ANDREW J. PECK, United States Magistrate Judge:
Plaintiff Martin Ukeje, a fifty-three year old African American man, brings this action against defendant New York City Health and Hospitals Corporation ("HHC") alleging violations of 42 U.S.C. § 1983, the New York State Human Rights Law ("NYSHRL") and the New York City Human Rights Law
Presently before the Court is HHC's summary judgment motion. (Dkt. No. 13: Notice of Motion.) The parties have consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 11.) For the reasons set forth below, HHC's summary judgment motion is GRANTED as to Ukeje's Section 1983 claim and his discrimination claims, and Ukeje's state-law retaliation claims are DISMISSED without prejudice under the United Mine Workers v. Gibbs doctrine.
On May 19, 2008, Ukeje started working for HHC at Gouverneur Hospital as a probationary Associate Respiratory Therapist, Level II. (Dkt. No. 14: HHC Rule 56.1 Stmt. ¶ 4; Dkt. No. 1: Compl. ¶ 6; Dkt. No. 15: Khandakar Aff. Ex. B: Personnel Action Form; Dkt. No. 24: Ukeje Rule 56.1 Stmt. ¶ 4.) Ukeje was a recent graduate of Molloy College, with four months experience as a Respiratory Therapist at Beth Israel Medical Center, where his annual salary was $58,000. (HHC & Ukeje Rule 56.1 Stmts. ¶ 8; Khandakar Aff. Ex. E: Ukeje Resume & Application.) Bruce Higgins, HHC's Associate Director of Specialty Services at Gouverneur Hospital, interviewed and selected Ukeje for the position. (HHC & Ukeje Rule 56.1 Stmts. ¶ 5; Khandakar Aff. Ex. D: Record of Interview; Dkt. No. 16: Higgins Aff. ¶¶ 1, 2, 4, 7.) Higgins recommended Ukeje's starting salary based on the Collective Bargaining Agreement ("CBA") between HHC and Ukeje's union, DC37. (HHC & Ukeje Rule 56.1 Stmts. ¶ 6; Higgins Aff. ¶¶ 4, 8, 10; see Higgins Aff. Ex. A: CBA.) The CBA contained a salary range for Associate Respiratory Therapists, with differences in salary based on several factors including years of experience and employment with HHC and whether the employee has a registered license. (HHC & Ukeje Rule 56.1 Stmts. ¶ 7; Higgins Aff. ¶ 8.) Ukeje's starting annual salary was $68,000 plus a pro-rated annual amount of $2,347 for having a registered license in Respiratory Therapy. (HHC & Ukeje Rule 56.1 Stmts. ¶ 9; Khandakar Aff. Ex. B: Personnel Action Form; Khandakar Aff. Ex. P: Ukeje HHC Job History.)
In March or April 2009, Ukeje discovered that a co-worker in the same position, who he believed had less seniority, was being paid $14,000 more per year. (Dkt. No. 1: Compl. ¶ 7; Dkt. No. 24: Ukeje Rule 56.1 Stmt. Ex. 1: Ukeje Dep. at 38-40.) Ukeje alleges that he discovered his coworker's pay stub in open view in a folder to which he and others had access. (Ukeje Dep. at 40-41; Ukeje Rule 56.1 Stmt.¶ 38.) On April 29, 2009, Ukeje emailed HHC Equal Employment Opportunity Officer Lois Penn stating his "EEO concerns" and "suspicion that [his] colleague, who has the same title, the same level, the same qualification and the same certification and state registration and doing the same job and 4 years city service, is earning about $12000 or more higher than [him] annually." (Dkt. No. 14: HHC Rule 56.1 Stmt. ¶¶ 10-11; Compl. ¶ 8;
On May 5, 2009, Ukeje met with Penn and expressed his concerns that a white coworker with the same title was being paid a higher salary. (HHC & Ukeje Rule 56.1 Stmts. ¶ 13; Penn Aff. ¶ 7; Ukeje Dep. at 44-45.) Ukeje presented a copy of his co-worker's pay stub dated March 20, 2009. (HHC & Ukeje Rule 56.1 Stmts. ¶ 14; Penn Aff. ¶ 8; Ukeje Dep. at 45-46.) The parties dispute the facts surrounding the remainder of this meeting. (Ukeje Rule 56.1 Stmt. ¶¶ 14-17.)
Penn alleges that she asked Ukeje where he had obtained the pay stub, and he said that he "took it from a `folder' in his department and made a copy." (HHC Rule 56.1 Stmt. ¶ 14; Penn Aff. ¶ 8.) According to Penn, Ukeje "admitted that he did not" have his co-worker's permission to make the copy. (HHC Rule 56.1 Stmt. ¶ 15; Penn Aff. ¶ 8.) Penn asked Ukeje to wait in her office while she went to speak with Labor Relations Specialist Arthur B. Simmons regarding Ukeje's actions and to discuss what action should be taken. (HHC Rule 56.1 Stmt. ¶ 16; Penn Aff. ¶ 9; Dkt: No. 18: Simmons Aff. ¶¶ 2, 5.) According to HHC, when Simmons and Penn returned to Penn's office and questioned Ukeje, he stated he had taken his coworker's pay stub and made a copy without permission. (HHC Rule 56.1 Stmt. ¶ 17; Penn Aff. ¶ 10; Simmons Aff. ¶ 7; Ukeje Dep. at 46.) Simmons determined that disciplinary action should be taken and informed Ukeje that he was suspended without pay, effective May 6, 2009. (HHC & Ukeje Rule 56.1 Stmts. ¶¶ 18-19; Compl. ¶ 10; Khandakar Aff. Ex. H: 5/05/09 Simmons Letter to Ukeje; Penn Aff. ¶ 10; Simmons Aff. ¶¶ 8-9; Ukeje Dep. at 46.) Simmons informed Ukeje that he would be served with a Notice of Statement and Charges and that his union representative would be notified. (HHC & Ukeje Rule 56.1 Stmts. ¶ 19; Khandakar Aff. Ex. H: 5/05/09 Simmons Letter to Ukeje; Simmons Aff. ¶ 9; Ukeje Dep. at 46-47.)
Ukeje alleges that he discovered the pay stub while completing his time sheet, which was in the same folder as the pay stub. (Compl. ¶ 9; Ukeje Dep. at 39-41.) Ukeje alleges that Penn never asked him where he obtained the pay stub and whether he had permission to make the copy, thus also denying that he admitted that he did not have permission to make the copy. (Ukeje Dep. at 46; Ukeje Rule 56.1 Stmt. ¶¶ 14-15, 41.) Furthermore, Ukeje alleges that Simmons never questioned him, and he did not admit to Simmons that he took the pay stub and made a copy without permission. (Ukeje Dep. at 46; Ukeje Rule 56.1 Stmt. ¶¶ 17, 41-42.)
On May 8, 2009, Ukeje was served disciplinary charges for Gross Misconduct and Misconduct. (HHC & Ukeje Rule 56.1 Stmts. ¶¶ 20-21; Simmons Aff. ¶¶ 10-11 & Ex. C: Notice & Statement of Charges.)
(HHC & Ukeje Rule 56.1 Stmts. ¶ 21; Simmons Aff. ¶¶ 10-11 & Ex. C: Notice & Statement of Charges.) Simmons subsequently determined that Ukeje was a probationary employee and amended Ukeje's disciplinary charges to add that the misconduct occurred during Ukeje's probationary period. (HHC & Ukeje Rule 56.1 Stmts. ¶ 23; Khandakar Aff. Ex. J: 5/13/09 Simmons Letter to Ukeje; Simmons Aff. ¶¶ 12-13.)
On May 19, 2009, Ukeje and his union representative attended an informal disciplinary conference presided over by Simmons. (HHC & Ukeje Rule 56.1 Stmts. ¶¶ 24-25; Khandakar Aff. Ex. J: 5/13/09 Simmons Letter to Ukeje; Simmons Aff. ¶¶ 14-15; Ukeje Dep. at 47.) Ukeje's supervisor Bruce Higgins also attended the conference and recommended that Ukeje be terminated. (HHC & Ukeje Rule 56.1 Stmts. ¶ 26; Higgins Aff. ¶¶ 22-23; Ukeje Dep. at 47.) After the conference, Simmons determined that Ukeje was not entitled to disciplinary rights and could be terminated at any time during his probationary term under the HHC Personnel Rules and Regulations. (HHC & Ukeje Rule 56.1 Stmts. ¶ 27; Simmons Aff. ¶ 17.) Simmons sent Ukeje a memorandum informing him that the Notice of Statement and Charges and conference were done in error and that he was terminated effective May 26, 2009. (HHC & Ukeje Rule 56.1 Stmts. ¶¶ 28-29; Compl. ¶ 11; Khandakar Aff. Ex. K: 5/22/09 Simmons Memo to Ukeje; Simmons Aff. ¶ 18.)
At the time of Ukeje's termination, his salary was $73,549 plus an additional $2,347 for licensure. (HHC & Ukeje Rule 56.1 Stmts. ¶ 35; Khandakar Aff. Ex. P: Ukeje HHC Job History.)
Michael Leibowitz was hired by Gouverneur Hospital in February 2005 with an annual salary of $68,862. (Dkt. No. 14: HHC Rule 56.1 Stmt. ¶ 32; Dkt. No. 15: Khandakar Aff. Ex. N: Leibowitz HHC Job History; Dkt. No. 24: Ukeje Rule 56.1 Stmt. ¶ 32.) Previously, Leibowitz was employed at several HHC facilities, including King County Hospital Center as Director of the Department of Respiratory Care and Queens Hospital Center as Staff Therapist. (HHC & Ukeje Rule 56.1 Stmts. ¶ 33; Khandakar Aff. Ex. O: Leibowitz Resume & Application.) Prior to his employment at Gouverneur Hospital in 2005, Leibowitz had more than ten years of experience as a Respiratory Therapist with HHC and over twenty-five years of experience as a Respiratory Therapist. (HHC & Ukeje Rule 56.1 Stmts. ¶ 34; Khandakar Aff. Ex. O: Leibowitz Resume & Application.) Leibowitz obtained his Respiratory Therapy license in 1975. (HHC & Ukeje Rule 56.1 Stmts. ¶ 34; Khandakar Aff. Ex. O: Leibowitz Resume & Application.) At the time of Ukeje's termination, Leibowitz's salary was $82,613 plus an additional $2,347 for licensure and $2,989 for longevity. (HHC & Ukeje Rule 56.1 Stmts. ¶ 36; Khandakar Aff. Ex. N: Leibowitz HHC Job History.)
Rule 56 of the Federal Rules of Civil Procedure provides that the "court shall
The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir.1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir.1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.
To defeat a summary judgment motion, 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, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Instead, the non-moving party must "cit[e] to particular parts of materials in the record" to show that "a fact ... is generally disputed." Fed.R.Civ.P. 56(c); see, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356; Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (At summary judgment, "[t]he time has come ... `to put up or shut up.'" (citations omitted)), cert. denied, 540 U.S. 811, 124 S.Ct. 53, 157 L.Ed.2d 24 (2003).
In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. at 2513.
In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir.1987); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted."
When a case turns on the intent of one party, as employment discrimination and retaliation claims often do, a "trial court must be cautious about granting summary judgment." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir.1994).
In other words, to defeat summary judgment, "the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Stern v. Trs. of Columbia Univ., 131 F.3d at 312; see, e.g., Schnabel v. Abramson, 232 F.3d 83, 90-91 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.2000) (The question on summary judgment is "whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, it is not enough ... to disbelieve the employer; the factfinder must also believe the plaintiff's explanation of intentional discrimination." (quotations & alterations omitted)), cert. denied, 540 U.S. 811, 124 S.Ct. 53, 157 L.Ed.2d 24 (2003); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir.1996) (plaintiff must "produce not simply `some' evidence, but `sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely than not [discrimination] was the real reason for the discharge'").
To state a claim under Section 1983, a plaintiff must allege the violation of a right secured by the Constitution or laws of the United States by a person acting under color of state law. 42 U.S.C. § 1983; see, e.g., West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55, 101 L.Ed.2d 40 (1988); Kamholtz v. Yates Cnty., 350 Fed.Appx. 589, 591 (2d Cir. 2009); Feingold v. N.Y., 366 F.3d 138, 159 (2d Cir.2004); Ruggiero v. Krzeminski, 928 F.2d 558, 562-63 (2d Cir.1991); Rojas v. Alexander's Dep't Store, Inc., 924 F.2d 406, 408 (2d Cir.1990), cert. denied, 502 U.S. 809, 112 S.Ct. 52, 116 L.Ed.2d 30 (1991).
It is well established that a municipality may not be held liable under Section 1983 for alleged unconstitutional actions by its employees below the policy-making level solely upon the basis of respondeat superior. E.g., Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978); Patterson v. Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir.2004); DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir.1998); Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995); Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 122 (2d Cir.1991).
Any analysis of an allegation of municipal liability under Section 1983 begins with "the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation." City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412 (1989).
Ukeje alleges that HHC "maintains a policy of paying its Respiratory Therapists, including Plaintiff, in a discriminatory fashion unrelated to any legitimate, job-related variable" (Dkt. No. 1: Compl. ¶ 14) and that HHC retaliated against him "through its policy of terminating employees for opposing discrimination" (Compl. ¶ 27). Ukeje, however, has not presented any evidence from which to infer the existence of such municipal policies or practices. During Ukeje's deposition, he was questioned about his allegation that HHC maintained a policy of paying its respiratory therapists in a discriminatory fashion. (Dkt. No. 24: Ukeje Rule 56.1 Stmt. Ex. 1: Ukeje Dep. at 49-51.) To support this allegation Ukeje testified, "[t]wo persons, same title, doing the same job and there is a disparity." (Ukeje Dep. at 50.) Ukeje further testified that he did not know of anyone else who was discriminated against under this "policy." (Ukeje Dep. at 50-51.) Ukeje's counsel acknowledged that a "municipal defendant may only be held liable under section 1983 if the alleged violation resulted from an official policy, custom or practice" (Dkt. No. 21: Ukeje Opp. Br. at 5, citations omitted), but he does not provide any evidence to meet or arguments to support this burden. Counsel simply quotes to City of Okla. City v. Tuttle, 471 U.S. 808, 830 n. 5, 105 S.Ct. 2427, 2440 n. 5, 85 L.Ed.2d 791 (1985): "`Some officials... may occupy sufficiently high policy-making roles that any action they take under color of state law will be deemed official policy.'" (Ukeje Opp. Br. at 5, quoting City of Okla. City v. Tuttle.) While the factual dispute as to what Ukeje told HHC and why it fired him might well prevent summary judgment if there were a retaliation claim analyzed under Title VII's burden shifting analysis, Ukeje has not established evidence of any policy, and so his Section 1983 retaliation claim fails. (See also Dkt. No. 25: HHC Reply Br. at 4.)
Since plaintiff Ukeje has not shown evidence of any municipal policy or practice, HHC's summary judgment motion as to plaintiff's Section 1983 retaliation claim is
Ukeje's remaining causes of action, i.e., his claim for retaliation under the NYSHRL (Dkt. No. 1: Compl. ¶¶ 1, 35-39) and NYCHRL (Compl. ¶¶ 1, 45-49), are state law claims. Since the parties have not alleged diversity jurisdiction and Ukeje's federal claims are being dismissed, the Court declines to exercise supplemental jurisdiction over Ukeje's remaining state law claims. See, e.g., Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 & n. 7, 108 S.Ct. 614, 619 & n. 7, 98 L.Ed.2d 720 (1988) ("[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the [supplemental] jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims."); United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 250 (2d Cir.2008); Quinones v. Mamis-King, 155 Fed.Appx. 547, 548 (2d Cir.2005); Gelb v. Bd. of Elections of City of N.Y., 155 Fed.Appx. 12, 15 (2d Cir.2005), cert. denied, 547 U.S. 1129, 126 S.Ct. 2030, 164 L.Ed.2d 782 (2006); Motorola Credit Corp. v. Uzan, 388 F.3d 39, 56 (2d Cir.2004), cert. denied, 544 U.S. 1044,
For the reasons set forth above, HHC's summary judgment motion (Dkt. No. 13) is GRANTED in part and Ukeje's Section 1983 claim and his state and federal discrimination claims are DISMISSED with prejudice. Ukeje's NYSHRL and NYCHRL retaliation claims are DISMISSED without prejudice under the United Mine Workers v. Gibbs doctrine. The Clerk of Court is directed to close this case.
SO ORDERED.
