Opinion
99 Civ. 4308 (GEL)
May 2, 2002
Albert Myrick, pro se.
Michael D. Hess, Corporation Counsel of the City of New York, New York, NY, Michael DeLarco, Naomi Sheiner, Assistant Corporation Counsel, Of Counsel, for Defendant New York City Employees Retirement System.
OPINION AND ORDER
Plaintiff Albert Myrick brought this action against his former employer, the New York City Employees Retirement System ("NYCERS") pursuant to the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e,et seq. ("Title VII"), charging discrimination and retaliatory discharge based on race. In December 1999, defendant moved to dismiss the action, or alternatively, for summary judgment, before the Honorable William H. Pauley, to whom the case was then assigned. In August 2000, Judge Pauley dismissed plaintiffs Title VII wage discrimination claim, but denied defendant's motion in all other respects (Def. Ex. X at 10), declining to "evaluate [plaintiffs claims] in a summary judgment context," because Myrick was appearing pro se and discovery had not yet been conducted (id. at 5).
Discovery was completed in July 2001, and defendant now renews its notion for summary judgment on plaintiffs remaining claim of retaliation. For the reasons stated below, the motion is granted, and judgment will he entered for the defendant.
Although Judge Pauley gave plaintiff leave to amend his complaint (see id. at 10), Myrick never did so, leaving the retaliation claim as the only live issue in this action.
BACKGROUND
Myrick worked for NYCERS from 1979 until he was tired on April 28, 1995. (Compl. ¶ 1.) Myrick filed this action pro se on April 22, 1999, claiming that defendant's reasons for firing him were a "pretext for [the] underlying motivation to terminate [him] for charging supervisors and superiors with discriminatory behavior in violation of Title VII of the Civil Rights Act of 1964." (Compl. ¶ 25.)
The events described in the record date back to 1985, but plaintiffs and defendant's interpretations of these facts differ greatly. While Myrick claims that he suffered years of harassment, discrimination, and eventually, retaliatory termination for complaining about race discrimination within the agency, NYCERS argues that Myrick was an incompetent employee whose insubordinate behavior and repeated failures to complete work led to his discharge. A long series of poor performance evaluations and an equally lengthy string of grievance complaints fill the last ten years of Myrick's employment. (Def. 56.1 Statement ¶¶ 2-27; Compl. ¶¶ 8-22.) As noted by Judge Pauley. "the paper trail is difficult to follow." (Def. Ex. X at 2.)
Despite this jumble of complaints, allegations, and miscommunication between employer and employee, the circumstances surrounding Myrick's actual termination are established with much greater clarity. That clarity results from a disciplinary process mandated by Section 75 of the New York Civil Service Law, which guaranteed Myrick procedural protections and required objective findings of Myrick's incompetence and misconduct prior to his discharge.
While Myrick complains of retaliatory motivation on the part of his supervisors, the decision to fire him was not made by them. Rather, the decision was based on findings of fact made by an administrative law judge ("ALJ") following an evidentiary hearing. Under Section 75, which protects certain civil service employees threatened with "removal and other disciplinary action," covered employees (such as Myrick) "shall not be removed or otherwise subjected to any disciplinary penalty provided in this section except for incompetency or misconduct shown after a hearing upon stated charges pursuant to this section." New York Civil Service Law § 75(1). The employee has a right to representation during the process and to written notice of the charges against him, as well as to a hearing where the person alleging incompetence or misconduct bears the burden of proof. Id. § 75(2). This section has been called the "cornerstone of protection for civil service workers." William E. Garnett, Incompetence in Civil Service Cases, 61 N.Y. St. B. J. 30, 30 (Apr. 1989). Guarding against dismissal "on the whim or caprice of [an] employer," allegations of misconduct or incompetence "must not be a 'mere subterfuge to get rid of the person.'" Id. at 32 (quoting Van Tine v. Purdy, 221 N.Y. 396, 399 (1917)). Myrick received the full benefit of these procedural protections.
I. Events Leading to the Disciplinary Hearing
Prior to 1988, Myrick apparently performed adequately. His evaluations from 1981 through March 1987 rated him as "good" and "superior." (Def. 56.1 Statement ¶ 5; Def. Ex. F; Def. Ex. B at 4.) His employment, however, was not trouble free. In September 1985, NYCERS suspended Myrick for four weeks on account of excessive lateness pursuant to a Report and Recommendation following a Section 75 hearing. (Def. Ex. C at 8-11 Def. Ex. D.) Myrick's excessive lateness was also noted in 1981, 1983, and 1984. (Def. Ex. B at 62.)
Myrick's first complaint of discrimination described in the record was made in 1988. On April 21, 1988, Myrick complained to NYCERS's equal employment officer about a system of wage discrimination against African-American employees, who he alleged were denied promotions on the basis of subjective performance evaluations. (Def. Ex. G at 4, ¶ 3.) He claimed that discrimination within the agency resulted in an "'average annual wage of the black employee . . . less than that of the white employee,'" and argued that "'[p]erformance evaluations, which are used as a means of determining promotions and increases, are subjective in [their] rating methods and allow for unequal and unfair evaluation of blacks for available positions.'" (Id. (quoting Myrick's complaint dated April 21, 1988).) During the seven years that followed between this complaint and Myrick's termination, Myrick challenged his own poor performance evaluations on the grounds that they were tainted by the same bias against African-American employees that resulted in the wage discrimination alleged in his grievance.
One week after this first complaint, on April 28, 1988, Myrick received his first performance evaluation from his new direct supervisor, Robert Duggan. (Def. 56.1 Statement ¶ 6; Def. Ex. G at 5, ¶ 4.) Duggan remained Myrick's supervisor. responsible for performance reviews, through his final evaluation in June 1994 and his firing in 1995. (Def. 56.1 Statement ¶ 20.) Duggan gave Myrick an overall "good" rating, but Myrick appealed the evaluation to the Employee Service Review Board ("Review Board"), accusing Duggan of racial bias. (Def. Ex. H.) Myrick's appeal to the Review Board was denied, as was a subsequent appeal to the NYCERS's Executive Director. (Def. Ex. G at 8, ¶¶ 11-12.) However, accepting Myrick's suggest on for more discussions "to warn employees of perceived deficiencies in time for corrective action" (Id. ¶ 7. Pl. Ex. E at 143), the Review Board recommended that Myrick meet more frequently with his supervisor to discuss performance. As a result, Myrick received interim as well as annual evaluations from that point forward. (Def. Ex. G at 8, ¶ 11.)
Ironically, these interim evaluations became an additional point of contention. According to Duggan, these interim evaluations resulted from Myrick's suggestion that management have more "discussions with employees so that problems could be solved, performance corrected and ratings improved." (Duggan Dep., Pl. Ex. E, at 143.) NYCERS equated "discussions" with evaluations. (Id.) Denying that the two are interchangeable. Myrick asserts that the interim evaluations violated policy (Myrick Aff. ¶ 24), discriminated against him (id. ¶¶ 23-26), and were conducted in retaliation for past grievances (id. ¶ 27).
On June 3, 1988, Myrick filed a charge with the Equal Employment Opportunity Commission ("EEOC") and the New York State Division of Human Rights ("SDHR"), alleging wage discrimination and claiming that his April 28, 1988, evaluation was based on "vague and imprecise" "personal impressions." (Def. Ex. J.) The next performance review, an interim review, followed on the heels of this filing. In this first interim evaluation dated June 15, 1988, Myrick received an "unsatisfactory" rating, which NYCERS claimed was justified by "performance [that] shows bad work habits, poor logic organization, little thought, inadequate product testing, [and] lack of overall interest." (Def. Ex. K.) A second SDHR charge followed on August 17, 1988, alleging that NYCERS issued the poor June 15 evaluation in retaliation for the June 3 charge. (Def. Ex. L.) These charges were later amended to include a claim that plaintiffs eventual firing in April 28, 1995, was also in retaliation for filings with the SDHR. (Def. Mem. at 6.)
Between 1988 and 1994, Myrick raised additional internal complaints in October 1989 (Compl. ¶ 12), May 1992 (id. ¶ 14), June 1993 (id. ¶ 18), and March 1994 (id. ¶ 20.) During that same period, he complained to the EEOC in June 1988 (id. ¶ 10), to the SDHR in June 1988 and August 1988 (id. ¶ 11; Def. Ex. G. at 1), and to the New York City Commission on Human Rights ("CCHR") in February 1993 (Def. Ex. Q) and again in June 1994 (Def. Ex. T).
Myrick's complaint logs this complaint as occurring on September 28, 1992. (Compl. ¶ 16.) According to a copy of the charge. Myrick signed the grievance in September, but it was not filed until February 1993. (Def. Ex. Q.)
Again, Myrick cites the date he signed the complaint. February 13, 1994 (Compl. ¶ 19), but the charge was apparently not filed until June 30, 1994. (Def. Ex. T.)
While Myrick was submitting complaints, his employer completed a series of performance evaluations. From 1988 until 1994, Myrick received eight reviews, three "good" (April 1988, Def. Ex. H; April 1989, Def. Ex. M; April 1992, Def Ex. P), one "conditional" (June 1993, Def. Ex. R), and four "unsatisfactory" (June 1988, Def. Ex. K; April 1990, Def. Ex. N; April 1991, Def. Ex. O; June 1994, Def. Ex. 5). The "unsatisfactory" reviews noted, for example. that Myrick's "lack of achievement is directly related to poor or non-existent work habits. His uncooperative approach to assigned tasks and insubordination establish a poor foundation for achieving any useful results while [he] is spending his time at this agency." (Def. Exs. N, O.)
In January 1994, after six years of almost constant tension between employer and employee, Duggan, Myrick's direct supervisor, spoke with John Murphy. the head of NYCERS, complaining that the situation with Myrick had become "intolerable." (Duggan Dep., Pl. Ex. D at 498.) This conversation led defendant to conclude that NYCERS "should start preparing what we have to prepare to get this situation permanently correct; some sort of disciplinary hearing." (Id.) On June 30, 1994, Myrick filed a charge with the CCHR that he had apparently prepared and signed on February 3, 1994. (Def. Ex. T.) Approximately a month after this grievance was docketed, NYCERS served Myrick with disciplinary charges, which resulted in the recommendation for Myrick's firing.
II. The Section 75 Hearing
NYCERS initiated the disciplinary process on July 22, 1994, by issuing a statement of charges against Myrick containing twenty specifications of incompetence or misconduct, including failure to fulfill the tasks of his job (Def. Ex. U, Statement dated July 22, 1994, ¶¶ 1-7), "unsatisfactory" performance (id. ¶ 8), disruption to "the discipline, efficiency and morale" of the agency (id. ¶¶ 9-10), insubordination (id. ¶¶ 11-18), and absences without leave ("AWOL") (id. ¶ 20). NYCERS amended the charges in September and October 1994, adding more allegations of a similar nature, resulting in a total of thirty-six specifications of misconduct. (Id., Statement dated October 17, 1994, at 2.)
In addition to describing the specifications in detail, the six-page statement of charges also summarized Myrick's rights, responsibilities, and options during the grievance process. (Id., Statement dated July 22, 1994, at 5-6.) If Myrick objected to the outcome of an informal conference to resolve the charges, he could either proceed to a Section 75 hearing, or opt instead for resolution through grievance proceedings under the terms of the collective bargaining agreement between his union and the City of New York. (Id.) Myrick decided not to waive the protections provided by Section 75, and requested and participated fully in a Section 75 hearing before an ALJ.
The Section 75 hearing took place on November 17-18, and December 7-8, 1994. (Def. Ex. B at 2.) Myrick was represented by an attorney, testified on his own behalf, and called a co-worker to testify for him. (Id. at 6.) NYCERS called four witnesses, including Myrick's primary supervisors, and presented documents, records, and memoranda in support of the charges. (Id.) On April 11, 1995, the ALJ issued a sixty-six-page Report and Recommendation, chronicling the troubled relationship between employee and employer, and concluding that NYCERS had carried its burden and demonstrated Myrick's guilt on twenty-nine of the thirty-six specifications of incompetence and insubordination. (Id. at 61.) Despite Myrick's long-term service, the ALJ concluded that, as with other employees "who have demonstrated fundamental incompetence, engaged in repeated insubordination, and shown little inclination to change," termination would be "the only appropriate penalty for respondent." (Id. at 65-66). NYCERS adopted the ALJ's Report and Recommendation in its entirety, and fired Myrick on April 28, 1995. (Def. Ex. V.)
III. Proceedings on Myrick's Discrimination Complaint
The SDHR also conducted hearings on Myrick's case, beginning in 1994 around the same time as the Section 75 hearing, but stretching into 1996. (Def. Ex. G at 1.) On May 7, 1998, the SDHR issued a Notice of Order finding that Myrick "failed to meet his burden with respect to all of his claims." (Id. at 19.) Specifically, the SDHR commissioner concluded that the 1988 retaliation charge was unfounded as Myrick "had failed to successfully complete two major assignment[s] for . . . NYCERS around this same time." (Id. at 14.) As for the retaliation claim relating to the 1994 disciplinary charges. the SDHR gave preclusive effect to the determination of the ALJ in the disciplinary proceeding, concluding that "the record is clear that . . . NYCERS disciplined, and ultimately terminated, [Myrick] for legitimate. non-discriminatory reasons and not in retaliation for his engaging in any protected activity under the Human Rights Law." (Id. at 19; see also Def. Ex. B.) The EEOC issued right to sue letters in February 1999 and August 1999 (Def. Ex. W), and this action followed.
These hearings were conducted on October 25, 1994. October 23-24, 1995, and February 21-22, 1996. (Id. at 1-2.)
IV. The Instant Motion
Since Judge Pauley's order denying defendant's earlier motion for summary judgment, the parties have conducted and concluded discovery. NYCERS took Myrick's deposition (Def. Ex. E) and responded to plaintiffs requests for admissions (Pl. Ex. C). In addition, both parties had access to transcripts of testimony given at the Section 75 and SDHR hearings. (See, e.g., Pl. Exs. D, E, F.) Defendant moves again for summary judgment, claiming that Myrick fails to make a prima facie case of retaliation, that NYCERS has articulated legitimate, non-retaliatory reasons for terminating plaintiff, and that Myrick has not shown that these reasons were mere pretext for retaliation.
Because the Court agrees that NYCERS has presented legitimate reasons for Myrick's termination, and that Myrick has not presented sufficient evidence to permit a reasonable factfinder to conclude that these reasons were pretextual, the motion for summary judgment will be granted.
DISCUSSION
I. Standard for Summary Judgment
The standard for summary judgment is frequently recited and well established. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). To defeat a motion for summary judgment. "an adverse part 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." Fed.R.Civ.P. 56(e). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citingDeLuca v. Atlantic Refining Co., 176 F.2d 421, 423 (2d Cir. 1949), cert. denied, 338 U.S. 943 (1950)). "[I]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted). The non-moving party cannot defeat summary judgment by offering merely speculative arguments in opposition. See Dister v. Continental Group, Inc., 859 F.2d 1108, 1116-17 (2d Cir. 1988). Accordingly, to defeat summary judgment, the opposing party must set forth "'concrete particulars'" showing the need for a trial. R.G. Group, Inc. v. Horn Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)).
In Title VII retaliation cases, the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies. See, e.g., Quinn v. Green Tree Credit Corp., 159 F.3d 759, 764 (2d Cir. 1998); Gallagher v. Delaney, 139 F.3d 338, 349 (2d Cir. 1998). Under this scheme, plaintiff creates a presumption of retaliation by establishing a prima facie case; the employer can rebut that presumption by offering legitimate. non-retaliatory reasons for the contested actions; if it succeeds, the burden reverts to the plaintiff to demonstrate that those reasons are merely pretextual. See e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-507 (1993); James v. New York Racing Assoc., 233 F.3d 149, 154 (2d Cir. 2009); Fisher v. Vassar College, 114 F.3d 1332, 1333-35 (2d Cir. 1997) (en banc).
An employer acting for legitimate, non-retaliatory reasons will be entitled to summary judgment, "unless the plaintiff can point to evidence that reasonably supports a finding of prohibited" retaliation. James, 233 F.3d at 154 (citations omitted); see also Gallagher, 139 F.3d at 349-50. Evidence casting doubt on the employer's proffered justification "may — or may not — be sufficient" to provide this support.Fisher, 114 F.3d at 1333. Thus, when the employer has proffered an explanation and the plaintiff has attempted to refute it, the Court's responsibility is to "examin[e] the entire record to determine whether the plaintiff could satisfy his 'ultimate burden of persuading the trier of fact that the defendant intentionally [retaliated] against the plaintiff."' Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (quotingReeves, 530 U.S. at 143). Ambiguities are resolved in favor of the party opposing summary judgment. Matsushita Elec., 475 U.S. at 587.
II. Myrick's Retaliatory Discharge Claim
Unlike his discrimination claim, Myrick's claim of retaliation survived the defendant's pre-discovery motion to dismiss. This result is not unique. See Quinn, 139 F.3d at 762 (observing that "more frequently than might be imagined . . . an employee whose primary claim of discrimination cannot survive pre-trial dispositive motions is able to take to trial the secondary claim that he or she was fired . . . in retaliation for asserting the primary claim). On this motion, the Court must determine whether a sufficient basis exists in the record to allow reasonable jurors to find for plaintiff. Since the record does not support such a finding, NYCERS's motion for summary judgment will be granted.
A. Prima Facie Case
In support of its purpose to eliminate and remedy discrimination. Title VII protects employees seeking redress against their employers from retaliatory acts that adversely affect their employment. Pursuant to 42 U.S.C. § 2000e-3(a), "It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." To establish a prima facie case of retaliation, a plaintiff must show "[1] participation in a protected activity known to defendant; [2] an employment action disadvantaging the plaintiff; and [3] a causal connection between the protected activity and the adverse employment action." Quinn, 159 F.3d at 769 (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995)).
Myrick more than satisfies the first prong of a prima facie case. He filed numerous complaints both within NYCERS and with the EEOC, SDHR, and CCHR. (Compl. ¶¶ 10-20.) Such actions are protected activities. See Gallagher, 139 F.3d at 349; Tomka, 66 F.3d at 1308. Moreover, there is no doubt that NYCERS was aware of Myrick's complaints. Although NYCERS claims that it did not know about Myrick's CCHR complaint filed in June 1994 until service of that complaint on August 25, 1994 (Def. Mem. at 11), NYCERS did have knowledge of an internal grievance filed by Myrick on March 18, 1994, a fact clearly acknowledged by NYCERS's Deputy Executive Director in a letter to Myrick's union representative. (Pl. Ex. I (acknowledging Myrick's internal grievance and stating NYCERS's intention to take disciplinary action against Myrick).) Several other complaints had been made previously to NYCERS itself. As long as Myrick had a "'good faith, reasonable belief that the underlying challenged actions of the employer violated the law,'" he fulfills the first prong.Quinn, 159 F.3d at 769 (citations and emphasis omitted.) The record, which includes a long history of tension between Myrick and NYCERS, supports such a reasonable belief. (See, e.g., Def. 56.1 Statement ¶¶ 2-27.) The second prong is also satisfied, as termination "clearly amount[s] to an adverse employment action." Quinn, 159 F.3d at 769.
Myrick's retaliation claim is only vaguely articulated in the complaint, noting merely that "Respondent[']s justification for Mr. Myrick's discharge of poor work performance was pretext for underlying motivation to terminate Mr. Myrick for charging supervisors and superiors with discriminatory behavior in violation of Title VII of the Civil Rights Act of 1964." (Compl. ¶ 25.) Since Myrick made many charges against his "supervisors and superiors" over a seven-year period complaining to NYCERS's equal employment opportunity officers, the EEOC, SDHR, and CCHR, it is unclear whether the plaintiff intended to focus the Court's attention on any particular complaint as the stimulus for retaliation. For purposes of fulfilling the third prong of the prima facie test, however, the charges made in 1994 provide the strongest basis for Myrick's retaliation claim. Judge Pauley also focused on the 1994 charges. (Def. Ex. X at 10.)
Temporal proximity between the complaints and the adverse employment action may support an inference of the causal connection required to establish a prima facie case. See, e.g., Taylor v. Polygram Records, 94 Civ. 7689, 1999 WL 124456, at 20 (S.D.N.Y. March 8, 1999). As noted above, at the motion to dismiss stage, Myrick's retaliation claim survived because Judge Pauley concluded that the temporal proximity of the protected activity and disciplinary charges in 1994 permitted an inference of the causal connection necessary to satisfy the third prong of a prima facie case. (Def Ex. X at 10.) See, e.g., Taylor, 1999 WL 124456. at 20. Only one month after Myrick filed his 1994 CCHR charge. NYCERS filed disciplinary charges against plaintiff, which led to the Section 75 hearing that resulted in a recommendation for Myrick's discharge. (Def. 56.1 Statement ¶¶ 24-27; Def. Ex. U.)
These dates support an inference that the protected activity is causally connected to the adverse employment action. However, on a motion for summary judgment and on a record developed through full discovery, "[t]iming alone will not [always] provide sufficient evidence of a 'nexus . . . ." McKie v. New York Univ., 94 Civ. 8610, 2000 WL 1521200, at 4 (S.D.N Y Oct. 13, 2000) (citations omitted.) NYCERS argues that the sequence of events in 1994 does not suggest a retaliatory link, but rather, suggests, if anything, a reverse correlation. (Def. Mem. at 11-13). Claiming that "gradual adverse actions against plaintiff" occurred "well before" Myrick's protected activity in 1994, defendant asks this court to disregard the temporal proximity. (Id. at 12.) Indeed, uncontradicted testimony from Duggan makes clear that the decision to bring charges against Myrick was made in January 1994, before his 1994 CCHR complaint was even prepared. (Pl. Ex. D at 495-98.)
NYCERS relies on Taylor, where the plaintiff "was already demonstrably at risk before she . . . filed the charge," waiting eight months from her first negative review to take action. Taylor, 1999 WL 12445, at 21. Unlike that plaintiff, however, Myrick has been filing charges consistently since 1988. Although the actions against him had grown progressively more severe in 1994, with conversations among his supervisors in January (Myrick Aff. ¶ 18) and a meeting with Myrick about severance in April (Def. 56.1 Statement ¶ 19; Def. Ex. S), the record does not clearly support an inference that Myrick only acted in 1994 because he job was in jeopardy. Moreover, while Myrick's employment record was not spotless before 1988, he apparently received all of his poor performance evaluations after filing his first complaint in that year. Thus, for the purposes of summary judgment, the Court finds that the intertwined timing of Myrick's complaints of discrimination and the poor performance evaluations leading to his firing is sufficient to establish plaintiffs prima facie case of retaliation.
B. Legitimate, Non-Retaliatory Reasons
With a prima facie case of retaliation in place, the burden of production shifts to NYCERS, who must demonstrate that legitimate, non-retaliatory reasons grounded Myrick's termination. Raniola v. Bratton, 243 F.3d 610, 625 (2d Cir. 2001) (citing Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990)). NYCERS claims that Myrick was terminated for incompetence and insubordination. (Def. Mem. at 14-15). The record contains more than adequate evidence to support these reasons. Prior administrative findings, such as the disciplinary finding against Myrick, "may supply a non-discriminatory reason for an employment discharge under the familiar McDonnell Douglas burden-shifting framework." Raniola, 243 F.3d at 624. In addition to the ALJ's finding of Myrick's guilt on twenty-nine charges of incompetence and misconduct (Def. Exs. A, U, V), the record includes four "unsatisfactory" reviews (Def. Exs. K, N, O, S) and one "conditional" review (Def. Ex. R), and numerous allegations of insubordination and lateness dating back as far as 1985 (Def. Exs. N, S, D).
Between 1993 and 1994, Myrick had one major project, "MAN 001," requiring him "to develop a method to reenter into the automated system . . . manual cases that had fallen out over the years." (Def. Ex. B at 8-9). NYCERS expected Myrick "to modify the existing system to reautomate these manual cases, and to educate users on how to use his modifications." (Id. at 9.) The ALJ found that Myrick's performance on the project was is an "unmitigated failure." (Id.) While one of Myrick's supervisors expected 75% of the annual, manual caseload to be reautomated — approximately 800 to 900 cases — Myrick made only one modification to the system, resulting in the reautomation of just two cases. (Id. at 10; id at 26 (noting Myrick's acknowledgment of reautomating only two cases).)
This project had been on the "back burner" due to limited resources, and was given to Myrick in light of his recent poor performance. "because it was neither critical nor urgent," but also because he was "the most knowledgeable" employee in terms of the computer system. Despite the lack of urgency, this project targeted a specific problem at the agency and NYCERS expected progress and solutions. (Id.)
In addition, during the Section 75 proceeding, NYCERS documented and Myrick conceded the following failures: use of COBAL programming language despite a prohibition against it (id. at 11-12, 26); failure to provide weekly status reports (id. at 17, 26); and failure to produce a project working document for MAN 001 described by NYCERS as "the basis for any project," which "serves as a full set of documentation of the work that has been done from the inception" (id. at 16, 26).
NYCERS carried its burden on twenty-nine of the thirty-six specifications of wrongdoing. The ALJ found that the testimony offered was "detailed and credible," noted that Myrick was "evaluated on the basis of written tasks and standards which were noticed to him a year in advance . . . and the same for all other computer associates and had been the same for him for several years." and concluded that the testimony concerning Myrick's poor work performance was "extensive and corroborated by documentation." (Id. at 24-25.) On the other hand, the ALJ described Myrick's testimony as "vague and at times almost paranoid" (id. at 25) and, with regard to why he failed to keep a project working document for his only major project, "disingenuous" (id. at 26).
For the most part, these findings of incompetence and dereliction are well-documented, involve specific errors or failures to perform, and are serious in nature. They fully establish legitimate, non-retaliatory reasons for dismissing Myrick.
C. Pretext
Since NYCERS has succeeded in articulating legitimate, non-retaliatory reasons for discharging Myrick, the Court must determine whether the record also contains evidence supporting the plaintiffs claim that these reasons are mere "pretext for [the] underlying motivation to terminate [him] for charging supervisors and superiors with discriminatory behavior." (Compl. ¶ 25.) Evidence of pretext "'may be demonstrated either by the presentation of additional evidence showing that 'the employer's proffered explanation is unworthy of credence,' or by reliance on the evidence comprising the prima facie case, without more.'" LaFond v. General Physics Servs. Corp., 50 F.3d 165, 174 (2d Cir. 1995) (citations omitted). "All that is necessary to permit the case to proceed is evidence sufficient to raise an issue of fact as to whether the . . . proffered reason for . . . treatment was a pretext for retaliation."Gallagher, 139 F.3d at 350 (citing Tomka v. Seiler Corp., 66 F.2d 1295, 1309 (2d Cir. 1995)). Summary judgment may be appropriate even where the decision to discharge an employer may have been motivated, "at least in part, by an illegitimate reason," if the Court can determine whether the employer "would have made the same decision even absent the discriminatory motive." Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033, 1040 (2d Cir. 1993).
Although Myrick has established a prima facie case of retaliation, the evidence in support of his case is not strong enough to rebut the evidence offered by NYCERS demonstrating that Myrick was terminated for incompetency and insubordination. Even assuming that Myrick's immediate supervisors harbored retaliatory intentions towards him, the decision to terminate Myrick was not theirs alone to make. The evidentiary findings by the ALJ that led to a recommendation for discharge were made objectively. Myrick presents neither evidence nor argument indicating any bias or motive to retaliate on the part of the ALJ, and the record demonstrates his objectivity. NYCERS only prevailed in the Section 75 proceeding where sufficient evidence supported its allegations. The ALJ dismissed specifications without evidentiary support and specifications that were out of step with common definitions or policies. These findings were made after a process designed to protect Myrick's interests, in which he participated with the benefit of an attorney's representation. In terminating Myrick, NYCERS merely adopted the findings of the ALJ. (Def. Ex. V.) Although there is no doubt that the relationships between Myrick and his supervisors was strained, the process mandated by Section 75 was sufficient to insulate the ultimate decision to discharge Myrick from any feelings of resentment or personal bias on the part of those against whom he complained.
The ALJ ruled that NYCERS failed to meet its burden on seven of the charges against Myrick. (Def. Ex. B at 61.) These dismissals provide strong evidence of the ALJ's objectivity and support the conclusion that his decisions were void of any of the frustration or intolerance that Myrick's supervisors at NYCERS may have harbored after years of grievances and poor evaluations. Five of the dismissals were for failure to produce sufficient evidence. (Id. at 33-34, 36-39, 45.) On another charge, the ALJ rejected NYCERS's interpretation of AWOL as including days where Myrick was "mental[ly]" AWOL, meaning that Myrick was physically present but allegedly refused to work. (Id. at 47.) The ALJ concluded that AWOL "refers to physical absence from work without permission" and refused to adopt "any other interpretation." (Id. at 48.) The ALJ dismissed a charge of excessive lateness because NYCERS failed to properly warn Myrick before filing lateness charges against him and because Myrick had too few latenesses to merit discipline. The ALJ noted that NYCERS "cannot unilaterally and arbitrarily vary its rules to treat respondent in a manner different than its other employees." (Id. at 54.) Overall, the ALJ found in the agency's favor only when evidence provided clear and objective grounds for disciplining Myrick.
The ALJ observed "a fundamental and irreconcilable difference between [Myrick's] view of his duties and obligations and the quality of his work performance, and that of his supervisors." (Def. Ex. B at 62.) He noted "an intolerable 'me against them' attitude that is destructive to the productivity and working environment of the entire office" (id. at 63) and found the "misconduct proven . . . so fundamental, 'the well so poisoned,' and the underlying problems so rooted in intangibles such as personality and attitude, that little is likely to change if [Myrick] remains on the job, even in a less demanding position." (id. at 64-65).
To establish pretext, Myrick offers no evidence that casts doubt on the accuracy of the findings of the ALJ; indeed, as noted above, he conceded the accuracy of many of the specifications during the Section 75 proceeding. Instead, he alleges that NYCERS breached several policy guidelines during his tenure at the agency and during the disciplinary proceedings, and argues that these breaches create issues of fact about the validity of the proffered reasons for termination. He claims that NYCERS altered the task and standards used to evaluate him (Myrick Aff. ¶ 22), used discriminatory interim evaluations (id. ¶¶ 23-27), improperly supervised him (id. ¶ 28), violated a collective bargaining agreement (id. ¶ 29), denied him proper grievance procedures (id. ¶¶ 30-31), and violated agency policy (id. ¶ 32).
Even treating Myrick's affirmation with the special care entitled topro se litigants, the Court finds that these alleged procedural breaches do not create any issues of fact about NYCERS's reasons for firing him, and could not support a finding by a reasonable jury that the reasons for discharging Myrick were pretextual. His claims of technical deviations from New York City policies for the most part relate to disputes with his supervisors that were considered and rejected in the Section 75 hearing, and thus have no bearing on the accuracy or good faith of the findings of the ALJ Moreover, most of the alleged deviations have no bearing on NYCERS's motives in any event. The task and standards "place employees on written notice as to their duties and the supervisory expectations of their work performance." (Def. Ex. B at 7). As noted by the ALJ, as a nonmayoral agency, NYCERS is not bound by the guidelines and, in any case, no significant deviations were demonstrated. (Id. at 7 n. 3.) More importantly, as noted earlier, Myrick had notice of these tasks and standards, and they were "the same for all other computer associates and had been the same for [Myrick] for several years." (Id. at 24-25.)
As for the interim evaluations and improper supervision, neither suggests that the findings of incompetence or misconduct were mere pretext. If interpreted generously in Myrick's favor, they might suggest that Myrick's supervisors treated him unkindly or even with poor intentions, but any such ill will was not a part of the decision to terminate Myrick, which the ALJ recommended after the full and fair evidentiary hearing process mandated by Section 75. Myrick's allegations that NYCERS violated a collective bargaining agreement, proper grievance procedures, and agency policy, also fail as pretext arguments. Myrick has not presented any evidence giving concrete content to these allegations, and even if the Court accepts them as true, Myrick has failed to demonstrate how these breaches suggest that plaintiffs discharge was motivated by retaliatory intent, rather than by the fact — established by objective evidence — that Myrick was either unable or unwilling to perform his job competently.
Even drawing all inferences in Myrick's favor, a rational jury could not conclude on this record that NYCERS acted with a discriminatory motive in discharging Myrick. Seeing no genuine issues of fact to be tried, the Court finds that summary judgment in favor of the defendant is appropriate.
CONCLUSION
Defendant's motion for summary judgment is granted. The Clerk is respectfully directed to enter judgment for defendant.