United States District Court, E.D. New York
SANDRA J. FEUERSTEIN, District Judge.
Pending before the Court are the objections of plaintiff Brinsley Harper ("plaintiff') to a Report and Recommendation ("the Report") of the Honorable Gary R. Brown, United States Magistrate Judge, dated January 2, 2014, recommending that I grant the motion of defendant Brooklyn Children's Center ("defendant") seeking dismissal of the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim for relief. For the reasons stated herein, so much of the Report as finds that a plaintiff must allege "an adverse employment action, " defined as "a materially adverse change' in the terms and conditions of employment, " in order to establish a retaliation claim pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq., (Report at 4-6), and that plaintiff "fails to allege any adverse employment actions taken by defendant, " (Report at 7), is rejected, but the Report is otherwise accepted in its entirety.
I. Standard of Review
Rule 72 of the Federal Rules of Civil Procedure permits magistrate judges to conduct proceedings on dispositive pretrial matters without the consent of the parties. Fed.R.Civ.P. 72(b); see Marcella v. Capital Dist. Physicians' Health Plan. Inc., 293 F.3d 42, 46 (2d Cir. 2002). Any portion of a report and recommendation on dispositive matters to which a specific, timely objection has been made is reviewed de novo. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Arista Records. LLC v. Doe 3, 604 F.3d 110, 116 (2d Cir. 2010). However, the court is not required to review the factual findings or legal conclusions of the magistrate judge as to which no proper objections are interposed. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wagner & Wagner. LLP v. Atkinson. Haskins. Nellis. Brittingham. Gladd & Carwile. P.C., 596 F.3d 84, 92 (2d Cir. 2010) ("[A] party waives [judicial] review of a decision in a magistrate judge's report and recommendation if the party fails to file timely objections designating the particular issue."); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) ("As a rule, a party's failure to object to any purported error or omission in a magistrate judge's report waives further judicial review of the point.")
General objections, or "objections that are merely perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original papers will not suffice to invoke de novo review * * * [because] [s]uch objections would reduce the magistrate's work to something akin to a meaningless dress rehearsal." Owusu v. New York State Insurance, 655 F.Supp.2d 308, 313 (S.D.N.Y. 2009) (alterations, quotations and citations omitted); see also Butto v. Collecto. Inc., 290 F.R.D. 372, 379 (E.D.N.Y. 2013) ("In a case where a party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." (quotations and citation omitted)); Menking ex rel. Menking v. Daines, 287 F.R.D. 174, 177 (S.D.N.Y. 2012) (accord). To accept the report and recommendation of a magistrate judge to which such general or perfunctory objections are made, or to which no specific, timely objection has been made, the district judge need only be satisfied that there is no clear error apparent on the face of the record. See Fed.R.Civ.P. 72(b); Spence v. Superintendent. Great Meadow Correctional Facility, 219 F.3d 162, 174 (2d Cir. 2000) (a court may review a report to which no timely objection has been interposed to determine whether the magistrate judge committed "plain error."); Praileau v. Fischer, 930 F.Supp.2d 383, 388 (N.D.N.Y. 2013) (holding that when no objection or only a general objection is made to a portion of a magistrate judge's report and recommendation, or an objection merely reiterates the same arguments presented to the magistrate judge, the court subjects that portion of the report and recommendation to clear error review).
Whether or not proper objections have been filed, the district judge may, after review, accept, reject, or modify any of the magistrate judge's findings or recommendations. 28 U.S.C. §636(b) (1); Fed.R.Civ.P. 72(b); see Sentry Ins. A Mut. Co. v. Brand Management. Inc, 295 F.R.D. 1, 2 (E.D.N.Y. 2013); North Shore-Long Island Jewish Health Care System. Inc. v. MultiPlan. Inc., 953 F.Supp.2d 419, 424 (E.D.N.Y. 2013).
Plaintiff contends, inter alia, that Magistrate Judge Brown erred: (I) in finding that he "failed to allege any adverse employment taken by the defendant and fails to satiszy the third prong of a valid retaliation claim, " (Obj., ¶ 3), because as a result of the September 2009 Notice of Discipline ("2009 NOD") he "fear[ed] and believe[d] that the next strike on [his] chart [he] would have been fired, and * * * would have lost all [his] benefits" and the 2009 NOD "had a detrimental effect on [him], [his] performance and surely the potential of advancement, " (Obj., ¶ 5); (2) in finding that the temporal proximity between the protected activity and the adverse actions was insufficient from which to infer a causal connection because only fifty-six (56) days passed between the date that his 2007 federal discrimination action was settled and the 2009 NOD; (3) in "ignor[ing] the other evidence submitted in [his] complaint to support causation, " such as the disparate treatment he received in getting the 2009 NOD for policy violations, (Obj., ¶ 22); and (4) in finding that he failed to state a claim for constructive discharge.
Although not raised by plaintiff, so much of the Report as finds that a plaintiff must allege "an adverse employment action, " defined as "a materially adverse change' in the terms and conditions of employment, " in order to establish a Title VII retaliation claim, (Report at 4-6), and that "plaintiff fails to allege any adverse employment actions taken by defendant, " (Report at 7), is rejected as clearly erroneous. See Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010) ("Prior decisions of this Circuit that limit unlawful retaliation to actions that affect the terms and conditions of employment * * * no longer represent the state of the law.") In Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), the Supreme Court rejected any standard treating Title VII's "antiretaliation provision as forbidding the same conduct prohibited by [its] antidiscrimination provision, " id. at 67, 126 S.Ct. 2405, and held that the "antiretaliation provision, unlike the substantive [anti-discrimination] provision, is not limited to discriminatory actions that affect the terms and conditions of employment." Id. at 64, 126 S.Ct. 2405. "The scope of the antiretaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm, " id. at 67, 126 S.Ct. 2405, and "must be construed to cover a broad range of employer conduct." Thompson v. North American Stainless. LP, ___ U.S. ___, 131 S.Ct. 863, 868, 178 L.Ed.2d 694 (2011); see also Hicks, 593 F.3d at 165 ("[I]t is now clear that Title VII's anti-discrimination and anti-retaliation provisions are not coterminous; anti-retaliation protection is broader and extends beyond workplace-related or employment-related retaliatory acts and harm." (quotations and citation omitted)).
Rather, "(t]o establish a prima facie case of unlawful retaliation under Title VII, an employee must show that (I) he was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.'" Rivera v. Rochester Genesee Regional Transportation Authority, ___ F.3d ___, 2014 WL 518791 (2d Cir. Feb. 10, 2014) (emphasis added; alteration in original) (quoting Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012)); see also Tepperwien v. Entergy Nuclear Operations. Inc., 663 F.3d 556, 567 (2d Cir. 2011) ("Title VII * * * prohibits an employer from taking materially adverse' action against an employee because the employee opposed conduct that Title VII forbids or the employee otherwise engaged in protected activity.") In Burlington Northern, the Supreme Court held that in order to establish a "materially adverse action, " "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington Northern, 548 U.S. at 68, 126 S.Ct. 2405 (citation and quotation marks omitted); see also Hicks, 593 F.3d at 169 ("No longer must the alleged retaliatory act bear on the terms or conditions of employment; the proper inquiry now is whether the employer's actions [were] harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.'" (alteration in original) (quoting Burlington Northern, 548 U.S. at 57, 126 S.Ct. 2405)). "Still, [a]ctions that are "trivial harms" - i.e., "those petty slights or minor annoyances that often take place at work and that all employees experience" - are not materially adverse.'" Rivera, ___ F.3d ___, 2014 WL 518791 (alteration in original) (quoting Tepperwien, 663 F.3d at 568 (quoting Burlington Northern, 548 U.S. at 68, 126 S.Ct. 2405)); see also Hicks, 593 F.3d at 165 (accord). "Title VII * * * does not set forth a general civility code for the American workplace." Burlington Northern, 548 U.S. at 68 (quotations and citation omitted). Thus, for example, "[p]ersonality conflicts at work that generate antipathy and snubbing by supervisors and co-workers are not actionable." Tepperwien, 663 F.3d at 571 (alterations, quotations and citations omitted). Moreover, "[t]he antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm." Burlington Northern, 548 U.S. at 67, 126 S.Ct. 2405; see also Hicks, 593 F.3d at 165 (accord).
"[M]aterial adversity is to be determined objectively, based on the reactions of a reasonable employee." Rivera, ___ F.3d ___, 2014 WL 518791 (citing Burlington Northern, 548 U.S. at 69-70, 126 S.Ct. 2405); see also Thompson, ___ U.S. ___, 131 S.Ct. at 868 (holding that Title VII's antiretaliation "provision's standard for judging harm must be objective"); Hicks, 593 F.3d at 165 ("[B]y considering the perspective of a reasonable employee, [Burlington Northern] bespeaks an objective standard." (emphasis in original)). "Context matters, ' as some actions may take on more or less significance depending on the context." Tepperwien, 663 F.3d at 568 (quoting Burlington Northern, 548 U.S. at 69, 126 S.Ct. 2405); see also Thompson, ___ U.S. ___, 131 S.Ct. at 868 ("Given the broad statutory text and the variety of workplace contexts in which retaliation may occur, Title VII's antiretaliation provision is simply not reducible to a comprehensive set of clear rules.") "Alleged acts of retaliation must be evaluated both separately and in the aggregate, as even trivial acts may take on greater significance when they are viewed as part of a larger course of conduct." Tepperwien, 663 F.3d at 568; see also Hicks, 593 F.3d at 165 (accord).
Nonetheless, plaintiff does not allege "any discrete actions that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination, '" Rivera, ___ F.3d ___, 2014 WL 518791, after either the commencement of his discrimination action in this Court, under docket number 07-cv-591, on February 9, 2007 ("the 2007 discrimination action") or its conclusion on July 9, 2009, following the parties' execution of a stipulation of settlement on July 7, 2009. Without more, no reasonable jury could conclude that two (2) disciplinary citations, i.e., the 2009 NOD charging him with abandoning his post, violating defendant's Safety Department Policy and Procedure and not being in uniform while on duty, which was ultimately dismissed; and the November 11, 2009 counseling memorandum addressing an email he sent about an error made during a fire drill, might have "dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington Northern, 548 U.S. at 68, 126 S.Ct. 2405; see, e.g. Rivera, ___ F.3d ___, 2014 WL 518791 (finding that no reasonable jury could conclude that the two citations for insubordination, without more, constituted a materially adverse action); Tepperwien, 663 F.3d at 570 (finding that the counseling the plaintiff received was not a material adverse action as a matter of law because, inter alia, it did not place him in an active disciplinary process; "was merely a discussion of a legitimate safety concern" "below even a warning or reprimand;" and "in the context of the issuance of a counseling memo, ' * * * criticism of an employee (which is part of training and necessary to allow employees to develop, improve and avoid discipline) is not an adverse employment action.") Since plaintiff fails to allege any facts from which it may reasonably be inferred that he suffered a materially adverse action by defendant, the complaint fails to state a plausible Title VII retaliation claim.
Even assuming, arguendo, that plaintiff suffered a materially adverse action by defendant, Magistrate Judge Brown correctly found that he "failed to allege the temporal proximity required to establish causation." (Report at 8). Contrary to plaintiff's contention, for purposes of determining temporal proximity, the relevant period "is measured from the date of the employer's knowledge of [the] protected activity, '" Kim v. Columbia University, 460 Fed.Appx. 23, 25 (2d Cir. Feb. 6, 2012) (summary order) (alteration in original) (quoting Clark County School District v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001)), i.e., from the date plaintiff filed his discrimination complaint in federal court in September 2007, as alleged in his complaint, (Compl., ¶ 7). See Id . (rejecting the plaintiffs argument on appeal "that the temporal proximity between [the alleged adverse action in May 2007] and the April 2007 settlement proceedings in his then-pending discrimination case was sufficient to permit an inference of retaliation" and finding that the relevant period for purposes of determining temporal proximity began to run from the date the plaintiff filed his discrimination claim in federal court, or even earlier, when he initially filed a complaint against his employer with the EEOC, as that is when the employer learned of the protected activity). Accordingly, Magistrate Judge Brown correctly relied upon the date plaintiff commenced the 2007 discrimination action to conclude that plaintiff "has failed to allege the temporal proximity required to establish causation." (Report at 8).
Although the Second Circuit "ha[s] not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action[, ]" Summa v. Hofstra University, 708 F.3d 115, 128 (2d Cir. 2013), it has found that a "temporal gap of almost two years between the date of [the] protected activity and the alleged retaliation [to be] too great to give rise to an inference of causation." Harrison v. U.S. Postal Service, 450 Fed.Appx. 38, 41 (2d Cir. Dec. 8, 2011); see also Breeden, 532 U.S. at 273-74, 121 S.Ct. 1508 ("The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close, ' * * *. Action taken * * * twenty months later suggests, by itself, no causality at all." (citations omitted)); Sanchez v. Connecticut Natural Gas Co., 421 Fed.Appx. 33, 35 (2d Cir. Apr. 29, 2011) (finding insufficient evidence to give rise to an inference of causal connection between the plaintiff's protected speech and his subsequent termination at least two years later). Thus, Magistrate Judge Brown correctly found that "[s]tanding alone, the approximately two years between plaintiffs 2007 federal action ...