Opinion
05 Civ. 7909 (KMW)(HBP).
July 29, 2008
OPINION AND ORDER
Plaintiff Glen M. Clayborne ("Plaintiff") brings this pro se action against his former employer, OCE Business Services ("Defendant" or "OBS"), pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e to 2000e-17. Plaintiff asserts (1) termination based on his race and color; (2) disparate treatment based on his race and color; (3) retaliation based on his complaints of discrimination; and (4) hostile work environment based on his race and color. (Compl. 1 ¶¶ 4, 7, 8; D.E. 2.) On February 28, 2007, Defendant moved for summary judgment on all of Plaintiff's claims. (D.E. 27-31.)
On January 30, 2008, Magistrate Judge Henry B. Pitman issued a thorough Report and Recommendation ("Report"), familiarity with which is assumed, recommending that Defendants' motion be granted in its entirety. (D.E. 39.) Plaintiff filed timely objections to the Report. After de novo review of the Report and Plaintiff's objections, the Court grants summary judgment to Defendant on all of Plaintiff's claims.
On February 13, 2008, the Court granted Plaintiff's request for an extension of time to file any objections to the Report. (D.E. 40.) Plaintiff's objections were filed on February 29, 2008, in accordance with the Court's extension. (D.E. 42.)
I. Review of the Magistrate Judge's Report and Recommendation
Where a party has filed timely written objections, the Court reviews a magistrate judge's report and recommendation de novo. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Although a portion of Plaintiff's objections "simply reiterates the original arguments," Dixon v. Ragland, 2007 U.S. Dist. LEXIS 85159, at *2-3 (S.D.N.Y. Nov. 16, 2007) (citations omitted), in its discretion, the Court reviews the entire Report de novo. After de novo review, the Court adopts the Report's analysis and recommendations subject to the four clarifications described below.
The Court also corrects two dates provided in the Report. First, Plaintiff's interview for a permanent position at One Liberty Plaza occurred in or around August 2003 (see Guerriere Aff. ¶ 5, D.E. 29; Kaye Aff. Ex. 8 156, D.E. 30; Pl.'s 56.1 Stmt. 2, D.E. 38), not in June 2004 (see Report 7). Second, Plaintiff filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission ("EEOC") on January 3, 2005 (see Kaye Aff. Ex. 7 2, 3; Pl.'s 56.1 Stmt. 4), not on January 11, 2005 (see Report 10) or January 5, 2005 (see id. at 42).
In addition, the Court corrects six citations provided in the Report. First, Plaintiff described his career as an OBS employee on pages 29, 31-32, and 38 of his deposition transcript (see Kaye Aff. Ex. 8 29, 31-32, 38), not on page 23 (see Report 2). Second, the Report's citation to "Paluh v. HSBC Bank USA, 02 Civ. 850A (LGF), 2005 WL 1540195 at *18-*20 (W.D.N.Y. June 30, 2005)" should read "Paluh v. HSBC Bank USA, 409 F. Supp. 2d 178, 200-02 (W.D.N.Y. 2006)." The accompanying explanatory parenthetical should remain the same. (See Report 39.) Third, the Report's citation to "Raniola v. Bratton, 243 F.3d 610, 623 (2d Cir. 2001)quoting Kotcher v. Rosa Sullivan Appliance Ctr., Inc., 957 F.2d 59, 65 (2d Cir. 1995)" should read "Raniola v. Bratton, 243 F.3d 610, 623 (2d Cir. 2001) (quoting Sarno v. Douglas Elliman-Gibbons Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999))." The accompanying explanatory parenthetical should remain the same. (See Report 48.) Fourth, in its analysis of Plaintiff's hostile work environment claim, the Report relies on offending conduct described in Fitzgerald v. Henderson, 251 F.3d 345, 350 (2d Cir. 2001). (See Report 57.) However, the Second Circuit found that these allegations were properly dismissed as time-barred and therefore did not reach the merits of whether this offending conduct supported a hostile work environment. Fitzgerald, 251 F.3d at 361. The Court thus excludes this case in adopting the Report's analysis of Plaintiff's hostile work environment claim. Fifth, the Report's string cite on pages 58-59 should read as follows:
See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) ("For racist comments, slurs and jokes to constitute a hostile work environment, there must be more than a few isolated incidents of racial enmity, meaning that instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments.") (internal quotation marks and citations omitted); Little v. Northeast Util. Serv. Co., No. 05 Civ. 00806 (AVC), 2007 WL 781450, at *9 (D. Conn. Mar. 8, 2007) (single use of the term "black bitch" insufficient as a matter of law to create a hostile work environment); Daniels v. Health Ins. Plan of Greater N.Y., No. 02 Civ. 6054 (HB), 2007 WL 27115, at *5 (S.D.N.Y. Jan. 4, 2007) (two uses of epithet "nigger" insufficient to give rise to hostile work environment claim); Augustin v. Yale Club, No. 03 Civ. 1924 (KMK), 2006 WL 2690289, at *21-22 (S.D.N.Y. Sept. 15, 2006) (single use of expressions "fucking negrita" and "black bitch" insufficient to give rise to hostile work environment claim); Stembridge v. City of New York, 88 F. Supp. 2d 276, 286 (S.D.N.Y. 2000) (seven incidents of racial epithets and related conduct over three years insufficient to support a finding of a hostile work environment).
Sixth, Plaintiff described his reprimand for being five minutes late to work on page 129 of his deposition transcript (see Kaye Aff. Ex. 8 129), not on page 132 (see Report 60).
The Court notes that these corrections do not affect the Report's analysis or recommendations.
First, in the "Background Facts" section, the Report states that "[i]t is unclear whether 'Sal,' the manager [P]laintiff alleges used the expression 'here is the black guy,' was a[n] . . . OBS employee." (Report 5 n. 4.) However, Plaintiff indicated at his deposition that Sal was an OBS employee. (See Kaye Aff. Ex. 8 132.) This clarification does not affect the Report's analysis or recommendations because despite finding Sal's employment status to be ambiguous, the Report considered this incident in its analysis of Plaintiff's claims. (See Report 26, 31-34, 43-44, 58-59.)
Second, although the Report describes Plaintiff's claims as race-based (see, e.g., Report 17, 40, 41, 57), the Complaint indicates that Plaintiff's claims are based on both race and color (see Compl. ¶ 7). The Court concludes that the Report's analysis and recommendations apply with equal force to Plaintiff's claims based on color. This clarification therefore does not affect the Report's analysis or recommendations.
Third, the Report construes the second element of a prima facie case of discrimination as requiring Plaintiff to establish satisfactory job performance. (See Report 23-26.) However, to satisfy the second element of his prima facie case, "all that is required is that [P]laintiff establish basic eligibility for the position at issue, and not the greater showing that he satisfies the employer." Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 92 (2d Cir. 2001.); see also Owens v. New York City Housing Auth., 934 F.2d 405, 409 (2d Cir. 1991) (a plaintiff must demonstrate only "that she possesses the basic skills necessary for performance of the job") (internal quotation marks and citations omitted). The Court notes that Plaintiff's inability to work with seven OBS clients (see Report 24), may preclude even this lesser showing. However, the Court need not decide this issue because even assuming arguendo that Plaintiff is able to satisfy the second element of his prima facie case, Plaintiff cannot satisfy the fourth element of his prima facie case (see Report 26-34) or his burden at the third stage of the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), and its progeny (see Report 36-40). Therefore, this clarification does not affect the Report's remaining analysis or recommendations.
Fourth, in the context of Plaintiff's disparate treatment claim, the Report enumerates several "instances of allegedly unequal treatment" (Report 41), but does not include Operation Manager Chris Hyland's ("Hyland") alleged statement that "its [sic] always your kind that gives me problems" (Pl.'s 56.1 Stmt. 4). Plaintiff's claim regarding this discrete act is time-barred (see Report 42-43) because this incident occurred in December 2003 (see Def.'s 56.1 Stmt. ¶ 39). Accordingly, this clarification does not affect the Report's analysis or recommendations.
Plaintiff further alleged that when he questioned Hyland about the remark, Hyland "just walked away" and then told Plaintiff he should "quit" if he did not like how he was being treated. (Pl.'s 56.1 Stmt. 4.)
II. Plaintiff's Objections
Because Plaintiff proceeds pro se, his objections "are generally accorded leniency." Dixon, 2007 U.S. Dist. LEXIS 85159, at *3 (citation omitted). Furthermore, the Court construes Plaintiff's objections to "raise the strongest arguments that they suggest." Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (citation omitted).
The Court construes Plaintiff's objections to raise the following arguments: (1) the Report failed to address Plaintiff's claims of slander and emotional distress (see Pl.'s Objections 2); (2) the Report overlooked the fact that at the time of his termination, Plaintiff was no longer in the pool of floating managers affected by the reduction in workforce, but rather was employed in a permanent position in the OBS Accounting Department (see id. at 3-4); (3) the Report overlooked the fact that Operations Manager Brian Guerriere ("Guerriere") was aware of Plaintiff's complaints of discrimination (see id. at 4-5); and (4) Plaintiff was retaliated against for declining the position at One Liberty Plaza (see id. at 9). After de novo review, the Court finds that Plaintiff's objections lack merit.
A. Slander and Emotional Distress
After de novo review, the Court finds that Plaintiff fails to state a claim for slander, negligent infliction of emotional distress, or intentional infliction of emotional distress. Upon review of the Complaint, the EEOC Charge of Discrimination, excerpts of Plaintiff's deposition, and Plaintiff's opposition to Defendant's motion for summary judgment, the Court finds that the only mention of slander and emotional distress occurs in Plaintiff's opposition. (See Pl.'s 56.1 Stmt. 4, 19.) The Court therefore concludes that Plaintiff fails to state a claim for any of these causes of action in the Complaint. (See generally, Compl.)
Moreover, a review of the record reveals insufficient facts to support a claim for any of these causes of action. First, any claim of slander must fail because publication of the accusation of stealing to OBS employees, all of whom were attempting to address the accusation, would fall within the common interest privilege. See Mobile Data Shred, Inc. v. United Bank of Switz., No. 99 Civ. 10315, 2000 U.S. Dist. LEXIS 4252, at *21 (S.D.N.Y. Apr. 5, 2000) (citations omitted). Second, any claim of negligent infliction of emotional distress or intentional infliction of emotional distress must fail because Plaintiff fails to allege sufficiently outrageous and extreme conduct. See Sheila C. v. Povich, 11 A.D.3d 120, 130 (N.Y.App.Div. 2004) (quoting Murphy v. American Home Prods. Corp., 448 N.E.2d 86, 90 (N.Y. 1983)).
The Court looks to New York law because New York constitutes Plaintiff's residence, Defendant's place of business, and the Court's forum state. (See Compl. ¶¶ 1-3.)
B. Plaintiff's Alleged Permanent Position
Plaintiff raises new factual allegations in his objections to the Report. Plaintiff now alleges that at the time of his termination, he "held a permanent position at the main [OBS] office" and "was not in the managers floating pool [sic]." (Pl.'s Objections 3.) Specifically, Plaintiff alleges that in late August 2004, OBS transferred Plaintiff from the pool of floating managers to a permanent position in the Accounting Department where he worked for "three to four days" before taking a previously planned vacation. (See id. at 3.) Plaintiff was allegedly terminated the day he returned from his vacation. (See id. at 3-4.) As stated in the Report, "unverified, unsworn statements . . . are . . . insufficient to create a genuine issue of material fact." (Report 16.) The Court thus finds that Plaintiff's new allegations fail to create a genuine issue of material fact.
The Court notes that this allegation contradicts Plaintiff's sworn deposition testimony that his "most recent position" at OBS was the position of "floating manager." (Kaye Aff. Ex. 8 29.)
Even accepting Plaintiff's new factual allegations as true, the Court finds that (1) Defendant proffers a legitimate, non-discriminatory and non-retaliatory reason for Plaintiff's termination (see Pl.'s Objections 4; Guerriere Aff. ¶ 6); and (2) Plaintiff fails to satisfy his burden at the third stage of the burden-shifting analysis.
C. Guerriere's Alleged Awareness of Plaintiff's Complaints
Plaintiff objects that the Report overlooked Guerriere's awareness of Plaintiff's complaints of discrimination. (See Pl.'s Objections 4-5.) Once again, Plaintiff's "unverified, unsworn statements . . . are . . . insufficient to create a genuine issue of material fact." (Report 16.) The Court thus finds that Plaintiff's allegations fail to create a genuine issue of material fact.
The Court notes that Plaintiff includes similar allegations in his opposition to Defendant's motion for summary judgment. (See Pl.'s 56.1 Stmt. 4.) However, like Plaintiff's objections, Plaintiff's opposition is also unverified and unsworn.
Even accepting Plaintiff's allegations as true, the Court finds that Plaintiff fails to establish a prima facie case of retaliation. As stated in the Report, a prima facie case of retaliation requires Plaintiff to establish, inter alia, a causal connection between a protected activity known to OBS and an adverse employment action taken against Plaintiff. (See Report 47.) A causal connection may be established by (1) temporal proximity between the protected activity and the adverse employment action; (2) "disparate treatment of fellow employees who engaged in similar conduct;" or (3) "retaliatory animus."Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991) (citation omitted).
Plaintiff's allegations fail to establish such a causal connection. First, Plaintiff's Spring 2002 and December 2003 complaints to the OBS Human Resources Department are too temporally remote from his September 13, 2004 termination to establish a causal connection. See Woods v. Enlarged City Sch. Dist. of Newburgh, 473 F. Supp. 2d 498, 529 (S.D.N.Y. 2007) (collecting cases). Second, Plaintiff fails to allege disparate treatment of any similarly situated employees. Third, any allegations of retaliatory animus are far too speculative to create a genuine issue of material fact. See Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996) ("[C]onclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment.") Accordingly, even accepting Plaintiff's allegations as true, Plaintiff cannot establish aprima facie case of retaliation.
D. Plaintiff's New Retaliation Claim
Plaintiff raises a new retaliation claim in his objections to the Report. Plaintiff now alleges that "[a]fter [he] declined the position [he] started to receive undesirable work assignments that no other floating Managers will [sic] get, such as doing mail runs . . ., throw[ing] out garbage [sic] old furniture and replenish[ing] boxes." (Pl.'s Objections 9.) The Court assumes that Plaintiff refers to the position at One Liberty Plaza for which he interviewed in or around August 2003. Plaintiff alleges that he declined this position due to the job site's proximity to Ground Zero. (See Kaye Aff. Ex. 8 152-56.)
As explained in the Report, to establish a prima facie case of retaliation, Plaintiff must show that he engaged in a protected activity. (See Report 47.) In turn, a protected activity "as defined in 42 U.S.C. § 2000e-3 is an 'action taken to protest or oppose statutorily prohibited discrimination.'" (Report 47-48 (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000).) Declining a position because of discomfort about the job site's proximity to Ground Zero therefore does not constitute a protected activity. The Court thus concludes that Plaintiff fails to establish a prima facie case of retaliation based on declining this position.
III. Conclusion
After de novo review of the Report and Plaintiff's objections, the Court adopts the Report's analysis and recommendations subject to the clarifications described above. Accordingly, the Court GRANTS summary judgment to Defendant on all of Plaintiff's claims. The Clerk of Court is directed to close this case. Any pending motions are moot.
SO ORDERED.