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finding that, "[b]ecause a plaintiff's burden in establishing a prima facie case of unlawful termination under the McDonnell Douglas framework is de minimis, . . . the Court assumes without deciding that plaintiff has established a prima facie case of age- and disability-based discriminatory discharge."
Summary of this case from Varno v. Jefferson Cnty. Dep't of PlanningOpinion
10 Civ. 4667 (PKC)
02-06-2012
ARKADY LEVITANT, Plaintiff, v. HILT NY WALDORF LLC, HILTON WORLDWIDE CORP, Defendants.
MEMORANDUM AND ORDER
:
Plaintiff Arkady Levitant brought this action against defendants Waldorf=Astoria Hotel (erroneously labeled "Hilt NY Waldorf LLC") and its corporate parent, Hilton Hotels Corporation (erroneously labeled "Hilton Worldwide Corp"), asserting that defendants, his former employers, discriminated against him on the basis of his disability and age in violation of federal and state law. Discovery in this action is now closed. Defendants move for summary judgment on all claims. For the reasons discussed below, defendants' motion is granted.
BACKGROUND
Plaintiff was born on June 16, 1951. (Def. 56.1 ¶ 2, ECF No. 14; Pl. 56.1 Resp. ¶ 2, ECF No. 26.) In September 1990, he began employment as an elevator operator at the Waldorf=Astoria Hotel ("Waldorf"), the defendant hotel managed by defendant Hilton Hotels Corporation ("Hilton"). (Def. 56.1 ¶¶ 1, 3; Pl. 56.1 Resp. ¶¶ 1, 3.) In 1996, plaintiff transferred to the Purchasing Department; in 2003 he was promoted to Receiving Clerk in the Purchasing Department. (Def. 56.1 ¶ 4; Pl. 56.1 Resp.¶ 4.)
In November 2004, plaintiff sustained a leg injury while at work. (Def. 56.1 ¶ 6; Pl. 56.1 Resp. ¶ 6.) The injury limits plaintiff's walking, standing and sitting. (Pl. 56.1 Resp. ¶ 24.) As a result, plaintiff has received Social Security Disability payments and Worker's Compensation payments for partial permanent disability. (Pl. 56.1 Resp. ¶ 25.)
After the injury, plaintiff was absent from work until August 2005. (Def. 56.1 ¶ 6; Pl. 56.1 Resp. ¶ 6.) On August 23, 2005, the Senior Human Resources Manager of the Waldorf notified plaintiff that he had "exhausted his leave of absence time" and that "if [he was] unable to return to work by Monday, August 29th, 2005, [his] employment with the Waldorf=Astoria [would] be terminated." (Windholz Aff. ¶ 5 and Ex. D, ECF No. 20; see Pl. 56.1 Resp. ¶ 7.)
Plaintiff returned to work. Thereafter, still in 2005, the Director of the Safety Department, Martha Hernandez, told him that he could not use a cane, and she required him to wear heavy work boots that plaintiff believes no other employee in that position had been required to wear. (Def. 56.1 ¶ 8; Pl. 56.1 Resp. ¶ 7; Pl. Dep. 87, Gluck Affirmation Ex. 6, ECF No. 29.) Ms. Hernandez monitored plaintiff's compliance with the boot requirement. (Id.) She also ordered plaintiff's supervisor, Richard Palagano, to enforce the requirement. (Pl. 56.1 Resp. ¶ 9.) Mr. Palagano did not otherwise discriminate against plaintiff in any way. (Def. 56.1 ¶ 9; Pl. 56.1 Resp. ¶ 9.)
Plaintiff alleges that his doctor recommended he use a cane, but he was unable to produce a doctor's note recommending this or any other restriction when such notes were requested at his deposition (see Pl. Dep. 90-97, Gluck Affirmation Ex. 6, ECF No. 29), and the only doctor's note he includes in his present papers clears plaintiff for work with no restrictions (Gluck Affirmation Ex. 5).
Plaintiff now alleges that Ms. Hernandez monitored plaintiff "to determine if he was using a cane." (Pl. 56.1 Resp. ¶ 7.) He does not support this alleged fact with citation to any materials in the record. Plaintiff stated at his deposition that Ms. Hernandez monitored his compliance with the boot requirement. (Pl. Dep. 85.)
In late 2007 or early 2008, plaintiff began reporting to a supervisor named Martin Dwonarski. (Pl. Dep. 78.) In 2008, Mr. Dwonarski "made disparaging comments stating that [plaintiff] should retire and that the job was too hard for him." (Pl. 56.1 Resp. ¶ 8; see Pl. Dep. 78, 100.) Mr. Dwonarski also suggested that plaintiff should "yield [his job] to someone younger than [him]." (Pl. Dep. 70; see Pl. 56.1 Resp. ¶ 8.)
Near the end of plaintiff's employment, Mr. Dwonarski gave plaintiff a "negative" evaluation. (Pl. Dep. 101). This evaluation, from November 18, 2008, detailed plaintiff's strengths and several areas in which plaintiff needed to improve; it concluded, "Over the next 3 months, if [plaintiff's] performance does not improve we should revisit his current role and overall contributions to the organization." (Gluck Affirmation Ex. 5, "Trimester Review"; see Pl. 56.1 Resp. ¶ 16.) On December 1, 2008, the Waldorf terminated plaintiff's employment. (Def. 56.1 ¶ 16; Pl. 56.1 Resp. ¶ 16.)
Defendants have come forward with evidence that plaintiff was terminated as part of a general restructuring, as follows. In the latter part of 2008, Hilton Hotels Corporation directed that all hotels it managed eliminate their purchasing departments and shift to a direct purchase model. (Def. 56.1 ¶ 11; Carlo Aff. ¶ 3, ECF No. 19.) With one exception, all of the employees in the Waldorf's Purchasing Department who were not covered by the collective bargaining agreement then in place were terminated. (Def. 56.1 ¶ 14; Carlo Aff. ¶ 6) Plaintiff's supervisor, Mr. Dwonarski, was also terminated at that time. (Def. 56.1 ¶ 18; Pl. 56.1 Resp. ¶ 18.) The only non-union employee retained was Junior Foote, who is two years younger than plaintiff and does not have a disability. (Def. 56.1 ¶¶ 15, 19; Carlo Aff. ¶ 6, 8, 9.) Mr. Foote assumed portions of plaintiff's duties, in addition to his own. (Def. 56.1 ¶ 20; Carlo Aff. ¶ 10.)
Plaintiff states that he disputes many facts asserted by defendants regarding the restructuring. He bases his disputes on the contention that other employees continued to do Purchasing Department work after he was terminated. (Pl. 56.1 Resp. ¶¶ 11, 13-15, 19-21.) The record provides the following support for that contention. At plaintiff's deposition, plaintiff testified that, after his termination, he saw Mr. Foote "sitting in [plaintiff's] office and doing [plaintiff's] job" while another employee who had "appeared there after [plaintiff] was terminated" performed Mr. Foote's old duties. (Pl. Dep. 118-120.) Plaintiff also testified that another employee, Angel Soto, performed some of his old duties, though he did not state how he knew this or whether he knew if Mr. Soto remained a Waldorf employee. (Pl. Dep. 120-21.)
Plaintiff also testified that a Waldorf housekeeper and an unaffiliated delivery driver told plaintiff that they had seen Junior Foote performing plaintiff's erstwhile duties. (Pl. Dep. 114-18.) Defendants object that these statements are inadmissible hearsay. (Def. Reply Mem. Supp. Summ. J. at 3.)
Plaintiff's deposition testimony comports in part and conflicts in part with testimony given at a Worker's Compensation Board Hearing on September 16, 2009, at which plaintiff attempted to prove his termination was retaliation for his pursuit of worker's compensation benefits. (Windholz Reply Aff. Ex. A., Worker's Comp. Bd. Hr'g Tr., ECF No. 33.) At that time, plaintiff stated that he had, on two occasions, stood outside the Waldorf's loading dock for thirty or forty minutes and seen Mr. Foote on the dock "doing the same thing that [plaintiff] was doing for many years; accepting deliveries, examining boxes." (Worker's Comp. Bd. Hr'g Tr. 9-11.) He did not state that he saw Mr. Foote in his office or that he saw another employee doing Mr. Foote's old job. He stated that Angel Soto had told him that he, Soto, performed plaintiff's duties and had his job title until he was also terminated. (Id. at 6-7.) However, Mr. Soto testified at the same hearing that the Purchasing Department had been eliminated, that he and Mr. Foote had both taken on some of plaintiff's former duties, that plaintiff's job title of "receiving clerk" had been added to his, making him "purchasing[] coordinator slash receiving clerk," and that other workers sometimes helped Mr. Foote perform some of Mr. Foote's non-receiving-related duties. (Id. at 19-29.) Mr. Foote largely confirmed Mr. Soto's testimony. (Id. at 30-38.) At the conclusion of the hearing, the judge found that plaintiff "failed to establish any nexus between his purs[uit] of workers' compensation benefits and his termination. . . . [H]is employment ended due to a reduction in force." (Id. at 55.)
On the day after the unavailing Worker's Compensation Board hearing, September 17, 2009, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC"). (Gluck Affirmation Ex. 4.) In the charge, plaintiff complained principally about his termination. On his intake questionnaire, plaintiff listed two discriminatory events: the "11/18/2008 written threat to terminate employment," and the "12/01/08 termination of employment." (Id. at Questionnaire p. 2.) Likewise, on the first page of the charge, in a box labeled "Date Discrimination Took Place Earliest," plaintiff wrote "11/18/2008" and "Terminated 12/01/2008." (Id. at Charge p. 1.) Plaintiff did not check the square within that box labeled "Continuing Action." (Id.) In his brief description of the alleged disability discrimination, plaintiff described his injury, alleged that he had been denied the reasonable accommodation of walking with a cane, and alleged that he had been "continually threatened with termination." In a second paragraph focusing on age discrimination, plaintiff stated, "On 11/18/08 I received memo from supervisor Mr. Dwonarski threatening with termination. On 12/01/08 my employment was terminated. After that I found out that my position was filled with someone much younger . . . ." (Id. at Charge p. 2.) Plaintiff did not explicitly assert a hostile working environment charge, nor did he allege any other facts suggesting discriminatory behavior, whether ongoing or isolated. (See generally id.)
"[O]n or about March 12, 2010" EEOC dismissed plaintiff's charge and sent plaintiff a right-to-sue letter. (Pl. Mem. Opp. Summ. J. 2, ECF No. 30.) Plaintiff filed his Complaint in this action on June 15, 2010. (ECF No 1.)
DISCUSSION
I. Summary Judgment Standard
Summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56(a), Fed.R.Civ.P. A dispute about a fact is material if it "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
"The burden is on the moving party to demonstrate that no genuine issue respecting any material fact exists." Gallo v. Prudential Residential Svcs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d. Cir. 1994). In response, the nonmovant bears only a "limited burden of production," Powell v Nat'l Bd. of Medical Examiners, 364 F.3d 79, 84 (2d Cir. 2004), and "all ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought," Gallo, 22 F.3d at 1223.
However, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 248. A party opposing summary judgment "may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id. (quoting Nat'l Bank of Ariz. v. Cities Svcs. Co., 391 U.S. 253, 288). Those specific facts must be supported by "citing to particular parts of materials in the record." Rule 56(c)(1)(A), Fed R. Civ. P. "[I]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
Finally, although discrimination claims typically involve questions of intent that are ill-suited to resolution at the summary judgment stage, the Second Circuit has gone "out of [its] way to remind district courts that the 'impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (quoting McLee v. Chrysler Corp., 38 F.3d 67, 68 (2d Cir.1994)). "[T]rial courts should not treat discrimination differently from other ultimate questions of fact." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (internal quotations omitted). Accordingly, "even in the discrimination context," a plaintiff must offer "more than conclusory allegations" to survive a motion for summary judgment. Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir.2010).
II. Plaintiff's Termination Claims
Plaintiff asserts that he was terminated on the basis of his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.§ 621 et seq., and on the basis of his disability in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq. Because NYSHRL disability-based termination claims are governed by the same standards as ADA claims, Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 117 n.1. (2d Cir. 2004), the present discussion of disability-based termination refers only to the ADA but applies equally to plaintiff's NYSHRL claim.
Plaintiff's ADA and ADEA claims are subject to the burden-shifting analysis established for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998) (applying analysis to ADA claim); Gorzynski, 596 F.3d at 106 (ADEA). The McDonnell Douglas analysis has three steps. First, a plaintiff who has no direct evidence of discrimination establishes a prima face case of discrimination through indirect evidence; second, the defendant must rebut the prima facie case with a legitimate, nondiscriminatory reason for the adverse employment action; third, if the defendant offers such a reason, the plaintiff must demonstrate that defendant's stated reason is a pretext. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973). Each step is taken in turn.
The Supreme Court recently ruled that a plaintiff pursing an ADEA claim bears the burden of proving that age was the exclusive motivation behind his termination, not merely one among other motivations. See Gross v. FBL Fin. Svcs., 129 S. Ct. 2343, 2352 (2009). However, the Court did not expressly reject the burden-shifting framework for ADEA cases. See id. at 2349 n.2. In Gorzynski, the Second Circuit indicated that the burden-shifting framework still applies to ADEA cases, though a plaintiff can no longer survive summary judgment by offering evidence sufficient to establish only that age discrimination was a part of the employer's motivation. 596 F. 3d at 106-07.
a. Prima Facie Case
Because a plaintiff's burden in establishing a prima facie case of unlawful termination under the McDonnell Douglas framework is de minimis, Dister v. Continental Grp, Inc., 859 F.2d 1108, 1115 (2d Cir. 1988), the Court assumes without deciding that plaintiff has established a prima facie case of age- and disability-based discriminatory discharge.
b. Legitimate, Nondiscriminatory Reason
Assuming a plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for discharging the employee. McDonnell Douglas, 411 U.S. at 802-03. "The defendant must produce evidence 'which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the [discharge].'" Gallo, 23 F.3d at 1226 (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993) (emphasis removed)). A defendant can meet this burden by offering evidence that the discharge was part of a reduction in force. See id. In this case, defendants offer evidence of a reduction in force. (Def. 56.1 ¶¶ 11, 14-16; Carlo Aff. ¶¶ 3, 6-8.). Accepting this evidence as true, defendants discharged plaintiff for the nondiscriminatory purpose of implementing a reduction in force.
c. Pretext
"If the defendant proffers [a nondiscriminatory reason], the burden is then on the plaintiff to show that the employer's stated reason was merely a pretext for discrimination . . . ." Gallo, 22 F.3d at 1224-25 (ADEA); accord McBride v. BIC Consumer Prods. Mfg. Co., Inc., 583 F.3d 92, 92 (2d. Cir. 2009) (ADA). At this point, "[t]he 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 (quoting Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d. Cir. 1996)).
Putting aside for a moment the legitimacy of defendant's reduction-in-force explanation, plaintiff's proffered evidence is generally insufficient on its own to raise an issue as to discrimination. First, while it is true that discriminatory actions and remarks of a "decisionmaker" may properly suggest discriminatory motivation, Cherktova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996) (citation omitted), there is nothing to suggest that the employees to whom plaintiff attributes discriminatory actions and remarks were decisionmakers in plaintiff's termination.
Ms. Hernandez was the Director of the Safety Department when, in 2005, she ordered plaintiff to wear heavy boots and denied him the use of a cane. (Pl. 56.1 Resp. ¶ 7; Pl. Dep. 87.) On certain occasions in 2006 and 2007, Ms. Hernandez checked on plaintiff's compliance with the boot rule, found him out of compliance, and notified his then-supervisor, Mr. Palagano. (Pl. Dep. 85-87.) Plaintiff does not suggest that Ms. Hernandez ever spoke about plaintiff to anyone other than Mr. Palagano, who left the Waldorf before plaintiff; nor does he suggest that Ms. Hernandez participated in the decision to discharge him at the end of 2008. In fact, plaintiff is unaware whether Ms. Hernandez was still a Waldorf employee in 2008. (Pl. Dep. 86.)
Mr. Dwonarski was plaintiff's supervisor in 2008 when he commented both that plaintiff should "yield [his job] to someone younger" and that the job might be too hard for him, presumably because of his disability. (Pl. Dep. 70, 78; see Pl. 56.1 Resp. ¶ 8.) But Mr. Dwonarski was terminated at the same time as plaintiff. (Def. 56.1 ¶ 18; Pl. 56.1 ¶ 18.) This undisputed fact makes unreasonable an inference that Mr. Dwonarski was a decisionmaker in plaintiff's concurrent termination. Nor may a reasonable inference be drawn that the actual decisionmakers were aware of or influenced by Mr. Dwonarski's "negative" review of plaintiff, which is signed only by plaintiff and Mr. Dwonarski (see Gluck Aff. Ex. E), who, it bears repeating, was terminated along with plaintiff shortly after executing the review.
Apart from the remarks and actions of Ms. Hernandez and Mr. Dwonarski, plaintiff offers only that he was terminated and Junior Foote took on his duties. (Pl. Dep. 114-20.) Mr. Foote's assumption of plaintiff's duties does not raise an issue as to age discrimination, because Mr. Foote is only two years younger than plaintiff (Def. 56.1 ¶ 19; Pl. 56.1 Resp. ¶ 19). See Woodman v. WWOR-TV, Inc., 411 F.3d 69, 79 (2d. Cir. 2005) (inference of age-based discrimination requires "significant" age discrepancy).
Although Mr. Foote is not disabled, his assumption of plaintiff's responsibilities also does not, on its own, raise an issue as to disability discrimination. At this point, the inquiry merges with the legitimacy of the reduction-in-force explanation. That is because in the cases in which the transfer of a terminated employee's responsibilities has raised an issue as to discrimination, that transfer was tantamount to a replacement of the protected employee with a newly hired non-protected employee in a department that remained fully operational or, indeed, expanded. See, e.g., Gallo, 23 F.2d at 1226-27; Montana v. First Fed. Sav. & Loan Ass'n of Rochester, 869 F.2d 100, 105 (2d Cir. 1989). On the other hand, when an existing employee has assumed the terminated employee's responsibilities in a department that was actually reduced, courts have found that the transfer raised no genuine issue as to discrimination. See, e.g., Gioia v. Forbes Media, LLC., 09 Civ. 6114, 2011 WL 4549607, *7 (S.D.N.Y. Sept. 30, 2011); Turner v. NYU Hosps. Ctr., 784 F. Supp. 2d 266, 278 (S.D.N.Y. 2011); Suttell v. Mfrs. Hanover Trust Co, 793 F. Supp 70, 73-74 (S.D.N.Y. 1992) (no prima facie case). Therefore, if there is no genuine issue as to the legitimacy of defendants' reduction in force, that reduction suffices both as a non-pretextual explanation and as a counter to any suggestion of discrimination resulting from the transfer of plaintiff's responsibilities.
Plaintiff presents no evidence to question the legitimacy of defendants' reduction in force. There is no genuine dispute that Hilton directed the Waldorf to eliminate its Purchasing Department or that shortly thereafter plaintiff discharged four of the five non-union employees of the department, including plaintiff. (Def. 56.1 ¶¶ 11-16.) Plaintiff's proffered testimony that he observed Mr. Foote doing his work after his termination and that Mr. Soto performed his work also (Pl. 56.1 Resp. ¶¶ 11-16; Pl. Dep. 114-120; Worker's Comp. Bd. Hr'g Tr. 6-7) is not to the contrary. Nor is it material in this regard whether plaintiff saw Mr. Foote in his old office or on the loading dock, whether a different employee performed some of Mr. Foote's old tasks, or whether Mr. Soto, prior to his own termination, had assumed or absorbed plaintiff's formal title. (Compare Pl. Dep. 114-120 with Worker's Comp. Bd. Hr'g Tr.) The Court accepts that some Purchasing Department functions persist and that Mr. Foote ultimately took on as many of plaintiff's former responsibilities as now remain. However, "the fact that other employees are handling [plaintiff's work] does not indicate that [plaintiff] was 'replaced' but merely demonstrates that, as in most 'reduction-in-force' cases, [defendant] has been successful in reducing the number of employees required to perform certain work." Suttell, 793 F. Supp. at 73. Plaintiff makes no showing, let alone a "sufficient" one, Weinstock, 224 F.3d at 42, that the reduction-in-force explanation is false or, consequently, that discrimination was the true reason for his discharge.
III. Plaintiff's Hostile Work Environment Claim
Plaintiff claims that he was subjected to a hostile work environment on the basis of his disability, in violation of the ADA. The Court assumes arguendo that the Second Circuit recognizes a hostile work environment cause of action under the ADA. See, e.g., Braun v. Securitas Sec. Services USA, Inc., No. 07 Civ. 2198, 2009 WL 150937, *8 (E.D.NY. January 20, 2009). However, plaintiff's claim fails for three reasons. First, plaintiff failed to preserve this claim by timely filing with EEOC; second, even if he had preserved the claim, he fails to state a claim due to non-exhaustion of administrative remedies; third, even if he had timely filed and properly exhausted his claim, plaintiff fails to offer evidence sufficient for a reasonable jury to determine that a hostile work environment existed.
a. Timeliness
In order to preserve a claim of disability discrimination, a plaintiff must observe the statutory requirement of timely filing with EEOC. "In a State that has an entity with the authority to grant or seek relief with respect to the alleged unlawful practice, an employee who initially files a grievance with that agency must file the charge with the EEOC within 300 days of the employment practice; in all other States, the charge must be filed within 180 days." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002) (interpreting 42 U.S.C. § 2000e-5(e)(1); see 42 U.S.C. § 12117 (adopting section 2000e-5(e)(1) procedures for ADA claims). Failure to observe this requirement deprives plaintiff of an actionable claim. Morgan, 536 U.S. at 109.
Plaintiff failed to observe this requirement with respect to his hostile environment claim. Because a hostile work environment is an ongoing wrong, the timing requirements run from the last action that is a part of the course of conduct creating the hostile work environment. Id. at 117-118. The last action that plaintiff alleges is part of the course of conduct is the "negative" review he received on November 18, 2008. (See Pl. Dep. 105-06.) Even assuming this facially neutral review can be classified as a discriminatory act, it is too remote from plaintiff's EEOC filing. Plaintiff filed his EEOC charge on September 17, 2009 (Gluck Aff. Ex. E.), 303 days after the "negative" review, making his filing untimely by three or 123 days.
Because defendants did not raise any issue as to timeliness until their reply briefing on this motion (Def. Reply Mem. Supp. Summ J. 6-7), plaintiff was not, in his papers, required to contest the issue of his having filed with a state agency. However, plaintiff did have the burden of stating the material undisputed facts supporting his hostile environment claim, the latest of which was, as noted above, outside the 300-day limit. --------
b. Exhaustion
In addition to being untimely, plaintiff's EEOC charge was insufficient to properly exhaust a hostile environment claim. In order to properly exhaust a hostile environment claim, a plaintiff must actually allege a hostile environment in his EEOC charge. See Mathirampuzha v. Potter, 548 F.3d 70, 74-75 (2d Cir. 2008). The purpose of this requirement "is to give the administrative agency the opportunity to investigate, mediate, and take remedial action." Stewart v. INS, 782 F.2d 193, 198 (2d. Cir. 1985). That purpose "would be defeated if a complainant could litigate a claim not previously presented to and investigated by the EEOC." Miller v. ITT, 755 F.2d 20, 26 (2d Cir. 1985).
A claim not actually exhausted may be deemed exhausted if it is "reasonably related" to the charge brought before EEOC. Mathirampuzha, 548 F.3d at 76 (citing Butts v. City of New York Dep't of Hous. Preservation and Dev., 990 F.2d 1397, 1402 (2d Cir. 1993)). A claim is reasonably related to the EEOC charge if it would fall within the scope of the administrative investigation of the charge. See id. The purpose of this "loose pleading" rule is to make allowance for an unrepresented employee filling out an EEOC charge with the primary purpose of alerting EEOC to the discrimination that the employee claims she is suffering. Butts, 990 F.2d at 1402. Accordingly, courts "focus on the factual allegations made in the EEOC charge" to determine whether the charge "gave th[e] agency adequate notice to investigate discrimination on the [newly alleged basis]." Mathirampuzha, 548 F.3d at 76-77 (internal quotations and citations omitted). Ultimately "[j]udicial claims which serve to amplify, clarify, or more clearly focus earlier [EEOC] complaints are appropriate," but "[a]llegations of new acts of discrimination, offered as the essential basis for the requested judicial review are not appropriate." McGuire v. U.S. Postal Service, 749 F.Supp. 1275, 1287 (S.D.N.Y. 1990) (quoting Ray v. Freeman, 626 F.2d 429, 443 (5th Cir. 1980)).
When examining reasonable relation in the context of newly alleged hostile environment claims, the Second Circuit has emphasized that "[h]ostile environment claims are different in kind from discrete acts." Mathirampuzha, 548 F.3d at 76-77 (quoting Nat'l R.R. Passenger Corp v. Morgan, 536 U.S. 101, 115 (2002)). Instead, a hostile work environment is created "[w]hen 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." Harris v. Forklift Sys., 510 U.S. 17, 21 (1993) (internal citations and quotations omitted). And, "[a]s a general rule, incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive." Terry v. Ashcroft, 336 F.3d 128, 148 (2d. Cir. 2003) (internal quotations and citations omitted).
In this case, plaintiff did not explicitly assert a hostile environment charge before EEOC, nor is a hostile environment claim reasonably related to the charges he did bring. As noted, plaintiff's EEOC charge focuses almost exclusively on termination. (See Gluck Affirmation. Ex. 4.) The only statement therein that could be construed as relating to a hostile environment is that plaintiff was "continually threatened with termination." (Id. at Charge p. 2.) Although this relates to continuing conduct, it lacks the "concerted," Terry, 336 F.3d at 148, or "intimidat[ing], ridcul[ing], and insult[ing]," Oncale, 523 U.S. at 78, quality that ordinarily signals a hostile working environment. In the context of factual allegations otherwise speaking solely to discriminatory termination, it is not reasonable to infer that EEOC would have divined a hostile environment charge from this scant articulation. Moreover, the alleged continual threats of termination form no part of the hostile work environment claim that plaintiff now alleges; instead he relies on the disparaging comments of Mr. Dwonarski and the allegedly unfair requirements imposed by Ms. Hernandez. (See Compl. ¶¶ 16-18, 27; Pl. 56.1 Resp. ¶ 8; Pl. Mem. Opp. Summ J. 1, ECF No. 30.) These new bases do no not "amplify, clarify, or more clearly focus" the EEOC charges; rather they are "[a]llegations of new acts of discrimination, offered as the essential basis for the requested judicial review." McGuire, 749 F. Supp. at 1287. Because, "[t]he 'reasonable relatedness' test is not satisfied by the improbable possibility that the EEOC could have stumbled into a new universe of allegations that the plaintiff alleges for the first time in his complaint," Chinn v. City Univ. Sch. of Law at Queens Coll., 963 F. Supp. 218, 223-24 (E.D.N.Y. 1997), plaintiff has not exhausted administrative remedies and fails to state a hostile environment claim.
c. Sufficiency
Even if plaintiff had timely filed and properly exhausted his hostile environment claim, the evidence he now offers to support that claim is insufficient to survive summary judgment. As with his disability-based termination claim, plaintiff also grounds his disability-based hostile environment claim in NYSHRL. Because NYSHRL hostile environment claims take their substance from federal law, see Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305 n.3, 310-311 (2004), the discussion below also applies to, and disposes of, plaintiff's NYSHRL hostile environment claim.
In order to prevail on a hostile working environment claim, a plaintiff must establish, among other things, that his working environment was "objectively hostile," Harris, 510 U.S. at 21. As noted above, a working environment is objectively hostile when a reasonable person would find the workplace "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe to alter the conditions of the victim's employment." Harris, 510 U.S. at 21. And, "conduct must be extreme to amount to a change in the terms and conditions of employment." Farragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). To meet this standard, a plaintiff "must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently 'continuous and concerted.'" Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir.1997)). "Episodic" non-extreme events do not meet this standard. Perry, 115 F.3d at 149. For example, in Alfano v. Costello, the Second Circuit affirmed that five sexually discriminatory incidents over the course of four years were "well below the threshold" necessary to establish a hostile environment claim. 294 F.3d 365, 379 (2d Cir. 2002).
In this case, the events plaintiff alleges are also well below the threshold necessary to establish a hostile environment claim. Assuming that all of the events to which plaintiff points were motivated by disability-based animus, the discriminatory incidents were as follows: (1) in 2005, Ms. Hernandez refused to allow plaintiff to use a cane and required him to wear heavy boots (Pl. 56.1 Resp. ¶ 8; Pl. Dep. 85-87); (2) in 2006 and 2007, Ms. Hernandez checked on plaintiff's compliance with the boot requirement (Pl. 56.1 Resp. ¶ 8; Pl. Dep. 87); (3) in 2008, Mr. Dwonarski "made disparaging comments stating that he should retire and that the job was too hard for him" (Pl. 56.1 Resp. ¶ 8; see Pl. Dep. 78, 100); (4) in late 2008, Mr. Dwonarski gave plaintiff a "negative" evaluation (Gluck Aff. Ex. E). These events are neither "extraordinarily severe" nor "continuous and concerted." Cruz, 202 F.3d at 560. In fact, they are more sporadic and less severe than the events found wanting in Alfano. See 294 F.3d at 379-80. On the facts of record, no reasonable factfinder could conclude that plaintiff was subject to a hostile work environment. In sum, then, plaintiff's hostile environment claim is untimely, non-exhausted, and insufficient to survive summary judgment.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment (ECF No. 12) is GRANTED. The Clerk is directed to terminate the motion and enter judgment for the defendants.
SO ORDERED.
/s/_________
P. Kevin Castel
United States District Judge Dated: New York, New York
February 6, 2012