rule of Civil Procedure 56.[1] For the reasons explained below, the motion is granted.


The standard for granting summary judgment is well established. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp v. Catrett , 477 U.S. 317, 322-23 (1986); Gallo v. Prudential Residential Servs., Ltd. P'ship. , 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment 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. Its duty, in short, is confined at this point to issue finding, it does not extend to issue resolution." Gallo , 22 F.3d at 1224.

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)(citing United States v. Diebold, Inc. , 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1123. 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. TRM Copy Ctrs. Corp. , 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the non-moving 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); see Scotto v. Almenas , 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases).

Where, as here, a pro se litigant is involved, although the same standards for dismissal apply, a court should give the pro se litigant special latitude in responding to a summary judgment motion. See McPherson v. Coombe , 174 F.3d 276, 280 (2d Cir. 1999) (courts "read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments that they suggest'" (quoting Burgos v. Hopkins , 14 F.3d 787, 790 (2d Cir. 1994))). In particular, the pro se party must be given express notice of the consequences of failing to respond appropriately to a motion for summary judgment. Local Civ. R. 56.2; see also McPherson , 174 F.3d at 281; Vital v. Interfaith Med. Ctr. , 168 F.3d 615, 620-21 (2d Cir. 1999).

In this case, in the "Statement to Pro-Se Litigant Opposing Summary Judgment" dated April 1, 2013, the defendants advised the plaintiff of the procedures for responding to the defendants' motion for summary judgment, including the requirement to submit evidence such as witness statements, or documents, countering the facts asserted by the defendants in their Rule 56.1 statement ("Defs.' Rule 56.1 Stmt"). The defendants also provided the plaintiff with a copy of Federal Rule of Civil Procedure 56 and Local Civil Rule 56.1 instructing her to prepare a numbered paragraph response to each paragraph in the defendants' Rule 56.1 statement. The plaintiff has failed to respond to the defendants' factual assertions despite receiving notice of the procedure for responding to a motion for summary judgment.

In a case where "the plaintiff has not responded to the defendant's factual assertions - all of which are established by documentary evidence and/or the deposition testimony of plaintiff... this Court [] deem[s] those facts uncontroverted." Grant v. Pathmark Stores, Inc., No. 06 Civ 5755, 2009 WL 2263795, at *2 (S.D.N.Y. July 29, 2009) (internal quotation marks and citation omitted). Nevertheless, "the district court may not rely solely on the statement of undisputed facts contained in the moving party's Rule 56.1 statement. It must be satisfied that the citation to evidence in the record supports the assertion." Vt. Teddy Bear Co. v. 1-800 Beargram Co. , 373 F.3d 241, 244 (2d Cir. 2004) (citing Giannullo v. City of N.Y. , 322 F.3d 139, 143 n.5 (2d Cir. 2003) (stating that not verifying in the record the assertions in the Rule 56.1 statement "would derogate the truth-finding functions of the judicial process by substituting convenience for facts")); see also Floyd v. Bailey, No. 10 Civ. 7794, 2013 WL 1155361, at *1 (S.D.N.Y. Mar. 21, 2013).

Here, the plaintiff's submission in response to the defendants' Rule 56.1 statement is deficient. The plaintiff submitted only an "Opposition to Motion of Summary Judgment" ("Pl.'s Opp'n"), ignoring most of the defendants' record-based factual assertions. To the extent that the plaintiff addresses the defendants' Rule 56.1 statement, she provides only conclusory allegations that are not supported by evidence. Therefore, for the purposes of this motion, the defendants' allegedly undisputed facts that are supported by the record and which the plaintiff has not specifically controverted with admissible evidence are deemed admitted.


In or around November 2009, the DHS determined that it needed to hire Level I Fraud Investigators to fill current vacancies for a shift that would work Friday through Sunday, 10:00 AM through 8:00 PM and on Monday from 10:00 AM to 7:00 PM. (Defs.' Rule 56.1 Stmt. ¶¶ 11-12.) The Department of Citywide Administrative Services provided the DHS with the plaintiff's name as a potential candidate for one of those positions. (Khandakar Decl. Ex. E.) The plaintiff is a female who identifies herself as a member of the Apostolic Faith and who claims that she suffers from a mental disability based on schizophrenia and that she also suffers from scoliosis back pain. (Am. Compl. at 3; Khandakar Decl. Ex. R ("Pl.'s Dep."), at 67.) The plaintiff attended an interview on December 7, 2009 and was ultimately selected for the Fraud Investigator position. (Khandakar Decl. Ex. E, at BB001; Pl.'s Dep. at 31.) The plaintiff alleges that on the date she was hired she informed the DHS that she was "a little slow." (Pl.'s Dep. at 74.)

On January 11, 2010 the plaintiff began a one year probationary period at the DHS as a Fraud Investigator Level I. (Defs.' Rule 56.1 Stmt. ¶ 5.) The plaintiff received one week of field investigator training from January 11, 2010 to January 18, 2010 and two months of on-the-job training with senior fraud investigators from January 18, 2010 until March 7, 2010. (Defs.' Rule 56.1 Stmt. ¶¶ 16-17.) The plaintiff claims that other employees received training from supervisors rather than senior fraud investigators. (Pl.'s Dep. at 77.)

All of the plaintiff's training took place on a weekday schedule. (Khandakar Decl. Ex. F.) On March 2, 2010 the plaintiff received a memorandum reminding her that her Friday through Monday, 10:00 AM through 8:00 PM, schedule would commence March 7, 2010. (Khandakar Decl. Ex. G.)

The plaintiff's position as a fraud investigator involved traveling with a partner to various addresses, interviewing the occupants, observing the premises, and creating reports indicating whether or not applicants for homeless services could reside at the addresses. (Defs.' Rule 56.1 Stmt. ¶¶ 8-10.) During the course of her employment, the plaintiff worked with two different partners, Oghenetega Eyubeh and David Liebowiz. (Pl.'s Dep. at 47-48.)

Despite being hired for a Friday through Monday position, on March 4, 2010, the plaintiff filed for a religious accommodation requesting Sundays off to attend church. (Def.'s Rule 56.1 Stmt. ¶ 40; Khandakar Decl. Ex. P.) Upon receipt of the plaintiff's request, the DHS's Executive Director for Diversity and Equal Opportunity Affairs, Mark Neal, engaged in several discussions with the DHS employees regarding possible accommodations. (Neal Decl. ¶ 9.) There were no vacancies for the plaintiff in the Monday through Friday shift and no volunteers willing to take over the plaintiff's Sunday shift. (Neal Decl. ¶ 11.) As a probationary employee, the plaintiff lacked seniority and the DHS could not exchange her shift with a more senior employee without violating its collective bargaining agreement. (Neal Decl. ¶ 11.) Moreover, because the DHS requires fraud investigators to work in pairs, allowing the plaintiff to skip her Sunday shift would have resulted in extra costs associated with finding alternative work for her partner. (Neal Decl. ¶ 12.)

Therefore, on April 12, 2010, Mr. Neal met with the plaintiff and informed her that her request for accommodation was denied. (Neal Decl. ¶ 14.) During this meeting, the plaintiff informed Mr. Neal that she did "not like arguing and fussing" and requested a partner that would "only listen to religious music." (Neal Decl. ¶ 14.) The plaintiff also informed Mr. Neal that she had a mental health issue. (Neal Decl. ¶ 15.) Mr. Neal directed the plaintiff to submit medical documentation regarding her condition in order to assess an additional request for accommodation. (Neal Decl. ¶¶ 15-16.) Mr. Neal contends that the plaintiff never followed up on this matter, while the plaintiff alleges she provided the required paperwork to his secretary. (See Neal Decl. ¶ 17; Pl.'s Dep. at 72-73.) The plaintiff concedes that she never followed up with Mr. Neal and never called asking about it again. ( Id. at 73.) Mr. Neal explains that he never denied or granted the plaintiff any disability accommodation because the plaintiff did not make an application for an accommodation or provide medical documentation regarding an accommodation. (See Neal Decl. ¶ 18.)

On numerous occasions during her employment, the DHS reprimanded the plaintiff due to the quality of her work and her workplace behavior. On March 27, 2010 and April 10, 2010, the DHS informed the plaintiff that her field investigations were not accurate or complete. (Khandakar Decl. Exs. I, J.) On March 26, 2010 and April 11, 2010, the plaintiff engaged in verbal disputes with Ms. Eyubeh and the DHS informed the plaintiff that her behavior was both unprofessional and against the DHS Code of Conduct. (Khandakar Decl. Exs. H, K.) The April 11, 2010 altercation took place at the scene of a field investigation where Ms. Eyubeth referred to the plaintiff as "crazy" and called a supervisor, Earnest Washington, to come to the scene. (Khandakar Decl. Ex. K ("Washington Mem.").) After his arrival, Mr. Washington observed the plaintiff acting unprofessionally towards a tenant. (Washington Mem.) The plaintiff informed Mr. Washington that she was "sick of being told what to do" by her partner and had issues with the R&B music that Ms. Eyubeh listened to. (Washington Mem.) Mr. Washington then proceeded to ask Ms. Eyubeh to work with the plaintiff on this issue and to play the music less if possible. (Washington Mem.) Mr. Washington's record of this incident notes that the plaintiff was "not ready for this type of unsupervised work." (Washington Mem.)

Soon after this incident, the plaintiff was assigned to a new partner, Mr. Liebowiz. (Defs.' Rule 56.1 Stmt. ¶ 27; Pl.'s Dep. at 47.) However, on May 23, 2010, a DHS employee responsible for reviewing the plaintiff's field investigations informed the plaintiff's supervisors that, despite the plaintiff's having a new partner and despite numerous discussions regarding the quality of her work, the plaintiff continued to make numerous errors. (Khandakar Decl. Ex. L.) On May 24, 2010, the plaintiff attended a conference with her supervisor Shurba Pollard regarding her poor work quality. (Khandakar Decl. Ex. M.) The purpose of the conference was to inform the plaintiff that her work performance was in direct violation of the DHS's Code of Conduct. (Khandakar Decl. Ex. M.) The plaintiff refused to sign the memorandum acknowledging the conference discussions. (Defs.' Rule 56.1 Stmt. ¶ 34.)

The plaintiff's supervisor evaluated the plaintiff's performance on April 20, 2010 and rated her "unsatisfactory" in every category that was rated and "unsatisfactory" overall. (Khandakar Decl. Ex. N.) The evaluation notes that the plaintiff was unable to conduct adequate field investigations due to a lack of focus, that she left out pertinent information from field reports, and that she displayed unprofessional behavior in the field. (Khandakar Decl. Ex. N.) The evaluation recommended that the plaintiff be terminated from her position. (Khandakar Decl. Ex. N.) The Performance Evaluation was ...

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