VALERIE CAPRONI, District Judge.
Plaintiff Bruce Borzon brings this action against Defendants New York City Health and Hospitals Corporation ("HHC") and Tracy Green for employment discrimination and retaliation, pursuant to 42 U.S.C. § 2000e et seq., § 2000e-2(a)(1), and § 1981; the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. L. § 290 et seq.; and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. See Complaint ("Compl.") [Dkt. 1]. Defendants moved for summary judgment on all claims. See Notice of Motion ("Notice of Mot.") [Dkt. 26]. For the following reasons, Defendants' motion is GRANTED.
Plaintiff was formerly Senior Associate Director of Patient Financial Services at Metropolitan Hospital Center ("MHC"), one of many health care facilities in New York City administered by HHC. P.S. ¶ 1; Answer [Dkt. 13] ¶ 11. Borzon filed a charge of discrimination with the Equal Employment Opportunity Commission on July 17, 2015, and received a Notice of Right to Sue. P.S. ¶¶ 5-7. This lawsuit followed. P.S. ¶ 8; Compl. Plaintiff claims that he was terminated from MHC because he is white as well as in retaliation for filing an internal Equal Employment Opportunity ("EEO") Complaint. P.S. ¶¶ 3, 124-25, 128. He bases his claims on, inter alia, his disagreement with management over the quality of his performance; an allegedly overheard conversation among coworkers; and the fact that that his supervisor told him that their higher level supervisor did not want Borzon at MHC. See P.S. ¶¶ 126-27.
In the spring of 2014, David Guzman, MHC's Deputy Chief Financial Officer, began a search for a Senior Associate Director in the Patient Financial Services ("PFS") Department, as the incumbent Inpatient Accounts Director was transitioning to a different position. P.S. ¶¶ 9-10, 15. Guzman's plan was to hire someone to lead both the Inpatient and Oupatient sections of MHC's Finance Department. P.S. ¶ 12. After determining that the internal candidates were not qualified, MHC engaged a headhunter, and Guzman assembled a panel of Senior Finance Directors to interview candidates. P.S. ¶¶ 19-20; D.R.S. ¶¶ 223-24, 228. Two individuals were interviewed, Plaintiff and another man, both of whom are white. P.S. ¶¶ 23, 26. The panel recommended that the other candidate be hired because they believed him to be a better fit for a joint inpatient and outpatient role. P.S. ¶¶ 24-25. Guzman decided not to pursue the recommended candidate, however, because his salary demand was too high. P.S. ¶¶ 27. Guzman offered the job to Plaintiff, who accepted. P.S. ¶¶ 28-29. Plaintiff reported to Guzman, who, in turn, reported to Chief Financial Officer ("CFO") Tracy Green; Borzon also reported to and worked directly with Green. P.S. ¶¶ 31, 47. Ms. Green, who self-identifies as African-American and Hispanic, was hired two weeks after Plaintiff was hired. P.S. ¶¶ 45-46; D.R.S. ¶¶ 236-37.
Borzon's employment began in May 2014. P.S. ¶¶ 33-34; D.R.S. ¶ 232. He met with Guzman on his first day and received information about each area of the Finance Department for which he would be responsible. P.S. ¶ 35. Plaintiff's first major assignments included reorganizing and merging the Inpatient and Outpatient Departments and improving employee morale. P.S. ¶ 37; D.R.S. ¶¶ 285-86. Borzon was responsible for revenue management, and he understood that it was his responsibility to maximize hospital revenue. P.S. ¶¶ 38-39. His role in revenue management included managing accounts receivable and minimizing the aging of accounts receivable ("A/R Days"). P.S. ¶¶ 40-42.
Borzon's performance was problematic from early in his tenure. After just a few months, Green had identified significant performance deficiencies and had noted that revenue and other relevant metrics were lower than expected. Excerpts of Deposition of Tracy Green, June 30, 2017 ("Green Depo.") [Dkt. 29-43] at 44:12-20; P.S. ¶¶ 50, 53-54. In an effort to improve Borzon's performance, Green made arrangements for Plaintiff to meet with his counterparts at other HHC hospitals, believing that his weak performance might have been due to a lack of understanding of HHC's billing systems; she hoped that meeting his counterparts would improve his performance. P.S. ¶¶ 51-52. In October or November 2014, Guzman told Plaintiff that Green was unhappy with his performance and that he should begin to look for another job.
In late 2014,
On or around January 8, 2015, Plaintiff received his first performance evaluation from Guzman and Green, covering the period from May 5, 2014 to November 4, 2014, and then met with them to discuss the evaluation. P.S. ¶¶ 63-64, 66; D.R.S. ¶¶ 293-94; January Performance Evaluation ("Jan. Eval.") [Dkt. 29-10]. Plaintiff was rated "Needs Improvement" in 10 categories and "Fully Competent" in 13 categories; each rating was accompanied by a comment providing a basis for the rating. P.S. ¶¶ 67-68; D.R.S. ¶ 295; Jan. Eval. Plaintiff received an overall rating of "Needs Improvement," and the Evaluation included "Suggestions & Plans for Improvement."
On or around January 9, 2015, shortly after Plaintiff received his first evaluation, he met with MHC's EEO Officer, Luz Nazario. P.S. ¶ 73. Borzon complained to Nazario that he was not wanted at MHC, that he was being set up by his peers, and that there was a racial issue. P.S. ¶ 74.
On January 13, 2015, Plaintiff submitted a rebuttal to his evaluation and detailed what he believed were his accomplishments during the rating period. P.S. ¶ 75; First Evaluation Rebuttal, January 13, 2015 ("First Eval. Reb.") [Dkt. 29-14]. On January 14, 2015, after having submitted his rebuttal, Plaintiff emailed an internal EEO Complaint to Nazario, which reiterated items that he had included in his evaluation rebuttal. P.S. ¶ 76-77; D.R.S. ¶¶ 252-53; First Eval. Reb.; Internal EEO Complaint, January 14, 2015 ("EEO Compl.") [Dkt. 29-15]. The EEO Complaint also asserted that Brown-Gross had told him in September 2014
Brown-Gross testified that she does not remember saying to Plaintiff any of the things he attributed to her in his EEO Complaint. P.S. ¶ 81. Davila denied that the conversation ever occurred, and Alexander reported no memory of such a conversation.
On or about January 29, 2015, Plaintiff met with Guzman and Green and was given a Performance Evaluation Action Plan for Improvement, which they reviewed with him. P.S. ¶¶ 89-90; Performance Evaluation Action Plan for Improvement, January 29, 2015 ("PEAP") [Dkt. 29-19]. The PEAP outlined eight areas and 21 steps for improvement. P.S. ¶ 92; PEAP. Plaintiff did not ask any questions during the meeting, and his salary and responsibilities did not change after the meeting.
Shortly after Plaintiff was put on a PEAP, Green learned that Borzon had lodged an EEO Complaint.
On March 4, 2015, Plaintiff received a second evaluation from Guzman and Green, which covered the period of November 5, 2014, to February 5, 2015. P.S. ¶¶ 97-98; March Performance Evaluation ("March. Eval.") [Dkt. 29-20]. Plaintiff was rated "Needs Improvement" in nine categories and "Fully Competent" in 15; his overall rating remained as "Needs Improvement." P.S. ¶¶ 99-100; March Eval. Some of the deficiencies identified in the first evaluation persisted into the second evaluation. P.S. ¶ 101. The second evaluation also noted that Plaintiff had received the PEAP on or around January 29, 2015, had been receptive to it, and had accomplished some of the deliverables outlined in the Plan. P.S. ¶ 102.
Green and Guzman met in March 2015 to discuss Plaintiff's performance, and both thought that it continued to be substandard. P.S. ¶¶ 103-04. Guzman and Green both believed that Plaintiff's removal from his position in the Finance Department was warranted.
Before Plaintiff's interview for the new position, Green spoke to Alexander regarding Plaintiff's performance; Green reported that Plaintiff's performance had been poor, that he was unable to meet the needs of the Finance Department, and that MHC should look for other opportunities for him.
Plaintiff was terminated on April 15, 2015. P.S. ¶¶ 115-16. On April 21, 2015, Plaintiff sought review of his termination. P.S. ¶¶ 118. Guzman and Green, who first learned that Plaintiff had been terminated after the decision had been made, provided Rajkumar, who reviewed the termination, with information about Plaintiff's performance. P.S. ¶¶ 117, 119-20; D.R.S. ¶ 309. On May 11, 2015, Rajkumar affirmed the decision to terminate Plaintiff. P.S. ¶ 121. Approximately six months later, Lynette Stover was hired as the new Senior Associate Director of Patient Financial Services. P.S. ¶¶ 122-23. Stover, who presents as African-American, formerly worked with Green at a different hospital and had been informed by Green of the job opening.
Summary judgment is appropriate when "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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)) (internal quotation marks omitted). To defeat summary judgment, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006) (citation and internal quotation marks omitted). Courts "construe the facts in the light most favorable to the nonmoving party . . . and resolve all ambiguities and draw all reasonable inferences against the movant." Delaney v. Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir. 2014) (per curiam) (quoting Aulicino v. N.Y.C. Dep't of Homeless Servs., 580 F.3d 73, 79-80 (2d Cir. 2009)) (omission in original) (internal quotation marks omitted).
"At summary judgment in an employment discrimination case, a court should examine the record as a whole, just as a jury would, to determine whether a jury could reasonably find an invidious discriminatory purpose on the part of an employer." Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 102 (2d Cir. 2001) (citations omitted). "A motion for summary judgment may be defeated where `a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.'" Id. (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000)).
The fifth through eighth causes of action in the Complaint allege that Defendants discriminated against Borzon on account of his race when they terminated him. He argues this discrimination violated Title VII, § 1981, the NYSHRL, and the NYCHRL, respectively. See Compl. ¶¶ 58-76. Defendants move for summary judgment as to all four claims. See Notice of Mot.
Courts analyze employment discrimination claims brought under Title VII, § 1981, and the NYSHRL using "the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). . . ." Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012); see also Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). "Under McDonnell Douglas, a plaintiff bears the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination; it is then the defendant's burden to proffer a legitimate non-discriminatory reason for its actions; the final and ultimate burden is on the plaintiff to establish that the defendant's reason is in fact pretext for unlawful discrimination." Abrams v. Dep't of Pub. Safety, 764 F.3d 244, 251 (2d Cir. 2014) (citation omitted); see also Littlejohn v. City of New York, 795 F.3d 297, 307-08 (2d Cir. 2015) (citations omitted).
Because NYCHRL claims are construed more liberally than their federal and state counterparts, "[c]ourts must analyze [these] claims separately and independently from any federal and state law claims. . . ." Ya-Chen Chen v. City Univ. of New York, 805 F.3d 59, 75 (2d Cir. 2015) (citations omitted). "[O]n summary judgment, the employer may present evidence of its legitimate, non-discriminatory motives to show the conduct was not caused by discrimination, but it is entitled to summary judgment on this basis only if the record establishes as a matter of law that discrimination played no role in its actions." Philip v. Gtech Corp., No. 14 CIV. 9261 (PAE), 2016 WL 3959729, at *10 (S.D.N.Y. July 20, 2016) (quoting Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 110 n.8 (2d Cir. 2013)) (internal quotation marks and alterations omitted). "To prevail on a summary judgment motion under the NYCHRL, the employer is required to meet its burden of showing that, based on the evidence before the court and drawing all reasonable inferences in [plaintiff's] favor, no jury could find that the [defendant] treated [the plaintiff] `less well' than other employees at least in part because of [his or] her race." Id. (quoting Simmons v. Akin Gump Strauss Hauer & Feld, LLP, 508 Fed. App'x 10, 13 (2d Cir. 2013)) (internal quotation marks omitted).
Additionally, "[i]t is well established that a plaintiff cannot prevail on a Section 1981 claim against a municipality (or municipal agency . . . ) unless the alleged violation was caused by a custom or policy within the meaning of Monell [v. N.Y.C. Dep't of Soc. Servs., 436 U.S. 658 (1978)] and subsequent cases." Nieblas-Love v. New York City Hous. Auth., 165 F.Supp.3d 51, 75 (S.D.N.Y. 2016) (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735-36 (1989)) (internal quotation marks omitted). "Thus, to recover from [a municipal agency] pursuant to Section 1981, a [p]laintiff must show: (1) actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an official policy of the municipality caused the constitutional injury." Id. (quoting Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008)) (internal quotation marks omitted). And when a municipal employee's supervisor is included as a defendant, a plaintiff must show that the supervisor was a "final policy maker[] such that [her] actions can result in municipal liability for [the agency]." Addo v. New York Health & Hosps. Corp., No. 15-CV-8103 (RA), 2017 WL 4857593, at *10 (S.D.N.Y. Oct. 25, 2017) (citation omitted).
A plaintiff establishes a prima facie case "if he or she introduces evidence that raises a reasonable inference that the action taken by the employer was based on an impermissible factor. [The plaintiff] must show: (1) that he belonged to a protected class; (2) that he was qualified for the position he held; (3) that he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent." Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008) (internal quotation marks and citations omitted) (citing Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004)). The plaintiff's burden of proof at this first step is minimal or de minimis and not onerous. See Littlejohn, 795 F.3d at 311 (citations omitted); Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005) (citation omitted).
Because Defendants have conceded the first two elements of a prima facie case, the parties dispute only the final two prongs of this test: whether Borzon suffered an adverse employment action and whether the record raises an inference of discrimination. See Defs.' Mem. at 7.
"To qualify as an adverse employment action, the employer's action toward the plaintiff must be `materially adverse' with respect to `the terms and conditions of employment.'" Davis v. N.Y.C. Dep't of Educ., 804 F.3d 231, 235 (2d Cir. 2015) (per curiam) (quoting Sanders v. N.Y.C. Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004)). The action must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. (quoting Sanders, 361 F.3d at 755) (internal quotation marks omitted); see also Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir. 2006) (citation omitted). Additionally, "a plaintiff must set forth objective proof that the alleged action was materially adverse." Potash v. Florida Union Free Sch. Dist., 972 F.Supp.2d 557, 584 (S.D.N.Y. 2013) (citing Beyer v. Cty. of Nassau, 524 F.3d 160, 164 (2d Cir. 2008)) (emphasis omitted).
Although Defendants concede that Plaintiff's termination qualifies as an adverse employment action, Defs.' Mem. at 7, the parties dispute whether Plaintiff's formal evaluations and PEAP also constitute adverse employment actions. See Defs.' Mem. at 5-6; Opp. at 20-21; Reply at 2.
The claims of discrimination in Plaintiff's Complaint are premised entirely on his termination and not on his evaluations or PEAP.
But even if the evaluations and PEAP had been timely raised in the Complaint as adverse employment actions, the law quite clearly forecloses this argument. "Negative evaluations can be adverse employment actions only if they give rise to material adverse changes in work conditions." Kpaka v. City Univ. of New York, No. 14-CV-6021 (RA), 2016 WL 4154891, at *7 (S.D.N.Y. Aug. 2, 2016) (quoting Hawana v. City of New York, 230 F.Supp.2d 518, 528 (S.D.N.Y. 2002)) (internal quotation marks omitted), aff'd, 708 F. App'x 703 (2d Cir. 2017). Put differently, a negative performance review is not itself an adverse employment action,
As to the final prong of a prima facie case, a plaintiff must "introduce[] evidence that raises a reasonable inference that the action taken by the employer was based on an impermissible factor." Holcomb, 521 F.3d at 138. This factor is flexible and can be satisfied in different ways depending on the factual scenario. Saji v. Nassau Univ. Med. Ctr., 724 F. App'x 11, 17 (2d Cir. 2018) (quoting Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996)). "An inference of discrimination can arise from circumstances including, but not limited to, `the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the [adverse action].'" Littlejohn, 795 F.3d at 312 (quoting Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009)). "In addition, an inference of discrimination also arises when an employer replaces a terminated or demoted employee with an individual outside the employee's protected class." Franchino v. Terence Cardinal Cook Health Care Ctr., Inc., 692 F. App'x 39, 41-42 (2d Cir. 2017) (quoting Littlejohn, 795 F.3d at 312-13) (internal quotation marks omitted). In fact, replacing a plaintiff with "someone outside the protected class will ordinarily suffice for the required inference of discrimination at the initial prima facie stage of the . . . analysis, including at the pleading stage." Littlejohn, 795 F.3d at 313 (citation omitted).
Borzon believes a reasonable inference of discrimination can be drawn from the fact that he was replaced by an African-American woman. Opp. at 21. He also points to facts he primarily offers to support his pretext argument: Guzman said Green was out to get him; Plaintiff was the sole employee that Guzman rated poorly, placed on an PEAP, or recommended for termination;
Defendants contend that no inference of discrimination can be drawn to support Plaintiff's prima facie claim. They argue, inter alia, that Plaintiff did not compare his treatment to the treatment of any specific comparable employees; that Plaintiff's replacement by a person who is outside of his protected class was six months after his termination; that Plaintiff's poor performance was repeatedly documented by multiple evaluators; that Guzman hired Plaintiff in addition to recommending his removal; and that Green took steps to help Plaintiff find another position before his termination. Id. at 8-13. See also Reply at 2-5.
The Court finds that Plaintiff's subsequent replacement suffices at this stage of the analysis. Lynette Stover, an African-American woman, was hired as the new Senior Associate Director of Patient Financial Services about six months after Plaintiff's termination. P.S. ¶¶ 122-23. Defendants argue that "[r]eplacement at so long a temporal distance cannot suffice to show a basis of causation," but cite to language regarding causation in the context of a retaliation claim. Reply at 3 (citing Preuss v. Kolmar Labs., Inc., 970 F.Supp.2d 171, 198 (S.D.N.Y. 2013)). In the context of retaliation, the court in the cited case determined that a three-month period between a plaintiff's complaint and his discharge is generally too long, standing alone, to support an inference of retaliation. See id. at 197-99. Although the timing of hiring a replacement can support an inference of discrimination, Goonewardena v. New York Workers Comp. Bd., 258 F.Supp.3d 326, 337 (S.D.N.Y. 2017), the case law in this Circuit does not suggest that the two events—termination and replacement—must be close in time in order to support a prima facie claim for discrimination. Littlejohn's holding that replacement by a person outside one's protected class "will ordinarily suffice for the required inference of discrimination" itself includes no temporal limitation, which comports with the rule that the evidence necessary to satisfy a plaintiff's burden at step one is minimal. See 795 F.3d at 312-13 (citations omitted).
Accordingly, Plaintiff has established a prima facie case of discrimination.
Because Borzon has established a prima facie case, he is entitled to "a presumption that [Defendants] unlawfully discriminated" against him. James v. N.Y. Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000) (citation omitted). The burden of production then shifts to Defendants "to proffer a nondiscriminatory reason for [their] action." Id. (citations omitted); see also Littlejohn, 795 F.3d at 307 (citations omitted). "[O]nce the employer articulates a non-discriminatory reason for its actions," the presumption created by the prima facie case "drops out of the picture." James, 233 F.3d at 154 (citations and internal quotation marks omitted). "[T]he burden [then] shifts back to the plaintiff to prove that the employer's reason was in fact pretext for discrimination," Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 83 (2d Cir. 2015) (citation omitted), that is, to "demonstrate that the proffered reason was not the true reason (or in any event not the sole reason) for the employment decision," Littlejohn, 795 F.3d at 307 (citations omitted). That burden "merges with the plaintiff's ultimate burden of showing that the defendant intentionally discriminated against her." Id. at 307-08 (citations omitted). The question then becomes "whether the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited discrimination occurred." James, 233 F.3d at 156 (citing Reeves, 530 U.S. at 146).
Defendants assert that Borzon was fired because of his poor performance, which is illustrated by, inter alia, his mismanagement of MHC revenue, his submission of flawed work-product, and his inability to work well with his colleagues. Defs.' Mem. at 13-19; Reply at 5-8. Defendants emphasize that such problems were included in his formal evaluations and PEAP. Reply at 5-6, 8.
Plaintiff does not dispute that poor performance is a legitimate non-discriminatory reason for a termination. Instead, he chooses to dispute Defendants' assessment that he was a poor performer. To that end, the parties point to and argue about a range of financial performance metrics that they believe support their respective views of Plaintiff's job performance. See, e.g., P.S. ¶¶ 132-154; D.R.S. ¶¶ 312-329. Defendants have put forward various examples of alleged deficiencies in Plaintiff's performance that include, inter alia, poor Medicaid enrollment figures as compared to other HHC facilities, an inappropriate email Borzon sent to a colleague, late submission of a required metrics report and other tardy work product, general interpersonal issues with coworkers, and errors in his calculation of financial metrics; Plaintiff disputes the facts supporting a number of these alleged shortcomings. See, e.g., P.S. ¶¶ 157-211; D.R.S. ¶¶ 320, 327.
The Court broadly finds these disputes to be immaterial, as the central issue is whether Defendants had adequate, non-discriminatory grounds to terminate Plaintiff based on their view of his performance, and not whether, for example, a different manager might have believed that MHC's financial metrics indicated that Plaintiff was doing an adequate job. There is no dispute that Plaintiff's supervisors told him, via two formal performance reviews and a personalized PEAP, that his performance was unsatisfactory across a range of areas.
As previewed above, Plaintiff raises a variety of issues that he believes are evidence of pretext. Plaintiff relies primarily on his conversation with Guzman in which Guzman allegedly told him that Green was out to get him and wanted to fire him. Opp. at 22. He also interprets MHC's financial metrics to indicate that he performed well, and he asserts that some of the performance issues Defendants have raised were not included in his performance evaluations, essentially implying that they were fabricated to justify his firing. Id. He contends as well that there are inconsistencies in Green's and Guzman's accounts of his termination, arguing that Guzman stated that he and Green thought Plaintiff should be terminated, while Green testified that she did not play any role in Plaintiff's termination. Id. at 22-23. Lastly, Borzon asserts that his EEO Complaint was mishandled because the EEO Officer failed to interview Brown-Gross, did not consult with in-house counsel, did not preserve her notes, and did not prepare a summary of her findings. Id. at 23.
In response, Defendants contend that Plaintiff has offered no admissible evidence that Defendants' explanations are pretextual and that the actual motivation for his removal was discriminatory. They dispute that the performance issues they have identified were not raised during Plaintiff's evaluations and in his PEAP, and in any event, argue that Plaintiff has made no effort to connect the alleged failure to provide feedback to Plaintiff's race. Reply at 8. Defendants also note that the EEO Officer interviewed Plaintiff and other individuals mentioned in his Complaint
Plaintiff has presented relatively little admissible evidence that might satisfy his burden at this stage. In its discussion of Plaintiff's prima facie case, the Court noted that Plaintiff's replacement by someone outside of his protected class raises an inference of discrimination. The fact that he was replaced by a person outside of his protected class is not, on its own, legally sufficient at this stage, however.
Plaintiff's other purported bases for a finding of pretext are also inadequate. While the parties dispute the upshot of MHC's performance metrics, and whether and when Guzman and Green communicated to Borzon his alleged deficiencies, even if Plaintiff's version of this evidence were true (and, as the non-moving party all disputes must be resolved in his favor), it is undisputed that he received feedback both formally and informally on several occasions prior to his termination, and it is undisputed that the feedback reflected dissatisfaction with his work. Plaintiff has adduced no admissible evidence that any alleged fabrication of additional performance deficiencies had anything to do with his race.
The alleged inconsistencies in Green's and Guzman's accounts of Plaintiff's termination are immaterial and do not support a finding of pretext. Plaintiff argues that Green did not believe he should be terminated. In fact, Green testified that she suggested Plaintiff work in a different role; that she did not play a role in his termination; and that she and Guzman were "in shock" when he was fired. P.S. ¶ 106, 115; Green Depo. at 142:7-47:23. Regardless of her input into the decision to terminate the Plaintiff, there is no dispute that Green and Guzman thought that Plaintiff was not right for his job in PFS and should be removed from that role, even if they differed on what would happen after that. See Green Depo. at 142:7-47:23; Guzman Depo. at 197:6-99:17. Accordingly, as the evidence indicates both supervisors had concluded that Plaintiff's performance was inadequate, these alleged inconsistencies are immaterial; no reasonable juror could infer from those differences that Defendants' reasons for terminating Borzon were pretext for an invidious motivation.
Lastly, Plaintiff's arguments regarding the alleged mishandling of his EEO Complaint are insufficient to create a triable question of fact. First, even though the evidence suggests that Nazario deviated from her standard practice, Plaintiff's 56.1 Statement appears to credit Nazario's explanation that this was because she was transitioning out of her role rather than because of racial bias towards Plaintiff. See P.S. ¶¶ 263-64; D.R.S. ¶¶ 263-64 ("Ms. Nazario's practice is to consult Health and Hospitals Corporation's Chief Employment Counsel, Blanche Greenfield, `[f]or review and advice' on internal investigations. . . . In the case of Mr. Borzon's investigation, Ms. Nazario did not do so because she was `transitioning out' and, therefore, `didn't have time.' . . . She testified that, `[g]oing from one facility to the next,[
In short, although Plaintiff was able to establish a prima facie case of discrimination, there is simply no admissible evidence from which a reasonable juror could find that Defendants' explanations were "not the true reason[s] (or in any event not the sole reason[s]) for the employment decision. . . ." Littlejohn, 795 F.3d at 307 (citations omitted). Borzon bears the burden not only of showing that Defendants' proffered reasons are false, but also that a jury could find that a discriminatory reason was more likely than not a motivation for Defendants' actions. See Holcomb, 521 F.3d at 138 (a plaintiff must show that "the employer's proffered reasons . . . were not the only reasons and that the prohibited factor was at least one of the `motivating' factors") (citations and internal quotation marks omitted). He has not met that burden. Defendants are, therefore, entitled to summary judgment on Plaintiff's discrimination claims.
The first through fourth causes of action in the Complaint allege retaliation under Title VII, § 1981, the NYSHRL, and the NYCHRL, respectively. See Compl. ¶¶ 42-57. Defendants move for summary judgment as to all four claims. See Notice of Mot.
Retaliation claims are also evaluated under the McDonnell Douglas burden-shifting standard.
A plaintiff establishes a prima facie case of retaliation by showing: "(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action." Jute, 420 F.3d at 173 (citation and internal quotation marks omitted). Defendants have conceded the first three prongs, citing Borzon's report to Guzman in late 2014 and his EEO Complaint as protected activity, and his termination as the adverse action.
As to this fourth prong, "proof of causation can be shown either: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant." Hicks, 593 F.3d at 170 (quoting Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)) (alteration omitted). "[T]emporal proximity can support an inference of retaliation for purposes of establishing a prima facie case, [but] the proximity must be very close." Dhar v. City of New York, 655 F. App'x 864, 865-66 (2d Cir. 2016) (quoting Abrams v. Dep't of Pub. Safety, 764 F.3d 244, 254 (2d Cir. 2014)) (internal quotation marks omitted). Courts in this District generally find two or three months to be the outer limit for establishing causation based on temporal proximity. See, e.g., Lambert v. Trump Int'l Hotel & Tower, No. 15-CV-582 (VSB), 2018 WL 1633765, at *11 (S.D.N.Y. Mar. 31, 2018) ("[T]he passage of about two months between the protected activity and the adverse action appears to be the approximate dividing line.") (citations omitted); Kassel v. City of Middletown, 272 F.Supp.3d 516, 538 (S.D.N.Y. 2017) ("The interview took place less than two months after the discussion with Amodio, an amount of time that the Second Circuit has found to be sufficient for the purpose of establishing temporal proximity.") (citations omitted); Percy v. New York (Hudson Valley DDSO), 264 F.Supp.3d 574, 586 (S.D.N.Y. 2017) ("Generally, three months is on the outer edge of what courts in this circuit recognize as sufficiently proximate to admit of an inference of causation.") (citations, alteration, and internal quotation marks omitted). Nonetheless, "temporal proximity alone is not enough to establish pretext in this Circuit."
Defendants contend that the time gaps between Borzon's termination, on the one hand, and his complaints to Guzman and to the EEO Office, on the other, are simply too long to establish a prima facie case. Defendants also argue that the performance review that was provided prior to any protected activity undercuts any inference of causation arising from the temporal proximity of his termination to his protected activity. See Defs.' Mem. at 22-25; Reply at 9. Plaintiff dedicates approximately one page of his Opposition to his retaliation claims, and offers no direct response to Defendants' arguments regarding this aspect of proving a prima facie case. See Reply at 23-24.
Plaintiff's complaint to Guzman occurred in either late November or mid-December 2014. P.S. ¶ 57; November Email; Borzon Depo. at 56:11-25, 78:6-80:11. At best, this report preceded Borzon's termination on April 15, 2015 by four months. Accordingly, the Court finds that it is too distant in time to support an inference of causation. In contrast, it appears that the EEO Complaint was filed about three months before Plaintiff was terminated, and Green learned of the EEO Complaint as little as two months before his termination. See supra note 11. The Court finds that this short lapse of time is sufficient to support a prima facie claim for retaliation, even though the Defendants had provided a negative performance review and other informal feedback prior to Borzon's filing of the EEO Complaint.
In all, there is sufficient evidence for a reasonable juror to infer that Borzon's internal EEO Complaint was the cause of his termination at the first step of the analysis.
To rebut the presumption created by Borzon's prima facie case, Defendants must proffer "a legitimate, non-retaliatory reason for the adverse employment action." Hicks, 593 F.3d at 164 (citation omitted). If Defendants do so, Borzon must come forward with evidence to show that "retaliation was a substantial reason for the adverse employment action[s]" or that "a retaliatory motive played a part in the adverse employment actions even if it was not [their] sole cause." Id. (citations omitted).
As discussed above regarding Plaintiff's discrimination claims, because Defendants have offered legitimate reasons for Plaintiff's termination, see supra Part II.B.3.ii, the burden returns to Plaintiff to demonstrate Defendants' retaliatory motive.
Plaintiff dedicates only a brief paragraph to his argument that the stated reasons for his termination are pretextual and that his firing was retaliatory. He again points to Green's statement denying having played a role in his termination as well as the mismanaged EEO investigation. See Opp. at 24. He also argues, without citation, that he was the only employee recommended for termination over a roughly five-year period.
Defendants respond that Plaintiff's only evidence supporting retaliation is the timing of his termination, which is insufficient, standing alone, to demonstrate pretext. Defs.' Mem. at 25-26; Reply at 9-10. They also argue that Plaintiff's Opposition fails to respond to their arguments and that he has essentially conceded that his claims are insufficient. Reply at 10.
As with his discrimination claims, Plaintiff has failed to rebut Defendants' proffered explanations for his termination with any evidence that would support a finding of retaliation. The Court discussed above that, despite inconsistencies in testimony related to Green's role in Plaintiff's dismissal, it is undisputed that both Green and Guzman found Plaintiff's performance lacking and, after having conveyed such feedback both formally and informally, sought his removal from his position in PFS. Moreover, Plaintiff's crediting of Green's statement that "neither she nor Mr. Guzman played a role in Mr. Borzon's termination," Opp. at 24, merely begs the question of who did play a role in his termination, a question Plaintiff does not even attempt to answer. Eliminating Plaintiff's supervisors, the two people most likely to have retaliated for his complaint to EEO, takes the Court even further from identifying any evidence of a decision maker who harbored retaliatory intent.
The evidence regarding the EEO investigation fares no better. Plaintiff advances no cogent explanation how an allegedly inadequate EEO investigation would indicate to a reasonable juror that Plaintiff's subsequent termination was retaliation for the claim the EEO Officer inadequately investigated. There is no allegation that the EEO Officer conspired with Plaintiffs' supervisors, or anyone else with the power to terminate Plaintiff, to bungle the investigation. Instead, as discussed in the discrimination claim analysis, Plaintiff appears to have credited Nazario's explanation for why she handled the investigation as she did—she was in the process of transitioning out of MHC. See D.R.S. ¶¶ 263-64. There is no evidence tying the investigation to alleged retaliation.
And as to the argument that Borzon was the only employee that Guzman recommended for termination during his time at MHC, Plaintiff makes no attempt to explain how this would indicate that Guzman's recommendation to fire him, which followed numerous instances of formal and informal feedback, was in retaliation for his EEO Complaint.
In all, Defendants are correct: the only evidence Plaintiff has presented from which a juror might conclude that his termination was in retaliation for his EEO Complaint is the timing of the two events. As noted above, mere temporal proximity is insufficient at this stage of the analysis for all of Plaintiff's retaliation claims. Notwithstanding his speculation that he was fired because of his EEO Complaint, Plaintiff has failed to meet his burden in response to the evidence of Defendants' legitimate bases for his termination. Defendants are, therefore, entitled to summary judgment on the retaliation claims.
For all the foregoing reasons, Defendants' motion for summary judgment is GRANTED. The Clerk is respectfully directed to close the open motion at Docket Entry 26 and to close the case.
The Court notes as well that Plaintiff made no effort to oppose Defendants' arguments regarding his § 1981 discrimination claim and Monell liability, and offered no evidence regarding any relevant municipal policy or custom. See Defs.' Mem. at 20-21; Reply at 10 n.5. See generally Opp. Accordingly, this provides an additional reason to grant the Defendants' motion for summary judgment as to the § 1981 discrimination claims.
