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El-Hassen v. New York State Department of Correctional Services

United States District Court, N.D. New York

June 25, 2015

MAMOUN EL-HASSEN, [1] Plaintiff,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, Defendant.

MAMOUN EL-HASSAN Plaintiff, Pro Se Washington, DC, of Counsel.

GREGORY J. RODRIGUEZ, ESQ., Assistant Attorney General, HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, Counsel for Defendant, The Capitol, Albany, NY.

DECISION and ORDER

GLENN T. SUDDABY, District Judge.

Currently before the Court, in this pro se employment civil rights action filed by Mamoun El-Hassan ("Plaintiff") against the New York State Department of Correctional Services ("Defendant"), is Defendant's motion for summary judgment. (Dkt. No. 32.) For the reasons set forth below, Defendant's motion is granted, and Plaintiff's Complaint is dismissed.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint

Generally, liberally construed, Plaintiff's Complaint alleges that, while he worked as a Muslim Chaplain at Elmira and Gowanda Correctional Facilities between September 2007 and February 2009, Defendant discriminated against him based on his African-American race and Muslim religion, and retaliated against him for reporting the discrimination to a deputy superintendent. (Dkt. No. 1.) Plaintiff's Complaint alleges that Defendant committed this discrimination and retaliation by wrongfully suspending Plaintiff's employment, docking his pay, denying his request to use a county bus to commute to work, making negative accusations regarding his work performance, stopping delivery of "Muslim oils" for Muslim inmates, denying approval of his leave requests, blocking his transfer to another correctional facility, harassing him in a meeting, and then terminating his employment. ( Id. )

Based on these factual allegations, Plaintiff's Complaint asserts three claims against Defendant: (1) a claim that Defendant discriminated against him based on his race, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"); (2) a claim that Defendant discriminated against him based on his religion, in violation of Title VII; and (3) a claim that Defendant retaliated against him for reporting the aforementioned discrimination, in violation of Title VII. ( Id. )

Familiarity with these claims, and the factual allegations supporting them, is assumed in this Decision and Order, which is intended primarily for the review of the parties. ( Id. )

B. Parties' Briefing on Defendant's Motion for Summary Judgment

1. Defendant's Memorandum of Law

Generally, in its memorandum of law, Defendant argues that it is entitled to judgment as a matter of law based on the current record for three reasons. (Dkt. No. 32, Part 2 [Def.'s Memo. of Law].) First, Defendant argues, Plaintiff's racial discrimination claim must be dismissed because he has failed to exhaust his administrative remedies with regard to that claim in that he failed to identify "race" as a ground of the claimed discrimination on the EEOC Charge of Discrimination form that he completed. ( Id. )

Second, Defendant argues, to the extent Plaintiff's claims are based on events occurring before July 8, 2008, those claims must be dismissed as untimely, because those events occurred more than 300 days before he filed a complaint with the EEOC on May 4, 2009. ( Id. )

Third, Defendant argues, Plaintiff's religious discrimination claim and retaliation claim must be dismissed for the following reasons: (a) he cannot establish a prima facie case of racial discrimination given the lack of evidence establishing that he suffered discriminatory adverse employment actions, or that those actions occurred under circumstances permitting an inference of discrimination; (b) he cannot establish a prima facie case of retaliation given the lack of evidence establishing that he was engaged in protected activity when he advised the superintendent that his request to take the bus was denied by the deputy superintendent, that he suffered a sufficiently serious adverse action, or that the protected activity caused the temporally distant adverse action; (c) in any event, Defendant has shown a legitimate non-discriminatory reason for taking the alleged discriminatory and/or retaliatory actions, i.e., that Plaintiff engaged in inappropriate conduct during the term of his Disciplinary Evaluation Period in violation of his Stipulation of Settlement of his suspension; and (d) moreover, Plaintiff cannot demonstrate that the reasons given by Defendant for its adverse action were not the true reasons but were a pretext for discrimination and/or retaliation (especially given the but-for causation standard for Title VII retaliation claims set forth by the Supreme Court in Nassar v. Univ. of Tex. Sw. Med. Ctr., 133 S.Ct. 2517, 2534 [2013]). ( Id. )

2. Plaintiff's Opposition

Generally, in opposition to Defendant's motion, Plaintiffsubmits a response to Defendant's Statement of Facts and three pages of exhibits. (Dkt. No. 33 [Plf.'s Rule 7.1 Response].)

3. Defendant's Reply Memorandum of Law

Generally, in its reply memorandum of law, Defendant asserts two arguments. (Dkt. No. 34 [Def.'s Memo. of Law].) First, Defendant argues, all properly supported facts asserted by Defendant must be accepted as true for purposes of its motion because Plaintiff has failed to admit or deny each of its factual assertions in matching numbered paragraphs and support each denial with a specific citation to the record, as required by Local Rule 7.1(a)(3) of the Local Rules of Practice for this Court. ( Id. )

Second, Defendant argues, Plaintiff has failed to create a genuine issue of material fact warranting the denial of Defendant's motion for the following reasons: (a) he has failed to adduce an affidavit; (b) none of the three documents he has adduced are before the Court in admissible form; and (c) indeed, most of the assertions contained in his response to Defendant's Statement of Facts (which is not verified) either are conclusory in nature or impermissibly contain legal arguments. ( Id. )

C. Statement of Undisputed Material Facts

The following material facts have been asserted and supported by Defendant in its Statement of Material Facts, and not denied in a matching numbered paragraph with a supporting record citation by Plaintiff in his response thereto, and thus admitted pursuant to Local Rule 7.1 of the Local Rules of Practice for this Court, as explained below in Part II.A. of this Decision and Order. ( Compare Dkt. No. 32, Attach. 1 [Def.'s Rule 7.1 Statement] with Dkt. No. 33 [Plf.'s Rule 7.1 Response].)

Plaintiff's Notice of Discipline, Stipulation of Settlement and Disciplinary Evaluation Period

1. Peter Brown served as DOCS' Director of Labor Relations until he retired from DOCS in April 2010. ( Compare Dkt. No. 32, Attach. 1, at ¶ 1 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

2. As Director of Labor Relations, Director Brown ran the Office of Labor Relations, which consisted of a number of deputy directors, associates and representatives who investigated and did all of the administrative work associated with disciplinary related matters. ( Compare Dkt. No. 32, Attach. 1, at ¶ 2 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

3. On June 12, 2007, Director Brown issued a Notice of Discipline to Plaintiff while he was employed at Elmira Correctional Facility ("Elmira C.F."). ( Compare Dkt. No. 32, Attach. 1, at ¶ 3 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

4. Pursuant to the Notice of Discipline, Plaintiff was informed that DOCS was implementing a penalty of dismissal from service and loss of any accrued annual leave pursuant to the Disciplinary Procedure contained in Article 33 of the Agreement between the State of New York and the Public Employees Federation for the Professional, Scientific and Technical Services Unit. ( Compare Dkt. No. 32, Attach. 1, at ¶ 4 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33, at ¶ 4 [Plf.'s Rule 7.1 Response, denying part of fact asserted but not supporting denial with accurate record citation but merely an exhibit that does not controvert fact asserted].)

5. The reasons for the discipline are set forth in the Notice of Discipline. ( Compare Dkt. No. 32, Attach. 1, at ¶ 5 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

6. Plaintiff was suspended without pay beginning on June 12, 2007. ( Compare Dkt. No. 32, Attach. 1, at ¶ 6 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

7. By Stipulation of Settlement, Plaintiff (who was represented by counsel) and DOCS agreed that, in full settlement of the Notice of Discipline, Plaintiff "shall voluntarily transfer from his position as a Chaplain at the Elmira C.F. and accept a position with the Gowanda Correctional Facility" and that said transfer would be effective November 1, 2007 ( Compare Dkt. No. 32, Attach. 1, at ¶ 7 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

8. The Stipulation of Settlement was signed by Virginia Kirby, Labor Relations Representative, on behalf of DOCS, because she was responsible for Elmira C.F. at that time. ( Compare Dkt. No. 32, Attach. 1, at ¶ 8 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

9. In accordance with the Stipulation of Settlement, Plaintiff was also to serve a period of suspension and then was to be placed on medical leave of absence until he began working at Gowanda Correctional Facility ("Gowanda C.F."). ( Compare Dkt. No. 32, Attach. 1, at ¶ 9 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

10. Pursuant to the Stipulation of Settlement, Plaintiff also had to serve a general Disciplinary Evaluation Period ("DEP") of two (2) years, from November 1, 2007, to October 31, 2009. ( Compare Dkt. No. 32, Attach. 1, at ¶ 10 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33, at ¶ 7 [Plf.'s Rule 7.1 Response, denying part of fact but not supporting denial with accurate record citation, and in any event acknowledging that the statement that the DEP was "12 month[s]" was a "mistake"].)

11. During a DEP, a grievant is evaluated on a monthly basis to ensure compliance and any type of misconduct is reported to the Office of Labor Relations. ( Compare Dkt. No. 32, Attach. 1, at ¶ 11 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

12. During the DEP, documents provided by the facility are evaluated to determine if a violation of the DEP occurred. ( Compare Dkt. No. 32, Attach. 1, at ¶ 12 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

13. If a violation has occurred during the DEP, the Office of Labor Relations would consider warning the employee. ( Compare Dkt. No. 32, Attach. 1, at ¶ 13 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

14. If a violation occurred during the DEP and the employee had been previously warned, the Office of Labor Relations would proceed with implementation of the proposed penalty. ( Compare Dkt. No. 32, Attach. 1, at ¶ 14 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

15. If Plaintiff was found to have engaged in any misconduct during his DEP, DOCS had the right to impose discipline up to and including termination of Plaintiff without resort to the disciplinary procedures of Article 33 of the PEF/State Agreement and without resort to the grievance procedures of Article 34 of the PEF/State Agreement. ( Compare Dkt. No. 32, Attach. 1, at ¶ 15 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

16. In accordance with the Stipulation of Settlement, prior to the imposition of any discipline, DOCS had to provide written notice specifying the reasons for the proposed imposition of the penalty to Plaintiff. ( Compare Dkt. No. 32, Attach. 1, at ¶ 16 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

17. Plaintiff would have the opportunity to present any explanation or documentation in opposition to the imposition of the proposed discipline, which DOCS would consider before deciding whether to impose the penalty. After such consideration, the Director of Labor Relations was to make a decision regarding the imposition of the penalty and notify Plaintiff in writing. ( Compare Dkt. No. 32, Attach. 1, at ¶ 17 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

18. As set forth in the Stipulation of Settlement, the parties are bound by the decision regarding the imposition of the penalty and the decision is not subject to appeal through the contractual grievance procedures. ( Compare Dkt. No. 32, Attach. 1, at ¶ 18 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

19. When an employee is placed on a DEP, the matter is assigned to the representative in the Office of Labor Relations who is assigned to the geographical location of the employee's work place. ( Compare Dkt. No. 32, Attach. 1, at ¶ 19 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

20. That representative would then handle the administrative case work associated with that employee during that employee's DEP, including the receipt and review of periodic reports from the facility concerning the employee's work performance and reports of misconduct. ( Compare Dkt. No. 32, Attach. 1, at ¶ 20 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

21. Matthew Bloomingdale was the representative from the Office of Labor Relations who handled the administrative case work regarding Plaintiff during his DEP at Gowanda C.F. ( Compare Dkt. No. 32, Attach. 1, at ¶ 21 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

22. Since September 2007, and at all times relevant to the allegations contained in the complaint, Leslie McNamara was employed by DOCS as the Deputy Superintendent of Programs at Gowanda C.F. ( Compare Dkt. No. 32, Attach. 1, at ¶ 22 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

23. Deputy Superintendent McNamara retired from DOCS in December 2009. ( Compare Dkt. No. 32, Attach. 1, at ¶ 23 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

24. As Deputy Superintendent of Programs, Deputy Superintendent McNamara was responsible for the supervision of all program areas including academics, vocational trades, library and treatment programs. ( Compare Dkt. No. 32, Attach. 1, at ¶ 24 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

25. Deputy Superintendent McNamara also supervised ministerial employees that consisted of a Deacon, Protestant Chaplain, Catholic Chaplain and Muslim Chaplain. ( Compare Dkt. No. 32, Attach. 1, at ¶ 25 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

Plaintiff's Employment as a Muslim Chaplain at Gowanda C.F.

26. Plaintiff first began working at Gowanda C.F. in November 2007 as a Muslim Chaplain. ( Compare Dkt. No. 32, Attach. 1, at ¶ 26 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

27. As a Muslim Chaplain, or Imam, at Gowanda C.F., Plaintiff was responsible for, among other things, leading the primary congregational worship and prayer services for inmates of the Muslim faith at Gowanda C.F., maintaining and recording the proper inventory of oils ordered by Muslim inmates, making rounds and visiting inmates in their housing units, preparing various reports and paperwork, responding to various inquiries made by inmates, and handling reports of grave illness and death in an inmate's family and making arrangements for inmate visits in those situations. ( Compare Dkt. No. 32, Attach. 1, at ¶ 27 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

28. At the time Plaintiff arrived at Gowanda C.F., Deputy Superintendent McNamara was made aware that he was to serve a general DEP of two (2) years, commencing on November 1, 2007, and running through October 31, 2009. ( Compare Dkt. No. 32, Attach. 1, at ¶ 28 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with Dkt. No. 33 [Plf.'s Rule 7.1 Response, failing to deny fact in matching numbered paragraph with supporting record citation].)

29. As Deputy Superintendent of Programs and Plaintiff's supervisor, Deputy Superintendent McNamara was responsible for monitoring Plaintiffs employment at Gowanda C.F. during his DEP and to provide monthly DEP reports to the Director of Labor Relations of DOCS concerning the nature of any misconduct on the part of Plaintiff. ( Compare Dkt. No. 32, Attach. 1, at ¶ 29 [Def.'s Rule 7.1 Statement, asserting fact and supporting assertion with accurate record citation] with ...


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