RONNIE ABRAMS, District Judge:
Pro Se Plaintiff J. Claudel Cayemittes brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., against The City of New York Department of Housing Preservation and Development ("HPD" or "Defendant"), the sole remaining Defendant in this action. Before the Court is Defendant's motion for summary judgment. For the reasons set forth below, the motion is granted.
As is generally the case, the facts the Court has considered in connection with this motion derive from the evidence submitted
Pursuant to Local Civil Rule 56.2 (requiring "Notice to Pro Se Litigant Who Opposes a Summary Judgment") Defendant timely advised Plaintiff of the procedures governing summary judgment submissions, including that Plaintiff "may [not] oppose summary judgment simply by relying upon the allegations in [his] amended complaint" and that "[a]ny witness statements must be in the form of affidavits ... [and] based on personal knowledge stating facts that would be admissible in evidence at trial." (Dkt. 51.) Defendant also timely provided Plaintiff with copies of the text of Federal Rule of Civil Procedure 56 and Local Civil Rule 56.1. Plaintiff was therefore adequately notified that "[e]ach statement by the ... opponent pursuant to Rule 56.1([b]), including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(c)." Local Civ. R. 56.1(d).
Plaintiff has filed two 56.1 Statements that do not comply with these rules.
The first of these submissions, which responds to Defendant's 56.1 Statement, is properly comprised of a list of numbered paragraphs each of which "concede[s]" or "dispute[s]," as the case may be, the fact contained in the corresponding numbered paragraph in Defendant's submission. Regardless of whether a fact is conceded or disputed, however, Plaintiff proceeds to add, in a majority of these paragraphs, a supply of additional facts that are unsupported by admissible record evidence. See, e.g., Pl.'s 56.1 ¶¶ 18, 21, 30-33, 57. Additionally, many of these "facts" are, inter alia: speculative, see, e.g., Id. ¶ 58 ("Neither Carbine [n]or Hendrickson understood [P]laintiffs job as director of TPT/TLS."); conclusory, see, e.g., Id. ¶ 47 ("By late February 2008, [P]laintiff had already been subjected to several retaliatory actions by Carbine for his complaints."); and/or argumentative, see, e.g., Id. ¶ 82 ("At best this sounds like a glib take on the role of DAMP ...").
Plaintiff's second 56.1 Statement consists, according to Plaintiff, of additional "material facts [that] are not in dispute." (Pl.'s 56.1 p. 1.) This submission, which runs a full sixty-eight pages, is not "short and concise" and is not organized into numbered paragraphs, as the Local Rule requires. More fundamentally, it does not contain, for the most part, facts corroborated by admissible evidence, but rather, statements that are, inter alia: vague, see, e.g., Pl.'s 56.1 p. 52 (Carbine "made vague disparaging comments to others about [P]laintiff's job performance but [has] always been careful not to ever give specifics or provide any proof."); conclusory, see, e.g., Id. p. 7 ("Aragon decided to evaluate [P]laintiff ... in order to retaliate against plaintiff ..."); speculative, see, e.g., Id. p. 5 ("Carbine was not interested in learning the TPT or TLS programs"); relevant only to claims that (as explained below) have been dismissed as time-barred or otherwise legally insufficient, see, e.g., Id. p. 51 ("In 2002 Aragon summoned plaintiff
Despite these various infirmities, acknowledging that the various procedural rules attendant to opposing summary judgment may be challenging or confusing for a pro se litigant, the Court has reviewed Plaintiffs submissions in their entirety and has done its best to separate the wheat from the chaff. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir.2001) ("A district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules."). Specifically, although Plaintiff has not submitted a declaration or other sworn statement in opposition to Defendant's motion, the Court will consider the unsworn content in Plaintiff's 56.1 Statement, to the extent it is otherwise admissible. In so doing, the Court relies on the assumption that Plaintiff would have testified to such content had he complied with the governing rules. See Geldzahler v. New York Med. Coll., 746 F.Supp.2d 618, 620 n. 1 (S.D.N.Y.2010) ("[D]espite [plaintiff] having received the 56.2 Notice, we take into account his status as a pro se litigant and will consider the unsworn statements in his 56.1 Response on the assumption that he would have testified to these statements in his Declaration."); Shah v. Kuwait Airways Corp., 653 F.Supp.2d 499, 506 (S.D.N.Y.2009) (Lynch, J.) ("[T]he Court will consider [plaintiffs] declaration, even though it is unsworn, on the assumption that, if its allegations were sufficient to raise an issue of fact, Shah would be given an opportunity to submit an affidavit in the proper form attesting to those allegations."). By the same token, the Court has disregarded the content of Plaintiffs 56.1 Statements that it deems conclusory, speculative, irrelevant, argumentative, unsupported or otherwise inappropriate for consideration. See Shortt v. Congregation KTI, No. 10 Civ. 2237(ER), 2013 WL 142010, at * 1 n. 2 (S.D.N.Y. Jan. 9, 2013) ("[I]n analyzing the instant motion, the Court has disregarded averments in Plaintiff's 56.1 Response that are ... not supported by citations to admissible evidence in the record ... or that are improper legal arguments.").
Plaintiff has submitted over one thousand pages of emails, other contemporaneous documentation, transcripts of depositions he took and personal notes he apparently prepared in connection with this litigation.
The Court has reviewed and considered all of these materials. It notes, however, that it has not always been able to link them to the portions of Plaintiff's 56.1 Statements they are ostensibly intended to support. First, these materials have not been presented to the Court in any logical or convenient manner. Plaintiff has merely grouped together as "exhibits" documents that are only loosely thematically related, see, e.g., Pl.'s Ex. J ("Some Green Project [sic] that [P]laintiff worked on intermittently from about November 2007 to April 2008"), or have no substantive relationship to one another at all, see, e.g., Pl.'s Ex. L ("Various discovery items under heading of `Pl.' for Plaintiff in Numerical Order"). Second, as noted above, Plaintiffs 56.1 Statement only intermittently cites to this documentation. Third, where Plaintiff has included a citation, it is with few exceptions not a citation to the exhibit itself, but rather to a Bates number, to a unique numbering system Plaintiff has applied to certain documents or to a vague description of the document. See, e.g.,
In summary, in light of Plaintiff's pro se status, the Court has considered "the totality of the parties' submissions in identifying disputed material facts and will construe those disputed facts in plaintiffs favor as is appropriate on summary judgment." Shah, 653 F.Supp.2d at 501 n. 1 (citing Merritt v. Shuttle, Inc., 245 F.3d 182, 186 (2d Cir.2001)).
Plaintiff began working at HPD in September 1986 as a budget analyst responsible for communicating HPD's funding needs to the Office of Management and Budget ("OMB"), formulating written requests to OMB and obtaining ultimate approval for HPD's funding proposals. (Def.'s 56.1 ¶¶ 1-2.) In November 1999, Plaintiff became a "financial analyst" assigned to the Third-Party Transfer Unit in the HPD division then known as the Division of Anti-Abandonment, which was subsequently renamed the Division of Neighborhood Preservation ("DNP").
Also in November 1999, Plaintiff settled a race discrimination dispute with HPD arising from Plaintiffs removal from HPD's budget office. (Rizvi Decl. Ex. P.) Pursuant to a term of the settlement agreement (the "1999 Settlement"), Plaintiff was promoted to Director of the Third-Party Transfer Unit ("TPT"), which he agreed to because "it fit [his] plans for [his] career." (Id.; Cayemittes Tr. 41.) In that capacity, he "was responsible for running the [TPT] program [and] implementing the law that authorized the program." (Id. 42.)
As of July 2001, in addition to his role as Director of TPT, Plaintiff became Director of the Tax Lien Sale Unit ("TLS" or, with TPT, "TPT/TLS")
As Director of TPT/TLS, Plaintiff did not receive any complaints about his "job performance, lack of cooperation or teamwork" and Carbine "never formally or informally complained to [Plaintiff] about any aspect of his job performance." (Pl.'s 56.1 pp. 4, 9.) Rather, Plaintiff received positive feedback for his management of TPT/TLS from "[m]ore than one Commissioner" and "other tax enforcement and anti-abandonment stakeholders" who "complimented [P]laintiff about the program intelligence he ... provided." (Id. pp. 4-5.) Indeed, Carbine "often profusely praised [P]laintiff's work, especially before meetings with senior officials" and "told [P]laintiff that he was an outstanding administrator and a highly professional and excellent manager." (Id. pp. 9, 10.)
In fall 2007, DNP underwent a "reassignment process" to address numerous "[p]ersonnel" and "supervisory issues" throughout the "whole division," including certain issues relating to Plaintiff. (Carbine Tr. 62-66, 103.) As a result of the reassignment process, five of the six DNP directors, including Plaintiff, were rotated to different units "[t]o give a new fresh start to DNP"; "[n]obody was being singled out." (Id. 63-71, 101-2.) Plaintiff describes this process as a "reshuffling." (Pl.'s 56.1 ¶ 13.)
In an October 1, 2007 meeting, Carbine informed Plaintiff that, due to the reassignment, he would be removed from his position as Director of TPT/TLS and would become DNP's Director of Special Projects. (Rizvi Decl. Ex. H.) Later that day, Plaintiff reacted to this news in an email to Carbine, stating:
(Id.)
As part of his reassignment to Director of Special Projects, Plaintiff "lost [his] supervisory role." (Cayemittes Tr. 53; Carbine 96-97.)
On October 1, 2007, Carbine told Plaintiff that his "removal from TPT/TLS would continue as planned" but would be "postponed another few weeks." (Id. p. 14.) Plaintiff responded by telling Carbine that he intended to "complain about his removal up the City hierarchy." (Id. p. 16.)
On October 11, 2007, Plaintiff met with Carbine and David Schmid, DNP's Director of Operations, (Cayemittes Tr. 56), to discuss Plaintiffs new role as Director of Special Projects. (Pl.'s Ex. O D002793.) Schmid documented the meeting as follows:
(Pl. Ex. O. at D002793.) This conversation is consistent with other extensive record evidence indicating that, following Plaintiffs reassignment to the Director of Special Projects position, Carbine and others
Despite these exchanges, Plaintiff maintains that he "in fact was not given any choice" as to DNP's late-2007 reorganization. (Pl.'s 56.1 p. 19.)
On December 3, 2007, Plaintiff sent a lengthy email to HPD Commissioner Shaun Donovan ("Donovan Email") regarding his reassignment. The Donovan Email stated in part:
(Rizvi Decl. Ex. N.) On January 13, 2008, Donovan responded, stating that he had "discussed this with a number of people and believe[d] it [wa]s something [Plaintiff] need[ed] to resolve directly with [his] supervisor." (Id.)
On October 24, 2007, Carbine met with Plaintiff to "continue a discussion about transition to his new responsibilities" as Director of Special Projects. (Pl. Ex. P D002632.) As Carbine recorded in an
Following another meeting with Plaintiff on October 30, 2007, Carbine emailed Schmid to report that:
(Pl. Ex. P D002628.)
The record reflects that Plaintiff was indeed tasked with several projects after he was reassigned. The following summarizes the evidence relating to these projects, including Carbine's and Plaintiffs views as to Plaintiffs performance of them:
Plaintiff and Carbine disagree as to Plaintiff's performance on the Loan Project. Plaintiff's submissions detail extensively the work he did on the Project, discussing "key" "accomplishment[s]" and "milestone[s]," and attaching "samplings" of work he did in connection with it. (Pl.'s 56.1 pp. 25-28.) Plaintiff claims that Carbine told him he was "happy with the direction of the [P]roject" and that Plaintiff was "doing fine" with it, but then "began to ignore [P]laintiff's updates about the ... project." (Id. pp. 24, 26, 28.) Carbine, however, believed that Plaintiff "didn't
Carbine testified that Plaintiff did not "embrace[]" the Green Project. (Carbine Tr. 108.) Plaintiff maintains that the Green Project was a "`concept project' that was yet to be defined" and that Carbine accordingly directed Plaintiff to "take a relaxed, wait and see approach where he, Carbine, would be guiding next steps." (Pl. 56.1 ¶ 37, pp. 22, 40.) Nonetheless, Plaintiff testified that he "start[ed] reading things" and "going online asking people" about similar initiatives. (Cayemittes Tr. 83-84; Pl.'s Ex. J.)
On the whole, Carbine testified that Plaintiff was "not cooperative" following his reassignment and demonstrated a "resistance to ... what needed to be done in that role." (Carbine Tr. 108-109.) He described Plaintiff as "hostile" and made general reference to "some e-mails [that] got sent that were sarcastic about assignments." (Id. 109.) He testified that Plaintiff had ultimately "shown that [he] didn't want the job" by way of the "things that [he] said" and "how [he] took on the responsibilities or didn't take on the responsibilities." (Id. 204.)
Sometime in late 2007, Anne-Marie Hendrickson, the Associate Commissioner
Around this time, Hendrickson spoke to Carbine and learned that Plaintiff was a "potential [person] that would be available for [Taylor]" at DAMP. (Id. 11.) Carbine, who up until this point had been "actively looking for something for [Plaintiff]" responded that he thought Plaintiff would be a good fit for the DAMP position, (Carbine Tr. 193; Hendrickson Tr. 20), although Plaintiff claims, for reasons unclear, that "Carbine had known tha[t][he] would not be interested in working at DAMP." (Pl.'s 56.1 p. 32.)
In February 2008, Carbine told Plaintiff to reach out to Hendrickson. Carbine testified that, although the DAMP job was not in development as Plaintiff had hoped,
After speaking with Plaintiff, Hendrickson continued to believe he would be a good fit at DAMP because he was "good at follow up, ... [and] had a pretty good real estate, and a pretty good finance background." (Hendrickson Tr. 28.) The open position there, Senior Project Manager, was, according to Hendrickson "an extremely important position" that "involve[d] getting buildings out of the city ownership" and "getting [them] rehabbed." (Id. 59.) In her view, the position was "just as important [a] position as director." (Id.) Although Hendrickson agreed that Plaintiff would not be reporting directly to her as Assistant Commissioner but rather to Taylor, she believed a transfer from Plaintiffs current position as Director of Special Projects would be a "lateral" move. (Id. 61.)
Plaintiff "doubts seriously" that his position in DNP and the open DAMP position "are even remotely similar" in part because "the position reports to a director of operations, and was not administrative, managerial, supervisory or prestigious, highly desirable position like the TPT/TLS position." (Pl.'s 56.1 ¶ 68, p. 63.)
Plaintiff claims Hendrickson told him he should transfer to DAMP because "they just d[id]n't want [him]" at DNP. (Pl.'s 56.1 p. 38.)
On February 14, 2008, Donovan wrote Plaintiff a letter (cc'ing Carbine and others) in which he congratulated Plaintiff for receiving a commendation from a member of the public. (Rizvi Decl. Ex. O.) The letter noted that Donovan had received "several" complimentary letters about Plaintiff from members of the public and thanked Plaintiff for "taking customer service to another level." (Id.; Pl.'s 56.1 p. 8.)
When Plaintiff "wrote back to Donovan asking him about the other commendations that he mentioned in his letter," Carbine allegedly "told plaintiff that `someone could easily interpret your letter to Shaun like you were harassing people.' `What exactly are you trying to do?'" (Pl.'s 56.1 ¶ 52.) The same day, Plaintiff claims that:
(Id. pp. 30-31.)
On March 10, 2008, Plaintiff sent a lengthy email to the Deputy Mayor for Economic Development, Robert C. Lieber ("Lieber Email"). (Rizvi Decl. Ex. P.) In the Lieber Email, Plaintiff again complained that his transfer from his TPT/TLS position was, inter alia, "retaliatory, to damage [Plaintiffs] career and reputation, and because of [his] race and national origin." (Id.) Plaintiff explains that he emailed Lieber because "[f]ollowing Donovan's January 13, 2008 response to [his] complaints about unlawful discrimination and retaliation, the next step up the corporate hierarchy was the deputy mayor, Donovan's direct supervisor." (Pl.'s 56.1 ¶ 54.) Plaintiff further testified that the reason he emailed Lieber was because he "was still complaining about being removed" from the TPT/TLS position and about being "assigned nothing of substance to further [his] career," so he "was going through the channels and then [he] had reached the deputy mayor." (Cayemittes Tr. 93.)
On March 27, 2008, HPD's internal Equal Employment Opportunity ("EEO") Officer Stanley Whing contacted Plaintiff regarding the Lieber Email and the two scheduled a meeting for April 1, 2008. (Pl.'s 56.1 p. 45.) When Plaintiff informed Carbine of his planned meeting with Whing, Carbine allegedly responded that "this complaining is not going to end well, Claudel." (Id.)
On April 4, 2008, Plaintiff and Taylor discussed his transferring to a position at DAMP. (Rizvi Decl. Ex. M.) That discussion confirmed for Plaintiff that he was "not interested in the DAMP position
Later that afternoon, Carbine called Plaintiff into his office and told him "he understood that [Plaintiff] had accepted a position in DAMP and that effective in two weeks [Plaintiff would] be leaving [Carbine's] division." (Rizvi Decl. Ex. M.) Plaintiff responded that "this was the first [he] heard of this" and described his earlier meeting with Taylor. (Id.) He and Carbine then discussed "choice versus not having one" and Carbine "said that he wanted [Plaintiff] to move to DAMP." (Id.) When Plaintiff "told him that [he] was not interested in the DAMP position," Carbine said, "Okay, and that he would talk to [Hendrickson]." (Id.)
On April 7, 2008, after speaking with Hendrickson, Carbine called Plaintiff into his office and "told [him he] had to go to DAMP." (Id.; Pl.'s 56.1 p. 46.) Plaintiff relayed the foregoing to Whing in an email he sent that afternoon, concluding with the following:
(Rizvi Decl. Ex. M.)
The following afternoon, Plaintiff sent another, longer email to Whing, elaborating on his employment situation. He explained:
(Id.)
On April 9, 2008, Deputy Commissioner of the Office of Preservation Services Luiz Aragon sent an email to Carbine noting that Plaintiff's DAMP transfer was put on hold. (Rizvi Decl. Ex. Q.)
On April 10, 2008, Plaintiff filed an internal complaint with the HPD Office of Equal Employment Opportunity ("EEO") against Carbine alleging discriminatory treatment on the basis of race, color, national origin and retaliation in opposition to Plaintiff's past and current EEO complaints (the "EEO Complaint"). (Rizvi Decl. Ex. T.)
Whing conducted an investigation into the EEO Complaint during which, he testified, he "interviewed enough people to give [him] a good sense of what was going on" and "got an understanding of the totality of the issues." (Whing Tr. 27-28.) On August 4, 2008, Whing issued a report to Donovan for final review. (Rizvi Decl. Ex. C.) The report concluded that Plaintiffs allegations were unsupported. (Id.) On August 18, 2008, Donovan approved
Following the EEO Complaint, Plaintiff continued work as DNP's Director of Special Projects. (Cayemittes Tr. 114.) As discussed above, during this time, Carbine lodged various criticisms of Plaintiffs performance on these projects — for instance, his early-2008 criticism of Plaintiffs work on the Loan Project (ultimately leading to Plaintiffs removal from that project), his May 2008 critique of Plaintiffs work on the Budget Books Project and his June 2008 removal of Plaintiff from the Community Group Contracts Project. Plaintiff also emphasizes that, during this time, Carbine reprimanded Plaintiff for "working behind locked doors." (Pl. Ex. P D003474.)
Plaintiff was formally transferred to DAMP on September 15, 2008. (Pl. Tr. 114; Rizvi Decl. Ex. Y.) Although his salary remained the same, Plaintiff was immensely dissatisfied with his work there. (Cayemittes Tr. 81, 145; Pl.'s 56.1 pp. 61-68.) He testified that, on the "second or third day" after his arrival, Taylor told him she had been "avoiding" him because DAMP did not "have any work" for him. (Cayemittes Tr. 122.) Indeed, Plaintiff states that he "spent several months — easily more than 90 percent of his time — in DAMP with nothing to do" and had "no work to do from September 2008 to November 2008." (Pl.'s 56.1 pp. 66-67.) Plaintiff states that at DAMP he was "ignored and isolated." (Id. p. 64.) Taylor allegedly "avoid[ed] him because she did not want to talk about work" and Plaintiff "had to rely on secretaries to find out what was going on." (Id.) "Attempts to find out where he stood were fruitless," Plaintiff claims, because "Hendrickson was never available." (Id.) This was "part of a coordinated effort on the part of DAMP officials... to frustrate [him] and continue to destroy his career." (Id.)
In November 2008, Taylor's last day in DAMP,
Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission against HPD ("EEOC Charge") on November 24, 2008. (Rizvi
Plaintiff filed a pro se complaint in this Court on November 10, 2010, which he amended shortly thereafter on January 10, 2011. (Dkts. 1, 5.) His Amended Complaint asserts claims of discrimination and retaliation against HPD, Carbine and other of Plaintiff's supervisors pursuant to Title VII. Plaintiff also asserted a claim for Intentional Infliction of Emotional Distress. (Dkt. 5.)
On November 10, 2011, 2011 WL 7178736, Magistrate Judge Theodore H. Katz issued a Report and Recommendation ("Report") recommending that U.S. District Judge George B. Daniels, to whom this case was previously assigned, dismiss Plaintiff's Amended Complaint in large part. (Dkt. 20.) Specifically, the Report recommended the Court dismiss all Plaintiffs claims "except for his claim [against HPD] that in September 2008 he was transferred to the DAMP Division in retaliation for his 2008 EEO [C]omplaint." (Report 16.) In an Order dated February 9, 2012, 2012 WL 406915 ("February 9 Order"), Judge Daniels adopted the Report in its entirety. (Dkt. 28.)
The Court's role, therefore, is to determine whether that remaining claim, broadly construed, survives summary judgment. On review of the summary judgment record, the Court concludes it does not.
"The court shall grant summary judgment 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." Fed.R.Civ.P. 56(a). "A fact is `material' for these purposes when it `might affect the outcome of the suit under the governing law,'" and "[a]n issue is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d Cir.2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "A court reviewing a motion for summary judgment must `construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.'" Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir.2008) (quoting Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.2003)).
In reviewing a motion for summary judgment involving a non-moving, pro se plaintiff, a court "liberally construe[s]" the materials submitted by the pro se litigant, "reading such submissions to raise the strongest arguments they suggest." Bertin v. United States, 478 F.3d 489, 491 (2d Cir.2007) (quotation marks omitted). A plaintiffs pro se status, however, does not relieve him from the usual requirements of summary judgment. Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003); Brown v. City of New York, No. 11 Civ. 6379(KBF), 2013 WL 4713561, at *3 (S.D.N.Y. Aug. 27, 2013) ("[E]ven pro se plaintiffs must offer some evidence that would defeat a motion for summary judgment.").
Title VII prohibits retaliation against an employee "because he has opposed any practice made an unlawful employment
Summa v. Hofstra Univ., 708 F.3d 115, 125 (2d Cir.2013) (internal citations and punctuation omitted).
The Court agrees with HPD that Plaintiff's retaliation claim falters at the prima facie stage.
HPD does not expressly contest that Plaintiff has satisfied the first two prongs of his prima facie case. Nor could it reasonably do so. Plaintiff's EEO Complaint, filed on April 10, 2008, clearly constitutes participation in a protected activity. Alston v. N.Y.C. Transit Auth., 14 F.Supp.2d 308, 311 (S.D.N.Y.1998) ("Plaintiff's filing and maintenance of her internal EEO complaint certainly put the NYCTA on notice that she was engaged in statutorily protected activity."). Plaintiff's December 3, 2007 Donovan Email and March 10, 2008 Lieber Email also constitute protected activities. Hubbard v. Total Communications, Inc., 347 Fed.Appx. 679, 681 (2d Cir.2009) ("[An] informal complaint of discrimination is enough to satisfy the protected activity requirement under Title VII."); Kotcher v. Rosa & Sullivan Appliance Ctr., 957 F.2d 59, 65 (2d Cir.1992) ("[A]n internal complaint to company management... is protected activity within the policies of Title VII."). There is likewise no issue as to whether HPD knew of these protected activities. Gordon v. N.Y. Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000) ("Neither [the Second Circuit] nor any other circuit has ever held that, to satisfy the knowledge requirement, anything more is necessary than general corporate knowledge that the plaintiff has engaged in a protected activity.").
HPD does dispute, however, that Plaintiff can establish the third and fourth elements of his prima facie case — i.e., that he
The requirement of a materially adverse employment action reflects the principle that "Title VII does not protect an employee from `all retaliation,' but only `retaliation that produces an injury or harm.'" Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 569 (2d Cir.2011) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). In Burlington Northern, the Supreme Court described a "material adverse action" as follows: "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." 548 U.S. at 68, 126 S.Ct. 2405. Still, "[a]ctions that are `trivial harms' — i.e., `those petty slights or minor annoyances that often take place at work and that all employees experience' — are not materially adverse." Tepperwien, 663 F.3d at 568 (quoting Burlington Northern, 548 U.S. at 68, 126 S.Ct. 2405). As the Second Circuit recently stated, in the summary judgment context, courts must be mindful that "material adversity is to be determined objectively, based on the reactions of a reasonable employee." Rivera v. Rochester Genesee Reg'l Transp. Auth., 702 F.3d 685, 698-99 (2d Cir.2012) (citations and punctuation omitted). It cautioned, however, that "context matters, as some actions may take on more or less significance depending on the context." Id. at 699.
Plaintiff's primary arguments are that "(1) his transfer from Director of [TPT/TLS] to Director of Special Projects on about November 9, 2007[and] (2) his transfer from DNP to little to no work and the ensuing confusion about what his title is in DAMP on September 15, 2008 ... would dissuade a reasonable worker from making or supporting a charge of discrimination." (Opp'n 31.)
As to the first argument, Judge Daniels already concluded that a retaliation claim premised on Plaintiffs reassignment to Director of Special Projects in late-2007 was timebarred. (February 9 Order 11.) In any event, the argument fails on the merits. Plaintiff was reassigned from the TPT/TLS position to the Special Projects position as part of a "rotation" or "reshuffling" involving five DNP directors. After that process, Plaintiff remained within DNP, reported to the same supervisor (Carbine) and apparently received the same salary, evidence that indicates that Plaintiff's reassignment was nothing more than an alteration of his job responsibilities. See Staff v. Pall Corp., 233 F.Supp.2d 516, 533 (S.D.N.Y.2002) (plaintiffs "transfer was but one part of a broad company reorganization which involved shifting tasks between different departments, and with that shift in tasks, a shift in the placement of certain employees. Indeed, [plaintiff] was not the only employee transferred from R & D."), aff'd, 76 Fed.Appx. 366 (2d Cir.2003).
It is true, of course, that retaliatory transfers are "not limited to pecuniary emoluments," and can arise from a "discriminatorily-motivated diminution of duties." Preda v. Nissho Iwai Am. Corp., 128 F.3d 789, 791 (2d Cir.1997) (citation omitted); see also Harris v. City of New York, No. 03 Civ. 6167(DLC), 2004 WL 2943101, at *4 (S.D.N.Y. Dec. 21, 2004) ("Lesser actions such as ... a diminution in the complexity and prestige of work assignments, and transfers may also be considered adverse."). But the only evidence
The Court, however, agrees with Plaintiff that a jury could find that his transfer from Director of Special Projects in DNP to his position at DAMP — first as Senior Project Manager, then as Senior Policy Analyst — was materially adverse. Upon his transfer to DAMP, Plaintiff no longer reported directly to the Assistant Commissioner — Hendrickson, Carbine's counterpart. He instead reported to Taylor, who in turn reported to Hendrickson. It is fair to conclude from this evidence that Plaintiff's transfer to DAMP was not a "lateral" one as Hendrickson testified, but was, at least structurally, a demotion. A fact-finder could also reasonably conclude that, upon arriving at DAMP, Plaintiff experienced a rather rapid diminution in the complexity and prestige of his work assignments. Despite the "lofty"-sounding position described to him, Plaintiff would presumably testify that he was "never given any work in DAMP that came close" to that description. Indeed, crediting Plaintiff's statements that he "spent several months — easily more than 90 percent of his time — in DAMP with nothing to do," had "no work to do from September 2008 to November 2008," and now reports to "very young people," it appears that the realities of the DAMP position were objectively inferior to the Director of Special Projects position. Accordingly, the Court concludes that Plaintiff's transfer to DAMP satisfies the third prong of his prima facie case.
The Court agrees with HPD, however, that Plaintiff is unable to satisfy the final prong of his prima facie case — i.e., that there exists a causal connection between his various protected activities and his transfer to DAMP in September 2008.
It is well-settled that an adverse employment action cannot serve as the basis for a retaliation claim if the action was set in motion before a plaintiff engaged in protected activity. See Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir.2001) (no causation where "progressive discipline" began prior to plaintiffs filing of EEOC charges); Tomasino v. St. John's Univ., 476 Fed.Appx. 923, 925 (2d Cir.2012) ("[B]ecause the record is replete with undisputed evidence that Defendant imposed progressive discipline against Tomasino well before September, an inference of discrimination will not arise based solely on the proximity between her complaint and termination."). "If an employer's conduct before and after an employee complaint is consistent, the post-complaint conduct is not retaliatory." Wright v. N.Y.C. Off-Track Betting Corp., No. 05 Civ. 9790(WHP), 2008 WL 762196, at *5 (S.D.N.Y. Mar. 24, 2008); Lessambo v. PricewaterhouseCoopers, L.P., No. 08 Civ. 6272(WHP), 2010 WL 3958787, at *13 (S.D.N.Y. Sept. 27, 2010) (no causal connection where poor performance reviews were issued before and after protected activity), aff'd, 451 Fed.Appx. 57 (2d Cir. 2011); Webb v. Niagara Cnty., No. 11-cv-192S, 2012 WL 5499647, at *5 (W.D.N.Y. Nov. 12, 2012) ("[Plaintiff] offers no evidence suggesting that the denials [of overtime] which occurred after her complaint were in any way different from the pre-complaint denials, or that they were somehow related to the Division of Human Rights complaint. Without evidence of such a causal connection, this claim must also fail.").
It is undisputed that HPD's efforts to secure Plaintiff a position elsewhere within the agency were part of an extended process that began no later than October 2007, when Plaintiff voiced frustration about his reassignment within DNP, and ended nearly a year later when Plaintiff was ultimately transferred to DAMP. During this process, numerous other jobs were discussed — the DAMP position, of course, but also the Queens Borough Office position, the East Brooklyn Office for Neighborhood Services position, as well as potential opportunities in Preservation Finance, New Construction, Management and Disposition and Development — some of which materialized into concrete offers that Plaintiff rejected.
Plaintiff has admitted that this process was continuing and predated his protected activity when he emailed Whing in April 2008, stating "for several months now, Bill Carbine has been trying to secure an appropriate position for me." That admission undercuts the argument Plaintiff made to Whing the day before, and makes again here, that Carbine's efforts to transfer Plaintiff were "punishment [for Plaintiff's] recent letter to Deputy Mayor Lieber." Logically, then, those efforts could not have been "punishment" for the EEO Complaint filed a month later either.
In any event, the Court agrees with HPD that "[e]ven assuming that the adverse action plaintiff complains of did not have its genesis before his March 10, 2008 [Lieber Email] and April 10, 2008 EEO Complaint, [P]laintiff still fails to establish temporal proximity between those activities and the transfer to DAMP on September 15, 2008." (Mem. 8.) "[D]istrict courts within the Second Circuit have consistently held that the passage of two to three months between the protected activity and the adverse employment action does not allow for an inference of causation." See Murray v. Visiting Nurse Servs., 528 F.Supp.2d 257, 275 (S.D.N.Y.2007) (collecting cases); see also Adams v. Ellis, No. 09 Civ. 1329(PKC), 2012 WL 693568, at *16 (S.D.N.Y. Mar. 2, 2012) ("[C]ase law in the Second Circuit and in this district often finds a limit at two or three months and almost universally disapproves longer time periods.").
The shortest temporal distance between Plaintiff's most recent protected activity (the April 2008 EEO Complaint) and his ultimate transfer to DAMP (in September 2008) is over five months. That is too long a time period as a matter of law and establishes an independent basis on which to reject Plaintiffs argument that a causal connection exists. McGinnis v. N.Y. Univ. Med. Ctr., No. 09 Civ. 6182(RMB), 2012 WL 5512173, at *4 (S.D.N.Y. Nov. 14, 2012) ("Because Plaintiff's basis for her claim of retaliation is the timing between the filing of her complaint on July 9, 2009 and her termination on February 1, 2010 and because she was subject to an extensive period of progressive discipline prior to the filing of her complaint, she has failed to make out a prima facie case of retaliation.") (internal quotation marks omitted).
It may be true, as Defendant asserts, that Plaintiff's transfer was the result of its legitimate efforts to "secure an appropriate position for [Plaintiff]" outside of DNP. It may also be true, as Plaintiff asserts, that Carbine and others "just d[id]n't want [him]" at DNP and "forced" him to transfer. Those two truths would not be mutually exclusive. See Burlington Northern, 548 U.S. at 68, 126 S.Ct. 2405 ("antipathy" is not actionable). Even if this is assumed, however, there has been no showing — by way of causal inference or otherwise — that Defendant's decision to transfer Plaintiff to DAMP was retaliatory such that there exists a factual issue for a jury to resolve.
Plaintiffs retaliation claim accordingly fails at the prima facie stage.
For the reasons set forth above, HPD's motion for summary judgment is granted. The Clerk of Court is respectfully directed
SO ORDERED.
As Plaintiff testified, "[t]he tax lien sale is basically where we sell the lien against the property usually for nonpayment of taxes and then whoever the lien holder [is] can foreclose and ultimately take away the property." (Cayemittes Tr. 46.)
As to Carbine's "decree not to allow [Plaintiff] half-hour lunches," "[w]hether a change in schedule constitutes an adverse employment action depends on context." Mugavero v. Arms Acres, Inc., No. 03 Civ. 05724(PGG), 2009 WL 890063, at *10 (S.D.N.Y. Mar. 31, 2009) (citing Burlington Northern, 548 U.S. at 69, 126 S.Ct. 2405). Plaintiff states, without elaboration, that he required half-hour lunches, which would allow him to leave work early, due to his "long commute and baby-sitting needs." This evidence alone is insufficient to create a factual issue as to whether he suffered a material adverse action. He provides little context for these statements, for instance any indication that his schedule actually changed. Further, his statement that, when he protested, "Carbine responded that he did not care what [P]laintiff did" appears to indicate that Plaintiff was not actually adversely affected, even if Carbine refused to officially sign off on Plaintiff's "half-hour arrangement." Accordingly, the Court finds that, without more, a jury could not find material adversity as to this assertion. See Witkowich v. Holder, No. 05 Civ. 7756(GBD), 2010 WL 1328364, at *3 (S.D.N.Y. Mar. 31, 2010) ("Plaintiff has not proffered any evidence to show that this change in his official hours adversely affected him."), aff'd sub nom. Witkowich v. U.S. Marshals Serv., 424 Fed.Appx. 20 (2d Cir.2011); Gelin v. Geithner, No. 06-cv-10176 (KMK), 2009 WL 804144, at *21 (S.D.N.Y. Mar. 26, 2009) ("An employee's decision to report discriminatory behavior simply does not immunize him from those petty slights or minor annoyances that often take place at work and that all employees experience. This is particularly true where, as here, Plaintiff has offered no evidence showing that he suffered any harm or injury as a result of these actions.") (citations and internal punctuation omitted), aff'd, 376 Fed.Appx. 127 (2d Cir. 2010).
Finally, the Court declines to hold that Carbine's alleged comment in late-March 2008 that Plaintiff's "complaining is not going to end well," which Carbine purportedly made upon learning of Plaintiff's planned meeting with Whing, constitutes a materially adverse action. As noted above, "context matters," Rivera, 702 F.3d at 699, and "[t]he Second Circuit has instructed that while the test [for material adversity] is an objective [one], it remains relevant whether the plaintiff himself was deterred from complaining." Jantz v. Emblem Health, No. 10 Civ. 6076(PKC), 2012 WL 370297, at *15 (S.D.N.Y. Feb. 6, 2012) (citing Tepperwien, 663 F.3d at 572). The record reflects that Plaintiff sent multiple email complaints to Whing only days after Carbine's alleged comment and filed his EEO Complaint shortly thereafter on April 10, 2008. Therefore, to the extent Carbine's somewhat ambiguous comment could be objectively viewed as threatening, Plaintiff was clearly undettered by it. See Patterson v. Xerox Corp., No. 10-cv-6097, 2012 WL 2155278, at *7 (W.D.N.Y. June 13, 2012) ("Even assuming that [plaintiff's supervisor's] motivation was retaliatory and considering this warning in connection with [the supervisor's] other conduct, this action does not rise to the level of materiality that would implicate the antiretaliation provisions of Title VII ... Notably, it did not dissuade plaintiff from making several subsequent complaints regarding Peterson to the internal ethics helpline and the EEOC."); Smith v. NYC Health & Hosp. Corp., No. 10-CV-714 (RRM)(LB), 2013 WL 3013641, at *6 (E.D.N.Y. June 18, 2013) (intimidating incident "occurred prior to plaintiff's filing her EEOC charge and clearly did not dissuade her from making her charge of discrimination"); Bundschuh v. Inn on the Lake Hudson Hotels, LLC, 914 F.Supp.2d 395, 407 (W.D.N.Y.2012) (no material adversity where "Plaintiff attest[ed] that [supervisor's] actions did not dissuade her from making a number of subsequent complaints"). Nor does Carbine's vague and isolated statement suffice to "show retaliatory animus `without resort to inference.'" Redd v. N.Y.S Div. of Parole, 923 F.Supp.2d 371, 386 (E.D.N.Y.2012). The Court therefore cannot conclude that this statement, made over five months before Plaintiff's transfer to DAMP and almost as long after that transfer was initially contemplated, constitutes direct evidence of retaliatory intent or otherwise has any material bearing on the causation analysis discussed below. See Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1183 (2d Cir.1992) ("Direct evidence" is "evidence tending to show, without resort to inference, the existence of a fact in question."); see also Cardoso v. Robert Bosch Corp., 427 F.3d 429, 432 (7th Cir.2005) ("Direct evidence is essentially an outright admission that a challenged action was undertaken for one of the forbidden reasons covered in Title VII.").
