Opinion
16-cv-1608 (GBD) (RWL)
08-20-2018
PATRICE DAWSON, Plaintiff, v. WILLIAM BROCK LONG, Administrator of the Federal Emergency Management Agency, Defendant.
REPORT AND RECOMMENDATION TO THE HONORABLE GEORGE B. DANIELS, United States District Judge:
Patrice Dawson, pro se, brings this action against William Brock Long, Administrator of the Federal Emergency Management Agency ("FEMA"), pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"). Dawson alleges that while employed as an Information Technology ("IT") Specialist at FEMA, he was subjected to discrimination, retaliation, and a hostile work environment. Defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, I recommend that Defendant's motion for summary judgment be GRANTED.
This case was originally brought against "FEMA." In an Order dated September 21, 2016, the Honorable George B. Daniels, United States District Judge, construed the claim to be brought against the then-FEMA administrator, W. Craig Fugate, pursuant to 42 U.S.C. § 2000e-16(c). Judge Daniels directed the Clerk of Court to amend the caption accordingly. Mr. Fugate has since been succeeded by William Brock Long. Pursuant to Federal Rule of Civil Procedure 25(d), Mr. Long is automatically substituted as the correct party. The Clerk of Court is directed to amend the caption as set forth above.
Title VII is "the exclusive remedy available to federal employees who allege employment discrimination" on the basis of race. Wilder v. United States Department of Veteran Affairs, 175 F. Supp. 3d 82, 88 (S.D.N.Y. 2016) (quoting Lucenti v. Potter, 432 F. Supp. 2d 347, 356 (S.D.N.Y. 2006)).
Submissions Considered
As required by Local Civil Rule 56.1, Defendant filed a statement of undisputed facts in connection with his motion for summary judgment. Dawson failed to respond to Defendant's statement of facts as required by Local Rule 56.1, and the Court could accordingly deem all facts set forth by Defendant as admitted. See Local Civil Rule 56.1(c); Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001); Perez v. Manna 2nd Avenue LLC, No. 15 Civ. 4655, 2017 WL 780812, at *2 (S.D.N.Y. Feb. 28, 2017). This Court has broad discretion to determine whether to do so. See Holtz, 258 F.3d at 73. In light of Dawson's pro se status and because this Court prefers to decide cases on the merits, the Court declines to presume Defendant's facts admitted and will instead conduct a review of the record where necessary. See Perez, 2017 WL 780812, at *2; Wali v. One Source Co., 678 F. Supp. 2d 170, 177-78 (S.D.N.Y. 2009); see also Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) ("[I]n determining whether the moving party has met [its] burden of showing the absence of a genuine issue for trial, 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.").
Additionally, the Court construes Dawson's Opposition to Motion for Summary Judgment (Dkt. 46), made in connection with the instant motion, as an affidavit insofar as the statements asserted therein are based on personal knowledge. Its contents are declared to under the penalty of perjury, and it is signed and dated. See 28 U.S.C. § 1746; Fed. R. Civ. P. 56(c)(4); Fitzgerald v. Henderson, 251 F.3d 345, 361 (2d Cir. 2001) (pro se documents sworn to and made on personal knowledge were properly considered on summary judgment); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (treating verified pleading attested to under penalty of perjury as affidavit).
The Court will also treat as an affidavit Dawson's Opposition to Motion for Summary Judgment made in connection with his Equal Employment Opportunity ("EEO") complaint (attached as Ex. E to Complaint, Dkt. 2). That opposition is sworn to under the penalty of perjury and dated but unsigned. However, that document is attached to Dawson's Complaint, which is signed, dated, and sworn to. In any event, because Dawson is pro se, any factual statement asserted with personal knowledge is properly considered on summary judgment even if the statement is unsworn. See Ong v. Park Manor (Middletown Park) Rehabilitation and Healthcare Center, No. 12 Civ. 974, 2017 WL 4326540, at *6 (S.D.N.Y. Sept. 28, 2017) (court considered unsworn statements in plaintiff's memorandum of law to the extent they were made on personal knowledge or were supported by other admissible evidence); Shepherd v. Fischer, No. 10-CV-1524, 2015 WL 1246049, at *8 n.22 (N.D.N.Y. Feb. 23, 2015) ("Although the allegations are contained in plaintiff's unsworn memorandum of law in support of his opposition, courts in this circuit routinely consider such statements in connection with a motion for summary judgment where the proponent of the statements is a pro se litigant, mindful of the duty to extend special solicitude to those individuals."), report and recommendation adopted by 2015 WL 1275298 (N.D.N.Y. March 18, 2015); Hamm v. Hatcher, No. 05 Civ. 503, 2013 WL 71770, at *7 (S.D.N.Y. Jan. 7, 2013) (considering unsworn statements in pro se plaintiff's memorandum of law, but "only to the extent that they [were] based on personal knowledge or supported by other admissible evidence in the record").
Factual Background
Dawson, who is African American, was hired by FEMA on December 10, 2012, as a "Local Hire." (Defendant's Statement Pursuant to Local Rule 56.1, Dkt. 41 ("Def. 56.1") ¶ 1.) Dawson was hired shortly after Hurricane Sandy to an "intermittent and temporary position." (Def. 56.1 ¶ 3.) Dawson signed a Local Hire Appointment Letter, which stated that he could be terminated at any time without cause. (Def. 56.1 ¶¶ 4-5.) The letter set forth that the appointment was for a period of up to 120 days, but that "an extension can be granted for up to one year." (Local Hire Appointment Letter, attached as part of Ex. A to Declaration of Anthony T. Kelly dated Dec. 28, 2017 ("Kelly Decl."), ¶ 8.) Dawson was hired as an IT Specialist, and his duties included providing support for FEMA employees in the use of their electronic devices. (Def. 56.1 ¶ 2.) Dawson states that he was the first such Local Hire at his office location and was assigned to the second floor, "which at the time was the most important floor." (Opposition to Motion for Summary Judgment, Dkt. 46 ("Pl. Memo."), at 3.)
Because this document is not numbered, the Court refers to the page numbers generated by the Court's Electronic Case Files system.
Plaintiff testified at his deposition that during the time period he worked for FEMA, the local office employed ten or twelve Local Hire IT Specialists, and "[m]ost of them" were African American, "[a]t least eight." (Def. 56.1 ¶ 6; Deposition of Patrice Dawson dated Aug. 15, 2017 ("Dawson Dep."), attached as Ex. A to Declaration of Kirti Vaidya Reddy dated Dec. 28, 2017, at 63.) He also testified that during that time, several other Local Hire IT Specialists were promoted over him to "IT Support leads." (Pl. Memo. at 3.)
From May 2013 to early November 2013, the IT Network Manager, Victor Bruce, who is Caucasian, supervised Dawson. (Declaration of Victor L. Bruce dated Dec. 28, 2017 ("Bruce Decl."), ¶¶ 1, 3, 7.) Dawson contends that on September 25, 2013, Bruce changed Dawson's floor. (Pl. Memo. at 3.) Bruce, in an affidavit filed in connection with Defendant's pending motion, states that during the time he worked with Dawson, Dawson "did not timely perform his duties and was insubordinate. In addition, [Bruce] received several complaints from Dawson's colleagues and FEMA employees that the IT unit serves regarding his failure to perform tasks." (Bruce Decl. ¶ 7.) Bruce also states that in September 2013, FEMA's response to Hurricane Sandy had stabilized, and staff was being reduced. (Bruce Decl. ¶ 8.) Bruce had initially recommended releasing Dawson, but according to Bruce, he reconsidered his decision because he thought Dawson's performance was improving, and Bruce recommended another individual be "demobilized." (Bruce Decl. ¶ 8.)
On October 3, 2013, Dawson asked Bruce to provide him administrative rights to FEMA's network domain, which Bruce denied. (Def. 56.1 ¶¶ 8-9.) Bruce states that such rights were generally not granted to Local Hires. (Bruce Decl. ¶ 9.) Dawson contends that Bruce "gave these rights to other IT Specialists and promoted them as well, although they had less experience than" him, and Dawson claims that the denial was based on his race and was made in retaliation for his "EEO Activity." (Pl. Memo. at 1.) At his deposition however, Dawson testified that the rights were only given to Local Hires who were "supervisors or floor leads." (Dawson Dep. at 120.) Dawson was not a supervisor or lead.
On October 29, 2013, Dawson contends that Bruce threw a form at him in front of other staff and "angrily demand[ed]" that Dawson perform a "setup" even though Dawson was asking Bruce what to set up. (Pl. Memo. at 1.)
Starting in October 2013, Anthony Kelly, who is African American, became Bruce's supervisor and Dawson's "second-line supervisor." (Kelly Decl. ¶¶ 2-4; Bruce Decl. ¶ 3.) Kelly quickly learned of conflict between Dawson and Bruce, and Bruce informed Kelly that Dawson "was a poor worker and unmotivated." (Kelly Decl. ¶ 8.) Kelly, Dawson, and Bruce met on November 8, 2013, for "formal counseling," and Kelly provided Dawson with a memorandum. (Kelly Decl. ¶ 10; Bruce Decl. ¶ 11; Memorandum for Pat Dawson dated Nov. 8, 2013 ("Counseling Memo."), attached as Ex. C to Kelly Decl.) The memorandum set forth that Dawson failed to follow up with customers on trouble tickets, and "users" were unable to locate Dawson. (Counseling Memo.) Dawson also failed to send daily status reports "in a timely manner." (Counseling Memo.) Dawson asserts that he "consider[s]" the write up "fraudulent." (Pl. Memo. at 1.) Dawson also states that during the meeting, he told Kelly that Bruce was discriminating against him. (Pl. Memo. at 4.) Kevin Cobb, Kelly's supervisor, then joined the meeting, and Bruce left at the request of Dawson. (Pl. Memo. at 4; Bruce Decl. ¶ 3.) Kelly decided to move Dawson to a different floor and assigned Dawson to a different supervisor, Tom Foo. (Kelly Decl. ¶ 10.)
Immediately after the meeting, Dawson states that he went to speak to a FEMA EEO counselor. (Dawson Dep. at 109-12; Pl. Memo. at 4.) That counselor was leaving for the day, but Dawson eventually spoke with an officer on November 10. (Pl. Memo. at 4.) Dawson states that he and the counselor agreed that because Bruce was demobilizing and that Dawson was moving to another floor, a mediation session was not necessary. (Pl. Memo. at 4.) Dawson did not file anything that day. (Dawson Dep. at 111.)
On November 22, 2013, Dawson asserts that he learned from other IT Specialists that Bruce had made "derogatory remarks" about his name, calling him "Patricia." (Pl. Memo. at 2; Plaintiff's Exhibits, Dkt. 45 ("Pl. Exhibits"), at 36; Defendant Federal Emergency Management Agency's Memorandum of Law in Support of Its Motion for Summary Judgment ("Def. Memo.") at 9.)
Because this submission is not organized or paginated, the Court refers to the pages generated by the Electronic Case Files system.
While Dawson was working under Foo, Foo reported to Kelly that Dawson "had poor work ethic," "had to be pushed to perform any work," "would sit at his desk with his headphones on and listen to music all day," and "did not look at the work orders or timely assist customers." (Kelly Decl. ¶ 12.) Additionally, when Dawson was transferred from Bruce to Foo, Kelly instructed Dawson to send a daily status report to Kelly; Dawson did so for two weeks, but then stopped providing the reports, despite Kelly's continued verbal requests. (Kelly Decl. ¶ 13.) In December 2013, Foo and Bruce were both demobilized, and Linda Floyd, who is Caucasian, became Dawson's supervisor. (Def. 56.1 ¶ 21; Kelly Decl. ¶ 14.)
Floyd also informed Kelly that Dawson "had a poor work ethic and was difficult to manage." (Kelly Decl. ¶ 15; Declaration of Linda Floyd dated Dec. 21, 2017 ("Floyd Decl."), ¶ 8.) Floyd asserts that Dawson was insubordinate and would take "loud," personal phone calls in the office throughout the day. (Floyd Decl. ¶¶ 8-9.)
On December 19, 2013, Floyd emailed the IT Specialists and informed them that there was overtime work available for "one tech each Saturday." (Floyd Decl. ¶ 13.) Floyd states that her practice was to give the overtime work to the individuals who responded the earliest. (Floyd Decl. ¶ 13.) Even though Dawson replied first, Floyd did not assign Dawson any overtime work; Floyd later claimed that she "overlooked his response." (Floyd Decl. ¶ 13; Pl. Memo. at 2.)
Kelly asserts that he began considering releasing Dawson in early January 2014 because of Dawson's poor work performance and because staff was being reduced "due to stabilization of the emergency." (Kelly Decl. ¶ 16.)
In December 2013 or January 2014, Floyd moved Dawson to the "hot seat." (Pl. Memo. at 2; Floyd Decl. ¶ 10.) Floyd explains that the "hot seat" was a desk near her for staff who needed additional guidance; it was also the "first line of contact" for the office. (Floyd Decl. ¶ 10; Patrice Dawson Notes, attached as Ex. A to Floyd Decl.) On January 13, 2014, Floyd denied Dawson administrative rights, even though, as Dawson asserts in his memorandum, they were required to do his job properly. (Pl. Memo. at 2-3.) Additionally, Dawson contends that between January 6 and 22, 2014, he was asked to file "Network forms" on a daily basis; no other IT Specialists were asked to do so. (Pl. Memo. at 2.) Dawson testified, however, that Floyd would also file forms. (Def. 56.1 ¶ 38.) Dawson also states that he had two "employment roles" to fill, and that no other IT Specialists were required to fill two roles. (Pl. Memo. at 3.)
During the morning of January 21, 2014, Floyd asserts that when she asked Dawson to assist a customer at the helpdesk, he refused, "stating that he was going to finish eating his breakfast of homemade pancakes, and that he did not care if he was written up." (Floyd Decl. ¶ 14.) Dawson contends that he told Floyd that he was already assisting another user and was waiting for the user to return, and that he decided to finish his breakfast. (Pl. Memo. at 2.) That same day, Floyd arranged a meeting with Kelly and sent him a summary of the issues she was having with Dawson. (Floyd Decl. ¶ 15; Patrice Dawson Notes.) Kelly states that at the meeting between him and Floyd, he decided to release Dawson. (Kelly Decl. ¶ 18.) Also on January 21, 2014, Dawson initiated EEO counseling by contacting an EEO counselor. (Def. 56.1 ¶ 32.)
On January 23, 2014, Kelly issued a letter to Dawson, stating that Dawson's appointment would end on January 31, 2014. (End Appointment to Local Hire Position, attached as Ex. D to Kelly Decl.) A few hours after Kelly issued the letter, he was informed by an EEO officer that Dawson had initiated an EEO complaint; Kelly asserts this was the first he had learned of the EEO complaint. (Kelly Decl. ¶ 21.)
On January 29, 2014, Dawson did not report to work, instead going to a different floor for an EEO mediation meeting at 9:30 a.m. (Def. 56.1 ¶ 36.) Dawson was generally required to report to work by 8:30 a.m., and at 9:11 a.m., Kelly sent Dawson an email regarding his tardiness; Kelly asserts that "[w]hile [Kelly] was aware of the fact that [Dawson] was going to attend an EEO counseling session that morning, [Dawson] was expected to perform his job duties until the time of the mediation." (Def. 56.1 ¶ 36; Kelly Decl. ¶ 23.) That same morning, Floyd also sent Dawson an email "regarding his tardiness, his excessive personal phone calls, his eating breakfast while customers were waiting for assistance, and his unexplained absences during the workday, because I was attempting to document the issues I was having with him, as requested by Kelly." (Floyd Decl. ¶ 19.)
Legal Standards
Under Rule 56 of the Federal Rules of Civil Procedure, a court will "grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); accord Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of identifying "the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The opposing party must then come forward with specific materials establishing the existence of a genuine dispute. Id. Where the nonmoving party fails to make "a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," summary judgment must be granted. Id. at 322.
In assessing the record to determine whether there is a genuine issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Smith v. Barnesandnoble.com, LLC, 839 F.3d 163, 166 (2d Cir. 2016). However, the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," and summary judgment may be granted where the nonmovant's evidence is conclusory, speculative, or not significantly probative. Anderson, 477 U.S. at 249-50. If there is nothing more than a "metaphysical doubt as to the material facts," summary judgment is proper. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Courts should be "particularly cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is in question," because "direct evidence of an employer's discriminatory intent will rarely be found." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997).
The moving party may demonstrate the absence of a genuine issue of material fact "in either of two ways: (1) by submitting evidence that negates an essential element of the non-moving party's claim, or (2) by demonstrating that the non-moving party's evidence is insufficient to establish an essential element of the non-moving party's claim." Nick's Garage, Inc. v. Progressive Casualty, 875 F.3d 107, 114 (2d Cir. 2017) (quoting Farid v. Smith, 850 F.2d 917, 924 (2d Cir. 1988)). However, "[t]he mere assertion by a defendant moving for summary judgment that the plaintiff 'has not produced any evidence' to support an essential element of the plaintiff's claim does not satisfy the burden that Rule 56(a) imposes . . . unless defendant also shows that plaintiff was obligated by discovery demand or court order to produce the evidence or that he voluntarily undertook to make the showing." Id. at 115 (quoting 10A Fed. Prac. & Proc. Civ. § 2727.1, at 491-92).
"[A] court should construe 'the submissions of a pro se litigant . . . liberally' and interpret them 'to raise the strongest arguments that they suggest.'" Berry v. Marchinkowski, 137 F. Supp. 3d 495, 521 (S.D.N.Y. 2015) (alteration in original) (quoting Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)).
Discussion
A. Failure to Exhaust Administrative Remedies
Defendant contends that any claims arising before December 7, 2013, should be dismissed because Dawson failed to timely exhaust his administrative remedies. Defendant is correct.
1. Legal Standard
"[P]rior to bringing suit under Title VII in federal court, 'a federal government employee must timely exhaust the administrative remedies at [his] disposal.'" Wilder, 175 F. Supp. 3d at 88 (quoting Mathirampuzha v. Potter, 548 F.3d 70, 74 (2d Cir. 2008)). This requires compliance with applicable regulations. Id. "Under these regulations, 'a government employee seeking to bring an employment discrimination claim must first seek informal . . . counseling within his agency, and then file a formal complaint with the agency.'" Id. (alteration in original) (quoting Young v. U.S. Department of Homeland Security, No. 10 Civ. 9571, 2011 WL 6057849, at *1 (S.D.N.Y. Dec. 5, 2011)). Specifically, the employee must:
(1) consult with a counselor at the relevant agency's Equal Employment Office ("EEO") within 45 days of the alleged discriminatory act, and, if the matter is not resolved after a mandatory counseling period,Mathirampuzha, 548 F.3d at 74-75. These procedural requirements "are not to be disregarded by courts out of a vague sympathy for particular litigants." Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152 (1994). However, "[t]his timeliness requirement is not jurisdictional, and the filing deadline is subject to waiver, estoppel, and equitable tolling." Bruce v. U.S. Department of Justice, 314 F.3d 71, 74 (2d Cir. 2002).
(2) file a formal written administrative complaint ("EEO complaint") within 15 days of receipt of the EEO counselor's notice of final interview and right to file a formal complaint ("EEO notice").
The employee may then file a civil action (i) within 90 days of notice of a final agency decision on his or her EEO complaint, or (ii) after 180 days from the filing of the EEO complaint if the agency has not yet rendered a decision.
2. Application
As Defendant concedes, Dawson's contact with an EEO counselor on January 21, 2014, qualified as proper contact for the purposes of administrative exhaustion, and that Dawson met the requirements for exhausting his claims arising after December 7, 2013. (See Declaration of James Montgomery dated Dec. 28, 2017 ("Montgomery Decl."), ¶ 3.)
Dawson also met with an EEO counselor on and around November 8, 2013, but that contact is insufficient to exhaust Dawson's claims. In order to properly "initiate contact" for the purposes of exhaustion, the employee must "(1) contact an agency official logically connected with the EEO process, even if that official is not an EEO counselor; (2) exhibit an intent to initiate the EEO process; and (3) allege that an incident in question is based on discrimination." Walia v. Napolitano, 986 F. Supp. 2d 169, 182-83 (E.D.N.Y. 2013) (quoting Lewis v. Snow, No. 01 Civ. 7785, 2003 WL 22077457, at *6 (S.D.N.Y. Sept. 8, 2003)).
Although Dawson met with an EEO counselor, the evidence is indisputable that Dawson did not intend to initiate the EEO process between November 8 and 10, 2013. Dawson states that he went to the EEO office on November 8, 2013, "for some counseling" but was unable to discuss the matter in substance until a November 10, 2013 meeting. (Pl. Memo. at 4.) At the November 10 meeting, he and an EEO employee agreed that since Bruce was demobilizing, "a mediation meeting was unnecessary because I had been moved to the 11th floor," and "it might be better to let [Bruce] leave and not have a mediation meeting with him." (Pl. Memo. at 4.) Furthermore, at his deposition, Dawson testified that he did not file anything or "write anything down" on November 8. (Dawson Dep. at 111.) Rather than evidencing an intent to initiate the EEO process at the time, Dawson's actions and words indicate the opposite.
The absence of records that otherwise would be expected to exist further shows that Dawson did not intend to commence a proceeding. The unrebutted sworn statement of James Montgomery, Civil Rights Program Unit Chief for FEMA, explains that when an employee "contacts an EEO counselor to initiate the EEO administrative process, a Notice of EEO Contact activity form is prepared and maintained in paper file." (Montgomery Decl. ¶ 2.) Further, "The Notice of EEO Contact Activity form is uploaded in our electronic system, icomplaint, if the complainant requests counseling. This form sets forth the date on which the employee first initiated contact with the EEO counselor, the basis of the complaint, and a summary of the issues." (Montgomery Decl. ¶ 2.) With respect to Dawson's November EEO meeting, however, there were no paper or electronic records at all, let alone ones that suggested any intent to initiate an EEO proceeding. (Montgomery Decl. ¶ 3.)
Defendant has provided abundant evidence showing that Dawson did not seek to initiate the formal EEO process until January 21, 2018. Dawson has provided no contrary evidence. Therefore, the presumptive date of contact is January 21, 2018. See Welsh v. Halger, 83 F. Supp. 3d 212, 220-21 (D.D.C. 2015) (individual must exhibit intent to initiate the EEO process).
3. Equitable Tolling
At the same time, there is no evidence by which a reasonable juror could conclude that any of one of the exceptions to failure to exhaust would apply. With respect to equitable tolling, "a district court must consider whether the person seeking application of the equitable tolling doctrine (1) has acted with reasonable diligence during the time period [he] seeks to have tolled, and (2) has proved that the circumstances are so extraordinary that the doctrine should apply." Zerilli-Edelglass v. N. Y.C. Transit Authority, 333 F.3d 74, 80-81 (2d Cir. 2003) (quoting Chapman v. ChoiceCare Long Island, 288 F.3d 506, 512 (2d Cir. 2002)). "The doctrine is 'highly case-specific,' and the 'burden of demonstrating the appropriateness of equitable tolling . . . lies with the plaintiff.'" Hall v. Potter, No. 06 CV 5003, 2009 WL 577753, at *6-7 (E.D.N.Y. March 4, 2009) (alteration in original) (quoting Boos v. Runyon, 201 F.3d 178, 184-85 (2d Cir. 2000)). Dawson has set forth no set of facts suggesting extraordinary circumstances or reasonable diligence with respect to the time period preceding December 7, 2013. Accordingly, equitable tolling cannot survive summary judgment. See, e.g., Boos, 201 F.3d at 185 (affirming grant of summary judgment where plaintiff failed to set forth facts demonstrating extraordinary circumstances); Hall, 2009 WL 577753, at *7 (collecting cases) (extraordinary circumstances only found in a limited number of cases).
4. Waiver
Defendant contends that even though Dawson's EEO complaint was decided on the merits and FEMA did not raise a timeliness objection, FEMA has not waived any timeliness argument. (EEOC Final Order attached as Ex. B to Montgomery Decl., at 3.) This issue is not well settled. Generally, "agencies do not waive a defense of untimely exhaustion merely by accepting and investigating a discrimination complaint." Belgrave v. Pena, 254 F.3d 384, 387 (2d Cir. 2001) (quoting Bowden v. United States, 106 F.3d 433, 438 (D.C. Cir. 1997)); see also Mercado v. Ritz-Carlton, 410 F.3d 41, 45 (1st Cir. 2005) (collecting cases) (it is a "well-settled rule that agencies do not waive a timeliness defense merely by accepting and investigating a discrimination complaint" (citations and internal quotation marks omitted)). The Second Circuit in Bruce held that a federal agency waives the defense "by making an express finding that the complaint was timely or failing to appeal an EEOC determination of timeliness." Bruce, 314 F.3d at 74. However, the Second Circuit has not set any binding precedent addressing a situation where a federal agency not only investigates and accepts a complaint, but also decides a complaint on the merits and makes no express findings or objections as to timeliness.
In dicta as well as a non-precedential decision, the Second Circuit has given divergent views on this issue. In Belgrave, the Second Circuit cited a Fifth Circuit case and quoted the following language in a parenthetical: "In order to waive a timeliness objection, the agency must make a specific finding that the claimant's submission was timely." Belgrave, 254 F.3d at 387 (emphasis added) (quoting Rowe v. Sullivan, 967 F.2d 186, 191 (5th Cir. 1992)). But one year later, in Bruce, the Second Circuit endorsed as "sound" a case in which the Seventh Circuit "conclude[d] that when an agency decides the merit of a complaint, without addressing the question of timeliness, it has waived a timeliness defense in a subsequent lawsuit." Bruce, 314 F.3d at 75 (alteration in original) (quoting Ester v. Principi, 250 F.3d 1068, 1071-72 (7th Cir. 2001)).
Later, in a 2010 unpublished summary order, the Second Circuit expressly held that the government had not waived a timeliness objection where the federal agency had ruled on the merits of a complaint but had not raised a timeliness issue. Lanham v. Mansfield, 400 F. App'x 609, 611 (2d Cir. 2010). The Second Circuit stated, "A timeliness objection is only waived where an agency makes 'a specific finding that the claimant's submission was timely.'" Lanham, 400 F. App'x at 611 (emphasis added) (quoting Belgrave, 254 F.3d at 386 (quoting Rowe, 967 F.2d at 191)). Lanham did not address Bruce or Ester.
District courts in this Circuit are split on the issue: some rely on Bruce's endorsement of Ester, while others rely on Belgrave's citation to Rowe. One district court has endorsed Lanham's holding. Other district court decisions simply hold that an agency does not waive a timeliness objection where it rules on a complaint and does not make an explicit finding or objection as to timeliness. None have grappled with the tension between Bruce, Belgrave, and Lanham.
See Giarrizzo v. Mukasey, No. 07 CV 801, 2011 WL 13206091, at *10-11 (N.D.N.Y. March 31, 2011); DeSalvo v. Social Security Administration, No. 02 CV 1148, 2007 WL 2874460, at *6-7 (N.D.N.Y. Sept. 27, 2007); Tyree v. Zenk, No. 05 CV 2998, 2007 WL 527918, at *8 (E.D.N.Y. Feb. 14, 2007).
See Lanham v. Shinseki, 662 F. Supp. 2d 238, 242-43 (D. Conn. 2009).
See Crane v. Shulkin, 293 F. Supp. 3d 352, 362 n.4 (W.D.N.Y. 2018); Syrkin v. State University of New York, No. 04 CV 4336, 2005 WL 2387819, at *8 (E.D.N.Y. Sept. 29, 2005).
See McMahon v. Napolitano, No. 13 CV 1404, 2013 WL 13731355, at *4 (E.D.N.Y. Sept. 4, 2015); Lewis, 2003 WL 22077457, at *7; Richetts v. Ashcroft, No. 00 Civ. 1557, 2003 WL 1212618, at *7 (S.D.N.Y. March 17, 2003). --------
Considering the weight of precedent, the Court determines that the government has not waived timeliness here for two reasons. First, the Second Circuit's decision in Lanham is the first decision by the Second Circuit to decide the issue on the merits, and it is also the most recent. While Lanham is in tension with Bruce's endorsement of Ester, Bruce's discussion of Esters rule was only dicta, which, while entitled to weight, is not binding. See, e.g., Kivo v. Blumberg Exelsior, Inc., 982 F. Supp. 2d 217, 223-24 (E.D.N.Y. 2013). And while unpublished Second Circuit decisions such as Lanham are not binding, they are "highly persuasive" and predictive of what the Second Circuit may do in the future. See, e.g., Liana Carrier Ltd. v. Pure Biofuels Corp., No. 14 Civ. 3406, 2015 WL 10793422, at *4 (S.D.N.Y. Aug. 14, 2015). Given Lanham's decisive holding on this precise issue, the Court determines that applying Lanham is prudent.
Second, the Supreme Court has stated in no uncertain terms that, at least in the statutory context, waivers of sovereign immunity must be "unequivocally expressed" and are to be construed narrowly and applied "sparingly." Department of Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999) ("a waiver must also be 'unequivocally expressed' in the statutory text"); see also National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (doctrines like waiver are to "be applied sparingly"); U.S. Department of Energy v. Ohio, 503 U.S. 607, 615 (1992) ("Waivers of immunity must be 'construed strictly in favor of the sovereign.'" (quoting McMahon v. United States, 342 U.S. 25, 27 (1951))). Given the Supreme Court's cautionary approach to waivers of sovereign immunity, it is sensible to require an explicit wavier or finding of timeliness, even when the agency has ruled on the merits of a complaint without addressing timeliness. Accordingly, because FEMA neither expressly waived timeliness nor made an explicit finding of timeliness, Dawson does not benefit from the waiver doctrine.
5. Equitable Estoppel
Finally, equitable estoppel does not apply. Equitable estoppel "is not available against the government 'except in the most serious circumstances,' and is applied 'with the utmost care and restraint.'" Rojas-Reyes v. Immigration and Naturalization Service, 235 F.3d 115, 126 (2d Cir. 2000) (citations omitted) (first quoting United States v. RePass, 688 F.2d 154, 158 (2d Cir. 1982), and then quoting Estate of Carberry v. Commissioner of Internal Revenue, 933 F.2d 1124, 1127 (2d Cir. 1991)). Estoppel applies only in "those limited cases where the party can establish both that the Government made a misrepresentation upon which the party reasonably and detrimentally relied and that the Government engaged in affirmative misconduct." Lewis, 2003 WL 22077457, at *6 (quoting City of New York v. Shalala, 34 F.3d 1161, 1168 (2d Cir. 1993)). Dawson has not suggested that this doctrine applies nor are there any facts in the record indicating that these requirements are met.
In short, any claim by Dawson predating December 7, 2013, is time barred. As discussed below, however, summary judgment in favor of Defendant would still be warranted even taking into account the pre-December 7, 2013 claims. B. Employment Discrimination Claim
When a plaintiff alleges disparate treatment but does not have direct evidence of discrimination, the court analyzes claims of Title VII employment discrimination under the three-stage analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Vega v. Hempstead Union Free School District, 801 F.3d 72, 82-83 (2d Cir. 2015). First, a plaintiff must establish a prima facie case of discrimination under Title VII by showing that "(1) [he] is a member of a protected class; (2) [he] is qualified for her position; (3) [he] suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination." Id. at 83 (quoting Weinstock v. Columbia University, 224 F.3d 33, 42 (2d Cir. 2000)); accord Lambert v. Trump International Hotel and Tower, 304 F. Supp. 3d 405, 417 (S.D.N.Y. 2018). The burden at this stage is "minimal" or "de minimis." Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005) (quoting Zimmermann v. Associates First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001)). "Generally, '[i]t is the judge, not the jury, who must decide whether [a] plaintiff has satisfied the requirements of McDonnell Douglas's minimal version of a prima facie case.'" Gordon v. New York City Board of Education, 232 F.3d 111, 116 (2d Cir. 2000) (alterations in original) (quoting Sharkey v. Lasmo (AUL Ltd.), 214 F.3d 371, 374 (2d Cir. 2000)).
If the plaintiff makes out a prima facie case, the burden then shifts to the defendant to "articulate some legitimate, non-discriminatory reason" for the disparate treatment. Vega, 801 F.3d at 83 (quoting McDonnell Douglas, 111 U.S. at 802). If the defendant articulates such a reason for its action, the plaintiff must prove, by a preponderance of the evidence, that the employer's reason was actually pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); Vega, 801 F.3d at 83.
Defendant does not contend that Dawson is not a member of a protected class or that he was not qualified for his position. Instead, Defendant argues that (1) all but two of the actions complained of by Dawson are not materially adverse, (2) no inference of racial discrimination can be drawn from the evidence, and (3) the record indisputably shows that Defendant had valid reasons for releasing Dawson that were not pretextual. These arguments each have merit and, taken together, warrant summary judgment on Dawson's discrimination claim.
1. Adverse Employment Actions
Defendant does not contend that Dawson's release from employment and denial of overtime were not adverse actions. Instead, Defendant claims that the remaining alleged adverse employment actions - including denial of administrative access to FEMA's network, assignment to the hot seat, filing forms, being asked to assist customers instead of eating a meal, and the formal and informal write-ups - do not constitute material adverse actions.
A plaintiff sustains an adverse employment action only if he endures a "materially adverse change" in the terms or conditions of employment. Galabya v. New York City Board of Education, 202 F.3d 636, 640 (2d Cir. 2000). "A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." Id. (alteration in original) (quoting Crady v. Liberty National Bank and Trust Co. of Indiana, 993 F.2d 132,136 (7th Cir. 1993)). "An adverse employment action is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities." Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (internal quotation marks omitted) (quoting Galabya, 202 F.3d at 640). The Second Circuit has held that the assignment of "a disproportionately heavy workload" may constitute an adverse employment action. Vega, 801 F.3d at 85 (quoting Feingold v. New York, 366 F.3d 138, 152-53 (2d Cir. 2004) (holding that reshuffling cases to give certain ALJs an excessively heavy workload was an adverse action).
Many of the actions complained of by Dawson simply do not rise to the level required by the Second Circuit to qualify as an adverse action. There is no evidence suggesting that having to work at the hot seat, filing forms, not receiving administrative rights, receiving write-ups, being called a derogatory name (Patricia), and being asked to work during a meal materially affected Dawson's employment. Nor is there any evidence that those actions affected the terms of his employment, or that the changes in responsibilities were less suited to Dawson's skills or created an excessively heavy workload. Those incidents are therefore not actionable. See, e.g., Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 570 (2d Cir. 2011) (criticism of employee does not count as material adverse action); Galabya, 202 F.3d at 640 (transfer to inferior classroom and different class level was not sufficient because plaintiff failed "to show that the transfer was to an assignment that was materially less prestigious, materially less suited to his skills and expertise, or materially less conducive to career advancement"); Lambert, 304 F. Supp. 3d at 419-20 (assignment to menial tasks and "false write-up" insufficient to demonstrate materially adverse action at summary judgment); Taylor v. City of New York, 207 F. Supp. 3d 293, 307 (S.D.N.Y. 2016) (transfer of employee did not qualify as adverse action where plaintiff failed to allege change in terms of employment); Martinez v. New York City Department of Education, No. 04 Civ. 2728, 2008 WL 2220638, at *12 (S.D.N.Y. May 27, 2008) ("[I]ncidents where [supervisor] publicly yelled at Plaintiff for various reasons or called him 'shit' . . . constitute, as a matter of law, the sorts of petty slights and personality conflicts that are not actionable."); Katz v. Beth Israel Medical Center, No. 95 Civ. 7183, 2001 WL 11064, at *14 (S.D.N.Y. Jan. 4, 2001) ("Being yelled at, receiving unfair criticism, receiving unfavorable schedules or work assignments, and being told to retire or work part time if she did not like the schedule also do not rise to the level of adverse employment actions; they do not affect any ultimate employment decisions.").
Similarly, the throwing of a form at Dawson by Bruce does not qualify as an adverse employment action because there is no evidence that the terms of Dawson's employment were altered as a result. See Mathirampuzha, 548 F.3d at 73, 79 (holding at summary judgment that physical assault of plaintiff, including punching and spitting, was not sufficient to qualify as an adverse action because there was no evidence that it altered plaintiff's employment). "[N]ot every unpleasant matter short of discharge or demotion constitutes an adverse action." Delgado v. Triborough Bridge & Tunnel Authority, 485 F. Supp. 2d 453, 461 (S.D.N.Y. 2007). As a result, Dawson's only actionable adverse employment actions are his denial of an overtime opportunity and his termination.
2. Inference of Unlawful Racial Discrimination
Defendant argues that Dawson's discrimination claim must be dismissed because there are no circumstances suggesting that the adverse actions taken against him are attributable to a discriminatory motive. "On a motion for summary judgment, the court must determine whether the 'proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive.'" Taylor v. Local 32E Service Employees International, Union, 286 F. Supp. 2d 246, 253 (S.D.N.Y. 2003) (quoting Kearney v. Pyramid Management Group, Inc., No. 98 Civ. 0531, 2000 WL 744000, at *10 (W.D.N.Y. June 5, 2000)). "In doing so, the court may look to factors such as the employer's continued solicitation of applications from people with qualifications similar to those of plaintiff after the plaintiff's discharge, racially offensive language used to criticize the plaintiff, disparaging comments about people in the plaintiff's protected class, more favorable treatment to others not in the protected group, the circumstances leading to the plaintiff's discharge and the timing of the discharge." Id. "A plaintiff may raise an inference of discrimination for the purposes of making out a prima facie case by relying on the theory of disparate treatment; that is, by showing that her employer treated her less favorably than a similarly situated employee outside her protected group." Risco v. McHugh, 868 F. Supp. 2d 75, 100 (S.D.N.Y. 2012) (citing Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003)).
As Defendant correctly points out, there is no evidence that would allow a reasonably jury to infer discrimination. To begin, there is no direct evidence of discriminatory animus toward Dawson. Dawson asserts generally in his papers that he was discriminated against by his supervisors, but his assertions are conclusory, and the Second Circuit has held that conclusory allegations of discrimination are insufficient. See Patterson v. County of Oneida, N.Y., 375 F.3d 206, 222 (2d Cir. 2004). Indeed, Dawson explicitly testified in deposition that Defendant did not discriminate against him because of his race, when the following colloquy took place:
Q Are you stating at this point that you are no longer alleging that defendants discriminated against you based on your race, is that correct?
A Yes. We can move in that direction, correct.
Q I'm not sure what "move in that direction" means. Are you withdrawing the claim that -
A Yes.
Q Just to make the record clear, are you withdrawing the claim that defendants discriminated against you based on your race?
A Yes.(Dawson Dep. at 17.)
Q As being black?
A Yes.
Q So you are only pursuing -
A Retaliation.
Moreover, the record is devoid of any evidence that Dawson was treated less favorably than a similarly situated employee outside his protected group. See Patterson, 375 F.3d at 224 ("Given this record, we conclude that the district court correctly ruled that [plaintiff] had not proffered any evidence of facts relating to the termination of his employment that would permit a rational factfinder to infer that the termination was motivated by his race . . . ."). Dawson merely describes his "[alleged] mistreatment and ask[s] the court to conclude that it must have been related to [his] race. This is not sufficient." Grillo v. New York City Transit Authority, 291 F.3d 231, 235 (2d Cir. 2002) (first and third alteration in original) (quoting Lizardo v. Denny's, Inc., 270 F.3d 94, 104 (2d Cir. 2001)); see also Gonzalez v. Beth Israel Medical Center, 262 F. Supp. 2d 342, 353 (S.D.N.Y. 2003) (finding plaintiff's self-serving statement that she was given more work than her co-workers, without direct or circumstantial evidence to support the charge, insufficient to defeat a motion for summary judgment). Dawson's discrimination claim must be dismissed.
3. FEMA's Legitimate Reasons for Its Actions
Even if Dawson's prima facie case succeeded, Dawson would not be able to overcome FEMA's non-retaliatory reasons for its actions against Dawson. "It is well- settled that an employer may permissibly terminate an employee based on inappropriate comments, perceived insubordination, or disruptive behavior in the workplace." Hartley v. Rubio, 785 F. Supp. 2d 165, 178-79 (S.D.N.Y. 2011). Here, Defendant points to a catalogue of evidence demonstrating legitimate reasons to terminate Dawson.
As a result of FEMA's efforts winding down in response to Hurricane Sandy, FEMA decided to release additional employees in January 2014. (Kelly Decl.¶ 19.) Kelly decided to release Dawson because of FEMA's downsizing efforts and Dawson's poor job performance and insubordination. (Kelly Decl. ¶ 19.) Dawson's poor work performance is well set out in several of Defendant's employees' declarations, where numerous supervisors point out Dawson's insubordination and poor work ethic, generally and specifically. For example, Kelly stated that Dawson would not follow-up with or timely assist customers and that customers could not locate him; additionally, Dawson failed to provide status reports as required. (Kelly Decl. ¶¶ 9, 12-13.) Floyd stated that Dawson would take long, personal phone calls and was argumentative with supervisors; additionally, when specifically asked to help a customer during a meal, he refused. (Floyd Decl. ¶¶ 8-9, 14.) Bruce received complaints from Dawson's colleagues and FEMA employees that Dawson failed to perform his job duties and was belligerent and disrespectful. (Bruce ¶ 10.) This evidence is more than sufficient to satisfy Defendant's burden on the second step. See, e.g., Schnabel v. Abramson, 232 F.3d 83, 87-88 (2d Cir. 2000) (hostility toward clients, difficulty following instruction, outright insubordination, and inept performance furnished legitimate reasons for termination); Matima v. Celli, 228 F.3d 68, 79 (2d Cir. 2000) (confrontations with supervisors and insubordination constituted legitimate reasons for termination); Hartley, 785 F. Supp. 2d at 179-80 (disruptive behavior and insubordination was enough to satisfy defendant's burden at second step).
Because Defendant has pointed to evidence of a legitimate, non-discriminatory reason for the adverse employment actions taken against Dawson, Dawson "must then come forward with evidence that [defendant's] proffered, non-discriminatory reason is a mere pretext for actual discrimination." Weinstock, 224 F.3d at 42. He must submit "sufficient evidence to support a rational finding that the legitimate non-discriminatory reasons proffered by the [defendant] were false, and that more likely than not [discrimination] was the real reason for the [employment action]." Id. (quoting Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996)). At the summary judgment stage, a plaintiff "must offer more than self-serving and conclusory allegations that the defendants' proffered reasons were false." Hartley, 785 F. Supp. 2d at 180 (citing Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)).
Dawson does no more than doing just that - offering only conclusory allegations. (See Pl. Memo at 1-2.) There is no record evidence of discrimination or that FEMA's reasons for releasing Dawson were pre-textual. Accordingly, Dawson's discrimination claim should be dismissed. See, e.g., Farias v. Instructional Systems, 259 F.3d 91, 98-99 (2d Cir. 2001) (affirming summary judgment on discrimination claim where "[p]laintiffs failed to produce any evidence, other than conclusory statements unsupported by the record, to rebut the legitimate, nondiscriminatory reasons offered by [defendant], let alone evidence that could reasonably support a verdict in their favor"); Hartley, 785 F. Supp. 2d at 181 (granting motion for summary judgment where there was no evidence of discrimination but there was evidence of plaintiff's insubordinate and disruptive conduct); DeJesus v. District One Community Education Council, No. 08 Civ. 10666, 2010 WL 3959624, at *4 (S.D.N.Y. Sept. 14, 2010) (Daniels, J.) (dismissing discrimination claim on summary judgment where plaintiff failed to provide evidence to rebut defendants' legitimate reasons for terminating her); Fahmy v. Duane Reade, Inc., No. 04 Civ. 1798, 2006 WL 1582084, at *7 (S.D.N.Y. June 9, 2006) (in making a determination as to whether a company's decision not to promote an employment was pretextual, "it is not the function of a fact finder to second guess business decisions" (citing Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988))). C. Retaliation Claim
As with Dawson's discrimination claim, his retaliation claim is analyzed under the three-step formula set forth in McDonnel Douglas. "To establish a prima facie case of retaliation, an employee must show that (1) she 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." Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012). "Once the plaintiff has established a prima facie showing of retaliation, the burden shifts to the employer to articulate some legitimate, non-retaliatory reason for the employment action." Zann Kwan v. Andalex Group LLC, 737 F.3d 834, 845 (2d Cir. 2013).
"After the defendant has articulated a non-retaliatory reason for the employment action, the presumption of retaliation arising from the establishment of the prima facie case drops from the picture." Id. If the defendant establishes a non-retaliatory motive, the plaintiff may still prevail by demonstrating that the stated rationale is pretextual. Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173, 179-80 (2d Cir. 2005). "The plaintiff must produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and that more likely than not discrimination was the real reason for the employment action." Weinstock, 224 F.3d at 42 (internal quotation and alteration marks omitted) (quoting Van Zant, 80 F.3d at 714). A plaintiff may prove a retaliatory motive by "demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate, nonretaliatory reasons for its action." Zann Kwan, 737 F.3d at 846.
"[A] plaintiff alleging retaliation in violation of Title VII must show that retaliation was a 'but-for' cause of the adverse action, and not simply a 'substantial' or 'motivating' factor in the employer's decision. Zann Kwan, 737 F.3d at 845 (quoting University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338, 360 (2013)). "However, 'but-for' causation does not require proof that retaliation was the only cause of the employer's action, but only that the adverse action would not have occurred in the absence of the retaliatory motive." Id. at 846.
Defendant's arguments touch each step of the analysis, and the Court will address them in turn.
1. Protected Activity
"A protected activity is action that 'protests or opposes statutorily prohibited discrimination.'" Giscombe v. New York City Department of Education, 39 F. Supp. 3d 396, 401 (S.D.N.Y. 2014) (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000)). "'Informal complaints to supervisors,' instituting litigation, or filing a formal complaint are protected activities under Title VII." Id. (quoting Thomas v. iStar Financial, Inc., 438 F. Supp. 2d 348, 364 (S.D.N.Y. 2006), and Lewis v. New York City Transit Authority, 12 F. Supp. 3d 418, 448-50 (E.D.N.Y. 2014)).
Defendant does not dispute that Dawson engaged in protected activity when he filed his EEO complaint on January 23, 2014. Defendant also does not dispute that engaging with an EEO counselor after the November 8, 2013 meeting was protected activity. (Def. Memo. at 19-20.) However, Defendant appears to have overlooked another protected activity by Dawson: Dawson asserts that at the November 8 meeting between Kelly, Bruce, and Dawson, Dawson stated that Bruce was "Racially Discriminating against [him]," and Kelly confirmed this account. (Pl. Memo. at 4; Pl. Exhibits at 41.) Such complaints to supervisors qualify as protected activity. See, e.g., Giscombe, 39 F. Supp. 3d at 401; Lewis, 12 F. Supp. 3d at 449. There is no evidence in the record of other protected activities, and Dawson therefore has no claim based on adverse actions before November 8, 2013.
2. Knowledge of Protected Activity
Defendant makes no argument as to the knowledge prong, nor could they. "The Second Circuit has established that general corporate knowledge is sufficient to satisfy the second element of a prima facie case of retaliation. An individual decisionmaker's lack of knowledge of [plaintiff's] protected activity does not undermine Defendant's knowledge of her informal EEO complaint." Risco, 868 F. Supp. 2d at 112. FEMA does make arguments regarding the knowledge of Dawson's supervisors, but those are properly addressed at the later stage assessing causation. (See Def. Memo. at 20-21.)
3. Adverse Actions
The standard for what constitutes an adverse action in a retaliation claim is somewhat more relaxed than that for a discrimination claim. "An 'adverse employment action' for purposes of a retaliation claim is one that 'a reasonable employee would have found . . . materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Senno v. Elmsford Union Free School District, 812 F. Supp. 2d 454, 472 (S.D.N.Y. July 28, 2011) (quoting Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 67-69 (2006)). Anti-retaliation protection "extends beyond workplace-related or employment-related retaliatory acts and harm." Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010) (quoting White, 548 U.S. at 67). However, "'[p]etty slights or minor annoyances that often take place at work and that all employees experience' do not constitute actionable retaliation," and the "retaliation must produce an injury or harm." Id. (quoting White, 548 U.S. at 67-68). Whether an act is retaliatory is measured objectively, from the perspective of a reasonable employee, but the court must take the surrounding circumstances and context into account. Id.
Dawson's release and the denial of overtime in December 2013 qualify as adverse actions. Again, Defendant does not dispute this. However, Defendant contends that the other alleged actions against Dawson do not qualify as adverse. The Court notes that no actions taken before November 8, 2013 qualify, as those actions occurred before any protected activity was initiated, as set forth above. Those actions include Dawson being denied administrate rights in October and Bruce throwing a form at Dawson.
Dawson asserts that being denied administrative computer network rights by Floyd on January 13, 2014, was retaliatory. But as Dawson testified, Local Hires did not receive administrative rights unless they were a supervisor or floor lead (which he was not), and he was able to perform tasks requiring administrative rights by asking a manager. (Dawson Dep. at 120, 133.) Having to ask a manager for administrative rights, along with being asked to file forms, helping a customer during a meal, and being moved to different floors and offices are mere inconveniences "that come with working at a large bureaucracy." Gelin v. Geithner, No. 06 Civ. 10176, 2009 WL 804144, at *21 (S.D.N.Y. March 26, 2009) (quoting Moultrie v. Potter, No. 04 Civ. 6887, 2007 WL 2106196, at *9-10 (S.D.N.Y. July 24, 2007)). Dawson has neither alleged nor presented evidence suggesting those incidents were materially adverse or that they would dissuade a reasonable worker from filing a charge of decimation. See, e.g., Nieblas-Love v. New York City Housing Authority, 165 F. Supp. 3d 51, 71 (S.D.N.Y. 2016) (assignment to "worst assignment" at employment was insufficient to demonstrate adverse action); Pacheco v. New York Presbyterian Hospital, No. 02 Civ. 9438, 2009 WL 55886, at *20-21 (S.D.N.Y. Jan. 9, 2009) (finding that transfer that was not "less desirable or disadvantageous than [plaintiff's] prior job" and a small increase in workload, including receipt of a difficult assignment, did not meet White's standard for adverse employment actions).
Additionally, the stray remark about Dawson's first name (calling him Patricia) does not qualify as materially adverse because it was trivial, and Dawson has not presented evidence that it would deter a reasonable employee from filing a charge of discrimination. See Fletcher v. ABM Building Value, No. 14 Civ. 4712, 2018 WL 1801310, at *21 (S.D.N.Y. March 28, 2018) (derogatory and discriminatory remarks that "got worse" after plaintiff complained of discrimination did not qualify as adverse action); Esar v. JP Morgan Chase Bank N.A., No. 15 CV 382, 2018 WL 2075421, at *13 (E.D.N.Y. May 3, 2018) (stray remark about plaintiff did not qualify as adverse action); De La Rosa v. City of New York Police Department, No. 09 Civ. 5290, 2010 WL 4177626, at *11 (S.D.N.Y. Oct. 22, 2010) ("As for the allegations of name calling and derogatory remarks, such comments also do not constitute an adverse change in employment. 'While verbal abuse might at times be sufficiently severe and chronic to constitute an adverse employment action, such behavior, without more, hardly rises to the level of actionable retaliation.'" (quoting Brennan v. City of White Plains, 67 F. Supp. 2d 362, 374 (S.D.N.Y. 1999))); Wilson v. Emhart Teknologies LLC, 566 F. Supp. 2d 120, 123 (D. Conn. 2008) (declining to recognize mere conflicts with supervisors as adverse employment actions where no negative consequence, such as termination, resulted from the disputes); Davis v. Verizon Wireless, 389 F. Supp. 2d 458, 478 (W.D.N.Y. 2005) ("Menacing looks, name calling, or being shunned by co-workers does not constitute an adverse employment action.").
The November 8, 2018 memorandum and the January 2014 emails regarding Dawson's conduct also do not qualify as adverse actions. As the Second Circuit held in Tepperwein, counseling memos and criticism of an employee are not adverse employment actions. 663 F.3d at 570. While such criticism may rise to an adverse action if it initiates a suspension, actual discipline, or other adverse effects to employment, there is no such evidence in the record that the emails and memo resulted in such. See id.; see also Chang v. Safe Horizons, 254 F. App'x 838, 839 (2d Cir. 2007) ("[O]ral and written warnings do not amount to materially adverse conduct . . . .").
Finally, Dawson claims that at the November 8, 2013 meeting with Kelly, Bruce, and Cobb, Cobb stated to Dawson that Kelly would not "put [a] form in [Dawson's] file and [would] keep it in his back pocket." (Pl. Memo. at 4.) Dawson testified at his deposition that at the meeting, he stated that he was "going to complain about this writeup, and I'm not allowing this to go, to just let it go. So Kevin Cobb and Anthony Kelly they had said, look, we're not going to do anything with this paper, we're going to go put it in our back pocket . . . ." (Dawson Dep. at 156.) Dawson does not specify what the form was (and there is no evidence of any such form in the record), or set forth evidence that would demonstrate that a reasonable employee would be deterred from filing a discrimination complaint. To the contrary, immediately after the meeting, Dawson met with an EEO officer. In short, none of the conduct Dawson complains of qualifies as adverse actions, except his denial of overtime and release from employment.
4. Causal Connection
Although Dawson's denial of overtime and termination qualify as actionable adverse actions for a retaliation claim, there is no evidence by which a reasonable jury could find a causal connection between those actions and Dawson's EEO activity.
Causal connection may be established in two ways: "indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct" or "directly, through evidence of retaliatory animus directed against the plaintiff by the defendant." Hicks, 593 F.3d at 170 (citing Gordon, 232 F.3d at 117). There is no direct evidence of retaliatory animus here, so Dawson instead must rely on indirect evidence. The analysis below first addresses whether there is evidence of causal connection with respect to Dawson's termination of employment, and then addresses his denial of overtime.
a. Dawson's Release from Employment on January 23, 2014
As an initial matter, the only protected activity that can form the basis of a retaliation claim with respect to Dawson's termination on January 23, 2014, is his January 21, 2014 EEO activity. That is because of the lapse of time between Dawson's earlier protected activity - November 8, 2013, when he told Kelly that Bruce was "racially discriminating" against him - and the date of termination. The period between those events is two and a half months. Under the indisputable facts of this case, that period is too long to create the inference of causation.
Where, as here, "a plaintiff is relying solely on temporal proximity, the protected activity and an adverse employment action must occur 'very close' to each other." Petrisch v. JP Morgan Chase, 789 F. Supp. 2d 437, 450 (S.D.N.Y. 2011) (quoting Clark County School District v. Breeden, 532 U.S. 268, 273 (2001)). The Second Circuit "has 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." Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir. 2001). However, at summary judgment, "courts in this Circuit have consistently held that a passage of more than two months between the protected activity and the adverse employment action does not allow for an inference of causation" where temporal proximity is the only evidence from which to infer causation. Moccio v. Cornell University, 889 F. Supp. 2d 539, 587-88 (S.D.N.Y. 2012); see, e.g., Hahn v. Bank of America Inc., No. 12 Civ. 4151, 2014 WL 1285421, at *18 (S.D.N.Y. March 31, 2014) (eleven weeks gap between complaint and termination too long to establish casual connection); Weston v. Optima Communications Systems, Inc., No. 09 Civ. 3732, 2012 WL 752440, at *7 n.5 (S.D.N.Y. March 8, 2012) (Daniels, J.) (holding that while there is no specific dividing line, "many courts in this circuit have held that periods of two months or more defeat an inference of causation" (quoting Ragin v. E. Ramapo School District, No. 05 Civ. 6496, 2010 WL 1326779, at *24 (S.D.N.Y. March 31, 2010))); Garrett v. Garden City Hotel, Inc., No. 05 CV 0962, 2007 WL 1174891, at *21 (E.D.N.Y. April 19, 2007) (no causal connection found where there was a two-and-a-half month gap between protected activity and adverse employment action); Crews v. Trustees of Columbia University in City of New York, 452 F. Supp. 2d 504, 523 (S.D.N.Y. 2006) (gap of two and a half months between complaint and discharge was insufficient to establish casual connection); Ponticelli v. Zurich American Insurance Group, 16 F. Supp. 2d 414, 436 (S.D.N.Y. 1998) (finding that a "two-and-a-half month" interval "is hardly the close proximity of time . . . for allowing a plaintiff to establish the 'causal connection' element").
At two months and fifteen days, the protected activity exhibited at Dawson's early November meeting with Kelly is close to but beyond the period from which an inference of causation may be drawn. There is no evidence in the record that suggests there should be any exception in this case or that would allow a reasonable jury to conclude otherwise. Accordingly, Dawson's January 21, 2014 EEO activity is the only protected activity relevant to his termination.
Defendant correctly argues that because "FEMA management's issues with Plaintiff's job performance predated his protected activity," there is no casual connection. (Def. Memo. at 20.) In Breeden, the Supreme Court held that there was no causality when the employer had contemplated "transferring" the employee before the employer learned of a Title VII suit. The Court stated:
The EEOC had issued a right-to-sue letter to respondent three months before [the supervisor] announced she was contemplating the transfer, and the actual transfer occurred one month after [the supervisor] learned of [the employee's] suit. The latter fact is immaterial in light of the fact that [the employer] concededly was contemplating the transfer before it learned of the suit. Employers need not suspend previously planned transfers upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.Id. at 272. This holding is squarely applicable here. Kelly had been considering releasing Dawson in early January due to staff reduction and Dawson's repeated poor performance. (Kelly Decl. ¶ 16.) And as of January 21, 2014, before he learned that Dawson initiated formal EEO proceedings, Kelly had decided that he was going to release Dawson. (Kelly Decl. ¶¶ 18-19.) Because timing is the only basis for Dawson's claim of retaliation, and because complaints about Dawson's performance began well before his protected activity, an inference of retaliation cannot be made. See, e.g., Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 95 (2d Cir. 2001) ("Where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise."); White v. Pacifica Foundation, 973 F. Supp. 2d 363, 385 (S.D.N.Y. 2013) (no causation where supervisor was already contemplating firing plaintiff); Dixon v. International Federation of Accountants, No. 09 Civ. 2839, 2010 WL 1424007, at *6 (S.D.N.Y. April 9, 2010) ("Here, [plaintiff] was subjected to repeated critiques and complaints about her management and performance skills before she ever lodged any complaints about discrimination and, as such, her retaliation claim must be dismissed.").
Nor is there any evidence that would raise a triable issue of fact that any of Dawson's supervisors knew about his EEO activity prior to his termination. There is no evidence that Kelly was aware that Dawson had earlier initiated EEO proceedings when Kelly released Dawson on January 23. Kelly states that he was unaware of the EEO action until after he gave Dawson the termination letter. (Kelly Decl. ¶¶ 19-21.) And Dawson testified that no one saw him file his EEO complaint on January 21. (Dawson Dep. at 155.) In the absence of evidence of a supervisor's prior knowledge of protected activity, there is no basis on which to find causation. See, e.g., Breeden, 532 U.S. at 273 ("First, there is no indication that [the supervisor] even knew about the right-to-sue letter when she proposed transferring respondent."); Seivright v. Montefiore Medical Center, No. 11 Civ. 8934, 2014 WL 896744, at *11 (S.D.N.Y. March 3, 2014) ("[T]here is no evidence that any of the individuals involved in [the employee's] termination knew that she had engaged in any of the listed protected activities."); Davis v. Peake, No. 08 Civ. 3570, 2011 WL 4407551, at *9 (S.D.N.Y. Sept. 20, 2011) (no causal connection where there was no evidence the decision-makers were aware of the protected activity). And while the Second Circuit in Henry v. Wyeth Pharmaceuticals, Inc., 616 F.3d 134, 148 (2d Cir. 2010), held that a plaintiff may refute a supervisor's claimed lack of knowledge with other evidence, there is no such evidence in the record here. Therefore, any retaliation claim related to Dawson's termination must be dismissed.
b. Denial of Overtime
Dawson's claim related to the denial of overtime by Floyd likewise should be dismissed. As with Kelly, there is no evidence in the record that Floyd was aware of any protected activity by Dawson, and there is no evidence suggesting that she was informed of the November 8 EEO meeting or Dawson's assertion to Kelly at the November 8 meeting that Bruce was discriminating against him. (See Floyd Decl. ¶ 13 (stating that not giving Dawson overtime was an oversight).) This claim must be dismissed as well. See, e.g., Breeden, 532 U.S. at 273 ("[T]here is no indication that [the supervisor] even knew about the right-to-sue letter when she proposed transferring respondent.").
5. Defendant's Reasons for Dawson's Release and Pretext
Despite the absence of evidence to support a prima facie case for Dawson, the Court will address steps two and three of the McDonnell Douglas analysis.
As set forth in connection with Dawson's discrimination claim above, Defendant has adequately proffered proper reasons for Dawson's release, including his insubordination and poor work performance. Thus, the presumption of retaliation falls away and "[t]he plaintiff must then come forward with [evidence that the] non-retaliatory reason is a mere pretext for retaliation." Zann Kwan, 737 F.3d at 845. In El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010), the Second Circuit held that temporal proximity alone "is insufficient to satisfy [a plaintiff's] burden to bring forward some evidence of pretext." "However, a plaintiff may rely on evidence comprising her prima facie case, including temporal proximity, together with other evidence such as inconsistent employer explanations, to defeat summary judgment at that stage." Zann Kwan, 737 F.3d at 847. "A plaintiff may show pretext by illuminating such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered reasons that would raise doubt in the factfinder's mind that the employer did not act for those reasons." Clarke v. Pacifica Foundation, No. 07 CV 4605, 2011 WL 4356085, at *9 (E.D.N.Y. Sept. 16, 2011) (quoting Bogdan v. New York City Transit Authority, No. 02 Civ. 9587, 2005 WL 1161812, at *8 (S.D.N.Y. May 17, 2005)).
Dawson has provided no evidence indicating that any action against him was pretextual other than the fact that his release and EEO activity were temporally related. There are no inconstancies or incoherencies in the employer's reasons for releasing Dawson. While Dawson claims that his supervisors' criticisms of him were retaliatory and "fraudulent," those assertions are wholly conclusory and insufficient to sustain his burden on summary judgment. Therefore, even if Dawson were able to present evidence establishing his prima facie case, which he cannot, his claim could not move forward due to lack of any evidence of pretext. See, e.g., El Sayed, 627 F.3d at 933 (plaintiff's failure to provide evidence for pretext at summary judgment stage was fatal to claim); Sealy v. Hertz Corp., 688 F. Supp. 2d 247, 257 (S.D.N.Y. 2009) (Daniels, J.) (plaintiff failed to satisfy his burden where he "present[ed] no evidence disputing defendant's proof that the larger corporate downsizing effort and plaintiff's poor performance reviews were the actual causes of his termination."). D. Hostile Work Environment Claim
To survive a motion for summary judgment, a plaintiff claiming that he was the victim of an unlawful hostile work environment in violation of Title VII must show that "the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Littlejohn v. City of New York, 795 F.3d 297, 320-21 (2d Cir. 2015) (quoting Harris v. Forklift System, Inc., 510 U.S. 17, 21 (1993)); accord Armstrong v. Metropolitan Transportation Authority, No. 07 Civ. 3561, 2015 WL 992737, at *2 (S.D.N.Y. March 3, 2015).
Making a "hostility" determination entails examining the totality of the circumstances, including: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with the victim's performance. Hayut v. State University of New York, 352 F.3d 733, 745 (2d Cir. 2003) (quoting Harris, 510 U.S. at 23). A plaintiff is not required to demonstrate that his race was the only motivating factor; rather he need only show that "a reasonable fact-finder could conclude that race [] was a motivating factor in the harassment." Rivera v. Rochester Genesee Regional Transportation Authority, 743 F.3d 11, 23 (2d Cir. 2014) (quoting Terry, 336 F.3d at 150). "This standard has both objective and subjective components: the conduct complained of must be severe or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must subjectively perceive the work environment to be abusive." Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014).
Dawson's allegations fall far short of setting forth a hostile work environment claim. Dawson alleges that a form was thrown at him, his supervisor mocked his name, he was required to work at the "hot seat," he was not given administrative rights, he was sent critical emails and memoranda, not given overtime hours, asked to file network forms, and asked to help a user when eating a meal. These circumstances do not rise to the level of an abusive work environment, and evidence of them cannot sustain Dawson's opposition to summary judgment. For example, the Second Circuit in Littlejohn found the following allegations insufficient at the motion to dismiss stage:
[Supervisor] Baker made negative statements about [plaintiff] Littlejohn to [Commissioner] Mattingly; Baker was impatient and used harsh tones with Littlejohn; Baker distanced herself from Littlejohn when she was nearby; Baker declined to meet with Littlejohn; Baker required Littlejohn to recreate reasonable accommodation logs; Baker replaced Littlejohn at meetings; Baker wrongfully reprimanded Littlejohn; and Baker increased Littlejohn's reporting schedule. Baker also sarcastically told Littlejohn "you feel like you are being left out," and that Littlejohn did not "understand the [employer's] culture."795 F.3d at 321; see also Fleming v. MaxMara USA, Inc., 371 F. App'x 115, 119 (2d Cir. 2010) (concluding that no hostile work environment existed even though "defendants wrongly excluded [the plaintiff] from meetings, excessively criticized her work, refused to answer work-related questions, arbitrarily imposed duties outside of her responsibilities, threw books, and sent rude emails to her"); Davis-Molinia v. Port Authority of New York & New Jersey, No. 08 Civ. 7584, 2011 WL 4000997, at *11 (S.D.N.Y. Aug. 19, 2011) (Daniels, J.) (finding that "diminished [job] responsibilities," "exclu[sion] from staff meetings," deliberate "avoid[ance]," "yell[ing] and talk[ing] down to," and an increased workload of menial tasks, among other factors, was not enough to show that defendants' conduct was sufficiently severe or pervasive), aff'd, 488 F. App'x 530 (2d Cir. 2012); Sealy, 688 F. Supp. 2d at 258 ("Plaintiff has not alleged that while he was employed at Hertz, any of his supervisors made discriminatory or racist remarks. Plaintiff's speculation about his supervisors' motives cannot substitute for evidence of conduct manifesting racial animus on the part of Hertz's employees. Thus, plaintiff has failed to demonstrate that he endured any racial harassment to support a claim for hostile work environment." (citation omitted)).
The trials and tribulations of which Dawson complains are similar to, and certainly no greater than, those identified in the foregoing cases rejecting hostile work environment claims. Dawson's hostile work environment claim should be dismissed as well.
Conclusion
For the foregoing reasons, I recommend that Defendant's motion for summary judgment be GRANTED in its entirety and that Dawson's claims be dismissed. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable George B. Daniels, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.
Respectfully Submitted,
/s/_________
ROBERT W. LEHRBURGER
UNITED STATES MAGISTRATE JUDGE Dated: August 20, 2018
New York, New York Copies transmitted this date to all counsel of record and to: Patrice Dawson
100 Dreiser Loop #18E
Bronx, NY 10475