Aulicino v. New York City Dept., Homeless Services

• Citation: 580 F.3d 73
• Decision Date: 08 September 2009
• Docket Number: Docket No. 06-5605-cv.
• Parties: Thomas A. AULICINO, Plaintiff-Appellant, v. NEW YORK CITY DEPARTMENT OF HOMELESS SERVICES, and Linda Gibbs as Commissioner of the Agency, Defendants-Appellees.<SMALL><SUP>*</SUP></SMALL>
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

580 F.3d 73

Thomas A. AULICINO, Plaintiff-Appellant, v. NEW YORK CITY DEPARTMENT OF HOMELESS SERVICES, and Linda Gibbs as Commissioner of the Agency,

Defendants-Appellees.^*

Docket No. 06-5605-cv.

United States Court of Appeals, Second Circuit.

Argued: November 19, 2008.

Decided: September 8, 2009.

Arthur Z. Schwartz, Schwartz, Lichten & Bright, P.C., New York, NY, for Appellant.

Fay Ng (Pamela Seider Dolgow, Eric Eichenholtz, Michael A. Cardozo, Corporation Counsel of the City of New York, of counsel), New York, NY, for Appellees.

Before: STRAUB, SACK, and WESLEY, Circuit Judges.

SACK, Circuit Judge:

The plaintiff, Thomas Aulicino, appeals from a judgment of the United States District Court for the Eastern District of New York. Aulicino is a Motor Vehicle Operator ("MVO") at the Hinsdale Depot of the New York City Department of Homeless Services ("DHS"). He claims that he was denied a promotion at DHS because he is white, was subjected to a discriminatory hostile work environment, and was retaliated against for engaging in protected activity. The district court (Sterling Johnson, Jr., Judge), adopting a report and recommendation by Magistrate Judge Lois Bloom over Aulicino's objections, granted the defendants' motion for summary judgment and dismissed Aulicino's complaint in its entirety.

In our view, the failure to promote and hostile work environment claims should not have been dismissed. We conclude that the record reflects genuine issues of material fact with respect to the failure to promote claim. We therefore vacate the dismissal of that claim and remand the cause for trial. We also think the district court, in applying the legal standard governing hostile work environment claims, failed to consider the record evidence in the light most favorable to the plaintiff, as it was required to do. We therefore vacate and remand the complaint with respect to that cause of action for reconsideration.¹

BACKGROUND

Evidence of Derogatory Racial Comments

According to Aulicino's deposition testimony, Frank John, an African-American who was a fleet coordinator at the Hinsdale Depot beginning in November 2001, made several "nasty" and "harassing" "racial comments" to or about Aulicino. Aulicino Dep. 76, 88. For example, John told Aulicino that "it was all right for [a DHS client] to call [Aulicino] a white mother fuck" and that "[Aulicino] deserved it." Id. at 136; see also id. at 76 (same). In the same encounter, according to Aulicino, John threatened to withhold Aulicino's pay for that day, though he did not follow up on the threat. See id. at 136-37. On another occasion, John remarked to Aulicino that "white people are lazy." Id. at 76. And on another, John asked a white colleague why he and Aulicino "all take off the same days ... like there was some sort of white conspiracy." Id. at 88. On still another, Aulicino was told by one of his supervisors, Gary Brown, that John called him a "white fuck" and had threatened to "get" him. Id. at 154-56.²

It is not clear from Aulicino's testimony or other material in the record when the statements in question were allegedly made. Aulicino's second amended complaint and brief on appeal assert that they occurred in a period between late December 2001 and September 2002. See Amended Complaint³ ¶¶ 19-40; Appellant's Br. 5-8.

Aulicino also testified that his African-American supervisor, Larry Singleton, made "the sort of comments Frank John makes." Aulicino Dep. 169. Singleton became Aulicino's supervisor several months before Aulicino's deposition was taken in August 2004. See id. at 27. The excerpted deposition transcript in the record does not specify any particular derogatory comments made by Singleton.

In an affidavit dated March 21, 2006, and submitted in opposition to the defendants' motion for summary judgment, however, Aulicino testifies to several recent examples of derogatory comments made by Singleton, all of which, he says, occurred during the pendency of this action. According to the affidavit, on January 7, 2005, Singleton handed him a copy of an old union contract and grievance form. When Aulicino asked why he had done so, Singleton "mentioned" the instant lawsuit "in an aggressive and inappropriate manner," as he had several times before. Aulicino Aff. ¶ 5. According to the affidavit, Aulicino told Singleton to stop harassing him and threatened to file a complaint about the incident. At that point, according to the affidavit, Singleton "stated that he [Singleton] was an ex-felon." Id. Aulicino interpreted that as a threat that he would be "assault[ed]" if he were to file such a complaint. Id. The affidavit also asserts that on April 27, 2005, Singleton "confronted" Aulicino saying, "Go back to Bensonhurst and tell everyone that you report to a black man who is making your life miserable." Id. ¶ 2. Aulicino stated in his affidavit that he thought the comment was "racist" and that he told Singleton that "he was creating a hostile work environment." Id. ¶ 3. Singleton replied, "I'll show you what a hostile work environment is." Id. ¶ 4.

The affidavit also alleges that in July 2005, Singleton discussed a book he displayed on his desk "titled Black and White: Separate, Hostile, and Unequal" with African-American colleagues while pointing at Aulicino and laughing. Id. ¶ 6. According to Aulicino, Singleton also commented in Aulicino's presence that a lynching of an African-American man could have been avoided if the man's friend "had not given the man up to white people" and that "the moral of the story was that black people need to stick together against white people." Id. ¶ 7.

Overall, Aulicino swore, the racial remarks by John and Singleton rendered Aulicino "short fused." Aulicino Dep. at 169. Aulicino has contemplated an attempt to transfer out of the Hinsdale Depot, but has not done so because he does not "know where else to go," in light of what he characterizes as his "very limited" choices. Id.

The Denial of a Promotion

On May 13, 2002, DHS posted a job opening for a Motor Vehicle Supervisor ("MVS") position at the Hinsdale Depot. The vacancy notice specified these qualifications:

Preferred Skills:

1. One year of permanent service in the title of Motor Vehicle Operator.

2. One year of full-time experience in Motor Vehicle Dispatching, and

3. A valid NYS Class B Motor Vehicle Driver License

....

MINIMUM QUALIFICATIONS

1. One year of permanent service in the title of Motor Vehicle Operator; or

2. One year of full-time experience vehicle dispatching.

License Requirement

A Motor Vehicle Driver License valid in the State of New York. For appointment to certain positions, possession of a Class B Commercial Driver License [("CDL")] valid in the State of New York may be required. There may be certain age requirements to obtain this license. Employees must maintain the Class B Commercial Driver License during their employment.

City of New York, Department of Homeless Services, Job Vacancy Notice, May 13, 2002 ("MVS Posting"), at 1. Aulicino submitted his application for the position on May 22, 2002, and he was interviewed by John on June 13, 2002.

Aulicino, according to his deposition testimony, found the interview "very unbelievable" because it "seemed like [John] was trying to discourage [him] and disqualify [him] all at the same time from taking the job" by telling Aulicino that the position was for a later shift "and that [John] knew [Aulicino] didn't want to change shifts." When Aulicino "tried to tell [John] about [his dispatching] experience [John] stopped [him] and said that he knew all about it and that was the end of the conversation." Aulicino Dep. 108-09. John also "asked [Aulicino] if [he] had a CDL license [sic]." Aulicino did not, but he said to John that the CDL "was not an official requirement," in light of the fact that motor vehicle supervisors "basically ... don't drive." Aulicino also volunteered that "if it was necessary [he] would upgrade [his] license." Id. at 109-10.

John declined to promote Aulicino. Aulicino testified that one of his supervisors, Sterling Ferguson, later told Aulicino that he had heard John "make derogatory comments about [Aulicino]" in connection with his application, "saying that he wouldn't hire [Aulicino]," referring to Aulicino as "a white fuck." Id. at 96-97; see also id. at 100 ("[Ferguson] told me about stuff that [John] said to ... him when he spoke to [John] in regard to [whether] I was qualified for the position I was applying for and [John] responded by saying something to the [effect of] I wouldn't hire that white fuck.").

John testified in his deposition that he rejected Aulicino for the MVS position because "Mr. Aulicino didn't have the appropriate driver's license" — he had "a class E license," and, John thought, the job vacancy posting required "a valid New York State Class B license." John Dep. 109. John also testified that "looking at Mr. Aulicino's record, it wasn't that good, it wasn't good." Id. at 145. And indeed it appears that although Aulicino's performance was consistently rated "good," he was "written up" several times for misconduct on the job.

Joseph Johnson, an African-American, was awarded the MVS position. At the time, Johnson had a commercial learner's permit but no Class B license, some "fill-in" dispatching experience, Johnson Dep. 64, and more than one year of experience as an MVO.

Procedural History

On January 7, 2003, Aulicino filed a pro se complaint with the EEOC. He received a "right to sue" letter from the agency on March 1, 2003. He initiated this action pro se on May 13, 2003, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by completing and filing a form complaint alleging discrimination and retaliation on the basis of his race, color, and national origin. Aulicino checked a line on the form to reflect his assertion that the defendants were "still committing these acts against [him]." On August 4, 2003, shortly...