Opinion
96 Civ. 3229 (JFK).
September 29, 2000.
Daniel R. Simonette, Fine, Olin Anderman, P.C., New York, N Y, for Defendant.
Byron S. Menegakis, Jeffrey Niederhoffer, Jeffrey Schanback, General Counsel New York City Housing Authority, New York, N.Y., for Plaintiff.
OPINION and ORDER
Before the Court is Defendant's motion for summary judgment on all of Plaintiff's claims, pursuant to Fed.R.Civ.P. 56. For the reasons discussed below, Defendant's motion is granted.
Background
Plaintiff John Rodriguez, an Hispanic male, alleges that Defendants New York City Housing Authority ("NYCHA") and Joanna Aniello discriminated against him on the basis of his ethnic origin and subjected him both to workplace harassment and unjust termination. Plaintiff states claims for unlawful discrimination and retaliation pursuant to 42 U.S.C. § 1981, 1983, and 1985, Title VII of the Civil Rights Act of 1964, as amended ("Title VII") 42 U.S.C. § 2000e et seq., the Fourteenth Amendment of the United States Constitution, New York State Executive Law § 296, and Title 8 of the Administrative Code of the City of New York; as well as a claim against NYCHA for negligent supervision of Ms. Aniello. Plaintiff seeks, among other things, injunctive relief requiring reinstatement of his job, compensatory damages and punitive damages. Defendants maintain both that there was no discriminatory treatment, and that Plaintiff was discharged for cause following the determination that Mr. Rodriguez defrauded NYCHA by collecting thousands of dollars in unearned overtime.
I. Plaintiff's Employment History with NYCHA
Mr. Rodriguez worked for NYCHA from 1970 to 1996, holding various positions, and, until 1994, he had received only favorable ratings and commendations. In 1988, Plaintiff was appointed Assistant Superintendent and assigned to the Technical Services Department. His duties included performing maintenance operations, supervising chain-link fence maintenance crews and handling administrative and clerical work.
In late 1994, notwithstanding Mr. Rodriguez' previously spotless record with his employer, the NYCHA Inspector General ("IG") began an investigation into his seemingly excessive claims for overtime compensation. The investigation took ten months to complete; in October, 1995, the IG issued a report recommending that disciplinary charges be brought against Plaintiff. See Defs.' 56.1 Stmt. ¶ 9. On January 19, 1996, following the recommendation of the IG, NYCHA preferred administrative charges of misconduct against Mr. Rodriguez, alleging that during the period from February 1993 through November 1994 Plaintiff a) intentionally secured monetary payments to which he was not entitled by falsely claiming to have worked overtime; b) made false official "Overtime Payment Records" and improperly secured the signature of his supervisor on such records; c) submitted false or misleading time records; d) punched in and out at the wrong location; and e) represented that he had worked during hours when he was actually commuting to and from work. See Menegakis Decl., Exh. F.
Pursuant to § 75 of New York's Civil Service Law, Plaintiff, represented by counsel, had an opportunity to contest the charges against him at an administrative trial. After determining that the Plaintiff's testimony was not credible, the Trial Officer concluded that there was substantial evidence against Mr. Rodriguez and upheld all but the least serious of the charges. In the face of such serious charges, which involved "dishonesty, misrepresentation and falsification of records," the Trial Officer felt compelled to recommend that NYCHA terminate Plaintiff's employment. See Menegakis Decl., Exh. G at 27. The NYCHA Board accepted the Trial Officer's recommendations and Plaintiff was terminated from his employment with the NYCHA on June 12, 1996.See Defs. 56.1 Stmt. ¶¶ 15-16.
The Trial Officer found that there was sufficient evidence to sustain each of the charges except the allegation that Plaintiff punched in and out at the wrong location. See Menegakis Decl., Exh. G at 23-27.
II. Plaintiff's Allegations of Discrimination and Retaliation
Defendant Joanna Aniello was hired by NYCHA in May of 1994 as Deputy Assistant Director of Management for Technical Services, and in June of 1995 she was named Director of the Technical Services Department. Tensions arose quickly between Mr. Rodriguez and his new supervisor; indeed, according to Plaintiff, after Ms. Aniello joined NYCHA she "began a campaign of harassing Mr. Rodriguez and other Hispanic employees in the Department." Am. Compl. ¶ 27. Ms. Aniello denies waging any such campaign of harassment.
In his Amended Complaint Mr. Rodriguez detailed several alleged examples of harassment by Ms. Aniello, including claims that she: 1) reassigned Mr. Rodriguez's NYCHA automobile in October of 1994 "without reason or explanation;" 2) for "personal and race based reasons," initiated the "unwarranted" investigation by the NYCHA IG into Plaintiff's overtime claims; 3) reassigned walkie-talkies that had been allocated to fence crews under Plaintiff's supervision, "making their jobs more hazardous to perform;" 4) instructed Plaintiff's supervisor, Arnold Rosenfeld, to "serve unwarranted counseling memoranda [on the Plaintiff] for no legitimate reason;" and 5) moved Plaintiff's office to unacceptably small quarters "without notice or reason,". See Am Compl. ¶¶ 34a, b, c, e, f; Pl.'s Mem. at 11.
Plaintiff was eventually assigned another NYCHA car after the intercession of a new supervisor, Joseph Ramos. See Am. Compl. ¶ 34a; Def.'s 56.1 Stmt. ¶¶ 23-24.
On June 26, 1995, while the IG investigation against him was pending, Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") against NYCHA and Ms. Aniello, alleging that "[w]ith the advent of an Italian Female Director of Technical Services . . . I and my staff have been subjected to serious inequities in the terms and conditions of our employment." See Menegakis Decl., Exh. P. Plaintiff asserts that the next month, at least partly in retaliation for his EEOC claim, Ms. Aniello "vicious[ly]" blocked Mr. Rodriguez' promotion to Resident Building Superintendent by directing Mr. Rosenfeld, who had initially endorsed this promotion, to write an unfavorable recommendation. See Am. Compl. ¶ 34d. In addition, Mr. Rodriguez charges that, on August 17, 1995, Ms. Aniello, allegedly "without any reason or explanation," once again reassigned his NYCHA automobile, "making it impossible for [him] to perform his duties." Id. ¶ 34a.
On August 21, 1995, still suffering from injuries sustained in a car accident the previous May, Plaintiff began an extended workers' compensation leave. See Defs.' 56.1 Stmt. ¶ 5. Plaintiff filed a second complaint with the EEOC the next day, alleging Defendants had retaliated against him for filing the first EEOC claim. See Menegakis Decl., Exh. Q. When Plaintiff returned to work almost three months later he found that he had been "stripped of his supervisory responsibilities without notice," Am. Compl. ¶ 34f, and that his office had again been moved, with the contents of his desk emptied into a cardboard box. See id. ¶ 34c. On January 19, 1996, four days after NYCHA brought disciplinary charges against Mr. Rodriguez, he went out on another extended worker's compensation leave, remaining on leave until his termination. See Defs.' 56.1 Stmt. ¶ 5. Plaintiff filed the Original Complaint in this action on May 3, 1996. He filed another EEOC retaliation claim on June 27, 1996, and amended it on August 5, 1996, to include charges that Defendants, in a final act of retaliation, stopped payments due to Mr. Rodriguez from his accumulation of approximately 200 days of unused annual leave. Plaintiff amended his Complaint in this action on October 8, 1996, to include all of the charges filed with the EEOC.
This complaint was later amended on October 11, 1995.
Discussion
Defendants now move for summary judgement on all of Plaintiff's claims:
I. Summary Judgment Standards
A motion for summary judgment may be granted under Fed.R.Civ.P. 56 if the entire record demonstrates that "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). When viewing the evidence, the Court must "assess the record in the light most favorable to the non-movant and . . . draw all reasonable inferences in its favor." Delaware Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990), cert. denied, 500 U.S. 928 (1991); see also McLee v. Chrvsler Corp., 109 F.3d 130, 134 (2d Cir. 1997). Although the movant initially bears the burden of showing that there are no genuine issues of material fact, once such a showing is made, the opposing party must produce sufficient evidence to permit a reasonable jury to return a verdict in its favor, identifying "specific facts showing that there is a genuine issue for trial," Anderson, 477 U.S. at 248, 256. Since "unsupported allegations do not create a material issue of fact,"Weinstock v. Columbia Univ., No. 99-7979, 2000 WL 1200161, at *5 (2d Cir. Aug. 23, 2000), a summary judgment motion "will not be defeated merely . . . on the basis of conjecture or surmise."Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see also Gonega v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).
Although discrimination cases turn on factual questions regarding a party's intent, the Second Circuit has held that "[s]ummary judgment is appropriate even in discrimination cases."Weinstock, 2000 WL 1200161 at *5. As the Supreme Court reaffirmed in St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993), "[t]here will seldom be "eyewitness testimony as to the employer's mental processes. But none of this means that trial courts . . . should treat discrimination differently from other ultimate questions of fact," (quoting United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983)); see also Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829 (1985) ("[T]he salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation.")
II. Application of Summary Judgment Standards
Plaintiff has brought claims against NYCHA and Ms. Aniello under several different legal theories, which will be considered in turn.
A. Plaintiff's Discrimination Claims 1. Standards
Plaintiff states claims for unlawful discrimination pursuant to 42 U.S.C. § 2000e et seq., (Title VII of the Civil Rights Act of 1964, as amended ("Title VII")), 42 U.S.C. § 1981, 1983, New York State Executive Law § 296, and Title 8 of the Administrative Code of the City of New York, all of which are analyzed under the Title VII framework.
Courts generally follow the structure of Title VII analysis when considering employment discrimination claims. See St. Mary's Honor Ctr., 509 U.S. at 506 n. 1 (assuming that this "framework is fully applicable to racial-discrimination-in-employment claims under 42 U.S.C. § 1983); Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989) (holding that the McDonnell framework should apply to discrimination claims under § 1981); Torres v. Pisano, 116 F.3d 625, 629 n. 1 (2d Cir.), cert. denied, 522 U.S. 997 (1997) (noting that "claims brought under New York State's Human Rights Law are analytically identical to claims brought under Title VII"); Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1177 (2d Cir. 1996) ("New York courts rely on federal law when determining claims under the New York Human Rights Law."); Jalal v. Columbia Univ., 4 F. Supp.2d 224, 232 n. 10 (S.D.N.Y. 1998).
Title VII makes it unlawful "for an employer . . . to fail to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). To analyze a Title VII discrimination claim, a court applies the three-step burden shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See St. Mary's Honor Ctr., 509 U.S. at 506-08;Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-256 (1981); Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996), cert. denied, 520 U.S. 1228 (1997). Under this framework, the plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination.See McDonnell Douglas, 411 U.S. at 802; Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994). This may be done by showing: (1) that Plaintiff belongs to a protected class; (2) that he was performing his duties satisfactorily; (3) that he suffered an adverse employment action; and (4) that the adverse action occured in circumstances giving rise to an inference of discrimination. See id. at 37. The burden of proof that Plaintiff must meet to establish a prima facie case is minimal.See Hollander v. American Cyanamid Co., 172 F.3d 192, 199 (2d Cir.), cert. denied, 120 S.Ct. 399 (1999).
The Court of Appeals for the Second Circuit has not been consistent in its articulation of the fourth element of this test, however. In Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075 (1998), the Court listed the fourth element as requiring that the position was ultimately filled by a person not of the protected class. See 114 F.3d at 1335; see also Jenkins v. Metropolitan Opera Ass'n, Inc., No. 96 Civ. 6665, 1999 WL 147745, at *5 n. 3 (S.D.N Y March 18, 1999), aff'd, 213 F.3d 626 (2d Cir. 2000) (discussing inconsistency within Second Circuit on fourth element of theMcDonnell Douglas test); Fesce v. Guardsman Elevator Co., No. 96-6783, 1998 WL 142350, at *7 (S.D.N.Y. March 26, 1998) (same),aff'd, 173 F.3d 844 (2d Cir. 1999).
If the plaintiff makes a prima facie showing of discrimination, the law creates a presumption that the employer unlawfully discriminated against the plaintiff. See Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075 (1998). The burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for the employee's rejection. Burdine, 450 U.S. at 253; McDonnell Douglas Corp., 411 U.S. at 802; Shumway v. United Parcel Service, Inc., 118 F.3d 60, 63 (2d Cir. 1997). "Any legitimate, non-discriminatory reason will rebut the presumption triggered by the prima facie case . . . the defendant need not persuade the court that it was actually motivated by the proffered reason."Fisher, 114 F.3d at 1335 (quoting Burdine, 450 U.S. at 254). If the defendant satisfies this burden of production, the presumption of discrimination "simply drops out of the picture" and the plaintiff has the burden to prove by a preponderance of the evidence that the employer's stated reason was merely a pretext for discrimination. See St. Mary's, 509 U.S. at 507-08; Burdine, 450 U.S. at 253; Fisher, 114 F.3d at 1336.
2. Application
Defendants first argue that Plaintiff failed to meet his initial burden of proving a prima facie case of discrimination, since, because of his misconduct, he cannot prove that he was minimally qualified for his position. Defendants also argue that Plaintiff failed to establish a prima facie case with regard to his harassment claims since the actions complained of do not rise to the level of adverse employment actions. This Court must disagree. The burden of establishing a prima facie case is minimal. See St. Mary's, supra, 509 U.S. at 506; see also Goenaga v. March of Dimes, 51 F.3d 14, 18 (2d Cir. 1995) (holding plaintiff's burden in presenting evidence permitting an inference of discrimination is "de minimis"). Plaintiff, an Hispanic, is clearly a member of a protected class, he suffered adverse employment actions, and he was satisfactorily performing his duties prior to the date the alleged harassment began. The Court finds that Mr. Rodriguez has established a prima facie case of discrimination.
Once the Plaintiff establishes a prima facie case of discrimination the burden shifts to the Defendants to articulate a legitimate, non-discriminatory reason for the allegedly discriminatory acts; Defendants have clearly met this burden. NYCHA's articulated reason for firing Mr. Rodriguez, namely that Plaintiff had stolen thousands of dollars from the NYCHA by claiming unearned overtime compensation, could hardly be more compelling. Defendants have also profferred legitimate business reasons for each of the other incidents of alleged harassment.
According to Defendants, the investigation into Plaintiff's overtime claims, which Plaintiff asserts was unwarranted and motivated by Ms. Aniello's race-based hostility, was in fact initiated by Daniel Hogan, Ms. Aniello's supervisor, after he noticed that Mr. Rodriguez had collected what he considered to be an inordinate amount of overtime. Ms. Aniello testified that she was not even involved in the decision to refer the matter to the Inspector General, and Plaintiff has not offered any evidence to rebut her testimony. See Menegakis Decl., Exh. A at 48-49. Defendants further argue that, far from being "unwarranted," the IG's investigation yeilded substantial evidence that Plaintiff had defrauded the NYCHA, evidence that convinced the Inspector General to recommend that charges be brought. See Menegakis Decl., Exh. G at 27.
Plaintiff's allegation that Ms. Aniello "viscious[ly]" blocked his promotion is also disputed by the Defendants who note that the memo recommending that Plaintiff be passed over was not even written by Ms. Aniello (who was out of the office for about two months at the time for medical reasons). See Defs.' 56.1 Stmt. ¶ 29. Defendants assert that the memorandum was written by Robert Podmore, in Ms. Aniello's name, and claim that the decision to postpone consideration for a promotion pending resolution of serious disciplinary charges was a legitimate business decision in which Ms. Aniello was not involved. See Aniello Decl. ¶ 30. Defendants also contend that Ms. Aniello had no part in the decision to relieve Mr. Rodriguez of his supervisory duties. According to Defendants, changes in Plaintiff's schedule, office location and responsibilities resulted from a general reorganization of the Technical Services Department, not a personal or racially motivated vendetta against the Plaintiff.See Defs.' 56.1 Stmt. ¶¶ 29, 31.
In response to Mr. Rodriguez's charges that NYCHA reallocated equipment in order to harrass him, Defendants assert that there were rational business reasons for each action. Plaintiff's NYCHA vehicle was reassigned on two occassions, first because it was needed as a replacement for a vehicle stolen from the heating division, and later in response to a general Management directive to return under-utilized cars. In both instances, logs showed that Plaintiff had used the car primarily to commute to and from work, and Defendants claim that Plaintiff's ability to perform his duties was not compromised since he could obtain a car as needed for site visits through Ms. Aniello's office. See Defs.' 56.1 Stmt. ¶¶ 21, 25-26. Furthermore, Ms. Aniello testified that the fence crew's walkie-talkies were reassigned to workers in the Elevator for efficiency reasons; unlike the fence crews, workers in the Elevator Unit often work apart from each other and so could better make use of walkie-talkies. See Menegakis Decl., Exh. A at 105.
Since the Defendants have stated legitimate business reasons for their actions, the presumption of discrimination falls away and the burden shifts again to the Plaintiff to cite specific evidence that the proffered reasons were merely pretexts for discrimination. See St. Mary's, 509 U.S. at 507-08. Plaintiff has utterly failed to meet this burden. First of all, since Flaintiff failed to submit a Local Rule 56.1 Statement of uncontested facts as required by Local Rule 56.1(b), this Court could deem all of the facts set forth in Defendants' Rule 56.1 Statement as admitted by the Plaintiff. See Gubitosi v. Kapica, 154 F.3d 30, 31 n. 1 (2d Cir. 1998) (accepting as true the material facts set forth in Defendant's statement because Plaintiff failed to respond). It is unnecessary to rely on such formalistic reasoning, however, since Plaintiff has not presented a single piece of evidence in the record to substantiate any of his allegations. In fact, Plaintiff relies solely on his own deposition testimony, and, while the Court may not, in its deliberations, weigh the relative value of that testimony since determinations of credibility are inappropriate at the summary judgment stage, a claim may not survive a summary judgment motion merely on the basis of unsupported accusations. See Meiri, supra, 759 F.2d at 998 ("To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases.").
Local Rule 56.1(c) of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York states that: "All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party."
In challenging Defendants' stated reasons for his dismissal Plaintiff cannot contest the legitimacy of his discharge itself since that issue has already been litigated. On October 9, 1996, Plaintiff brought a CPLR Article 78 proceeding challenging his dismissal. The matter was transferred to the Appellate Division of the Supreme Court which, in a decision dated February 25, 1999, upheld the NYCHA's decision to terminate Plaintiff's employment, finding substantial evidence of "systematic dishonesty, misrepresentation and falsification of records." See Menegakis Decl., Exh. J. Under New York law, courts may not relitigate an issue if "the issue in question was actually and necessarily decided in a prior proceeding and . . . the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding." See Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir. 1995); see also Rameau v. New York State Department of Health, 741 F. Supp. 68, 70-71 (S.D.N.Y. 1990) ("[A]lthough a judgment in a prior Article 78 proceeding is not a bar to a subsequent federal civil rights action, the federal plaintiff is precluded from relitigating issues that were fully and fairly litigated and necessarily determined in the Article 78 proceeding."). Since Plaintiff had a full and fair opportunity to litigate his claim for unjust termination in the Article 78 proceeding he is estopped from raising that issue again here.
Plaintiff nevertheless maintains that Defendants' stated reasons for dismissing him are pretextual since, according to him, Defendants initiated the investigation against him for discriminatory reasons. See Pl.'s Mem. at 2 (asserting that in proceeding against him "NYCHA chose to selectively enforce its rules."). Plaintiff fails, however, to present a single shred of evidence to substantiate this claim. He can cite no instance of a non-Hispanic NYCHA employee who falsely claimed overtime compensation and yet was not disciplined. In fact, Mr. Rodriguez failed to identify any individual, other than himself, who was even suspected of claiming unwarranted overtime compensation. See Defs.' 56.1 Stmt. ¶ 49. He asserts that the "decision to pursue a disciplinary hearing . . . was personal and raced based," id. at 11, but he fails to provide illustrations of anti-Hispanic hostility on the part of Ms. Aniello or any other NYCHA official. Plaintiff does assert that Ms. Aniello was promoted ahead of more-senior Hispanic candidates, and that, in turn, she promoted other whites ahead of Latino workers, but provides no details to support his conclusion that these promotions were motivated by ethnic hostility rather than by legitimate business concerns. Furthermore, Defendants' emphatically deny any discriminatory intent, noting that NYCHA has adopted comprehensive anti-discrimination policies. See Menegakis Decl., Exs. N-O. In short, Plaintiff has failed to raise any credible issue of fact that could suggest that Defendant's proferred reason for discharging the Plaintiff was a mere pretext for discrimination.
Plaintiff attempts to support his charges of selective enforcement by stating that the Trial Officer, in her report following the § 75 hearing, "indicated that all evidence clearly indicated that Plaintiff's supervisor was aware of what [Plaintiff] was doing." Pl.'s Mem. at 11. In fact, the Trial Officer indicated no such thing. She did find that Plaintiff's supervisor, Arnold Rosenfeld, either authorized Mr. Rodriguez to sign Rosenfeld's name to his payroll records or knew that Mr. Rodriguez was so doing. See Pl.'s Mem., Exh. C at 26-27. She went on, however, to note that Rosenfeld's knowledge or authorization of this practice was irrelevant to the question of whether Plaintiff abused the trust placed in him to defraud his employer.See id.
Plaintiff's conclusory assertion that Ms. Aniello sought to "systematically remove or force out the Latino workers from her department," Pl.'s Mem. at 5, is not supported by citation to any evidence other than Plaintiff's own conclusory testimony.
Similarly, Plaintiff has not presented any evidence from which a reasonable finder of fact could conclude that the Defendants discriminated against him through adverse action other than dismissal. Defendants have profferred legitimate business reasons for each of the actions complained of by Plaintiff, including the re-assignment of Plaintiff's NYCHA vehicle, the relocation of his office, the alteration of his schedule and the negative promotional memorandum. Other than recounting the events themselves, Plaintiff doesn't even attempt to illustrate that Defendants' explanations were pretexts for discriminatory conduct. See Pl.'s Mem. at 13. Considering Plaintiff's total failure to meet his burden under McDonnell Douglas Corp. v. Green, supra, summary judgment on Plaintiff's discrimination claims under Title VII is therefore appropriate for Defendant. Since analysis of discrimination claims under 42 U.S.C. § 1981 and 1983, New York State Executive Law § 296, and Title 8 of the Administrative Code of the City of New York, mirrors Title VII analysis, see note 3, supra, summary judgment is granted for Defendant on Plaintiff's claims based on these statutes as well.
Without detailing a legal rationale, Plaintiff also states a claim under 42 U.S.C. § 1985. This Court assumes that he intends to bring this claim under subsection (3), the only subsection arguably applicable to this case, and holds that summary judgment is appropriate for the Defendants on this claim, too. Plaintiff's § 1985(3) claim fails for several reasons, including the crucial fact that "* 1985(3) may not be invoked to redress violations of Title VII." See Great American Federal Savings Loan Ass'n v. Novotony, 442 U.S. 366, 376, 378 (1979) (noting that "Section 1985(3) . . . creates no rights. It is a purely remedial statute, providing a civil cause of action when some otherwise defined federal right . . . is breached by a conspiracy"); see also Sherlock v. Montefiore Medical Ctr., 84 F.3d 522, 527 (2d Cir. 1996).
B. Plaintiff's Retaliation Claims
In analyzing claims of discriminatory retaliation, courts again use the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, supra. See Richardson v. N.Y. State Dep't of Correctional Serv., 180 F.3d 426, 443 (2d Cir. 1999). "In order to make out a prima facie case of retaliation, a plaintiff must show by a preponderance of the evidence i) participation in a protected activity known to the defendant; ii) an employment action disadvantaging the plaintiff; and in) a causal connection between the protected activity and the adverse employment action." Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995).
Although the standard for meeting this burden is minimal, Plaintiff has failed to establish a prima facie case for retaliation regarding at least some of the adverse employment actions of which he complains. Specifically, all but one of the disciplinary counseling memoranda which Plaintiff asserts are examples of discriminatory retaliation were actually issued before Plaintiff filed his complaint with the EEOC, see Menegakis Decl., Exh. L., and the first two changes of Plaintiff's office location also pre-dated Plaintiff's EEOC claim. Furthermore, Ms. Aniello's first decision to reassign Plaintiff's automobile was made before Ms. Aniello even knew of Plaintiff's complaint to the EEOC, so no causal connection between the complaint and the employment action can be established. See Defs.' 56.1 Stmt. ¶ 48 (stating that Ms. Aniello did not become aware of Plaintiff's EEOC claim until the Fall of 1995). Finally, according to Plaintiff, Ms. Aniello retahated against him by recommending that his promotion be denied pending disciplinary action. See Am. Compl. ¶ 34d. In fact, this decision was made by Robert Podmore while Ms. Aniello was out of the office for medical reasons. See Aniello Decl. ¶ 30. Plaintiff has made no showing that Mr. Podmore even knew of the EEOC claim, much less that the recommendation not to promote Mr. Rodriguez was made in retaliation for that claim.
Even assuming that Plaintiff has established a prima facie case of retaliation regarding the rest of his claims, it is clear for the reasons discussed earlier that Plaintiff has not met the burden of presenting evidence that Defendants' profferred reasons for the employment actions was pretextual. Since Defendant has supplied legitimate business reasons which burst the presumption of discriminatory retaliation established in the Plaintiff's prima facie case, and the Plaintiff has not raised a single material fact to expose those reasons as mere pretexts for discrimination, Plaintiff's retaliation claims must fail.
The adverse actions cited include the second reassignment of Plaintiff's NYCHA vehicle, the changing of his schedule, and the reassignment of walkie-talkies used by his fence crews.
Defendants rebut one new charge, that they retaliated against the Plaintiff by denying him payment for accrued leave by noting that Plaintiff was, in fact, paid the full amount authorized by NYCHA policy. See Menegakis Decl. Ex. M.
C. Plaintiff's Tort Claim
Plaintiff further alleges that NYCHA was guilty of negligent hiring and supervision in its employment of Ms. Aniello. Since plaintiff has failed to show that Ms. Aniello has illegally discriminated against him in any way Plaintiff has not suffered any damages that could remotely be deemed caused by NYCHA's supervision or hiring of Ms. Aniello. Summary judgment is granted for the Defendant on Plaintiff's negligence claim.
Conclusion
For the reasons discussed above, Defendant's motion for summary judgment is granted in its entirety. The Court orders this case closed and removed from the Court's active docket.
SO ORDERED.