Dhar v. Nyc Dep't of Transp.

• Decision Date: 19 August 2014
• Docket Number: 10-cv-5681 (ENV) (VVP)
• Parties: PRABIR DHAR, Plaintiff, v. NYC DEPARTMENT OF TRANSPORTATION, JYOTISH SHAH, and BOJIDAR YANEV, Defendants.
• Court: U.S. District Court — Eastern District of New York

PRABIR DHAR, Plaintiff, v. NYC DEPARTMENT OF TRANSPORTATION, JYOTISH SHAH,and BOJIDAR YANEV, Defendants.

10-cv-5681 (ENV) (VVP)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

FILED: September 24, 2014

August 19, 2014

MEMORANDUM & ORDER

VITALIANO, D.J.,

Pro se plaintiff Prabir Dhar brings this action against his employer, the New York City Department of Transportation ("DOT"),¹ and two of his supervisors, Boris Yanev and Jyotish Shah for alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq, ("Title VII"), 42 U.S.C. § 1981, 42 U.S.C. § 1983, 42 U.S.C. § 1985, the New York State Human Rights Law ("NYSHRL"), the New York City Human Rights Law ("NYCHRL"), and the Equal Pay Act of 1963, 29 U.S.C. § 206(d) ("EPA"). Dhar, according to his complaint, claims that defendants discriminated against him on the basis of his race, religion, and nationalorigin, subjected him to a hostile work environment, and retaliated against him for exercising his First Amendment rights. Dhar and defendants have each moved for summary judgment. For the reasons that follow, defendants' motion for summary judgment is granted and Dhar's cross-motion for summary judgment is denied.

Background

The following facts are drawn from the complaint and the parties' submissions on their cross-motions, including their statements of material fact filed pursuant to Local Civil Rule 56.1. Any factual disputes are noted.

Dhar was hired by DOT on or about October 19, 1997, as an Assistant Civil Engineer (or "ACE") in the Bridge Inspection Unit ("BIU") of the DOT's Division of Bridges. (Defendants' Local Civ. R. 56.1 Statement of Undisputed Facts ("Def. 56.1 Stmt") ¶ 2.) He was interviewed for the position by, among others, Shah, the Director of the BIU and Dhar's direct supervisor. (Id.) Yanev is the Executive Director of the BIU, and Shah's direct supervisor. (Yanev Decl. ¶ 1.)

Dhar, who identifies as Bangladeshi and Christian, alleges that, during his tenure in the BIU, his supervisors have discriminated against him on national origin and religious grounds by denying him salary increases, promotions, necessary services, and opportunities for overtime pay; singling him out for undesirable and unreasonable tasks; and subjecting him to racial slurs. By contrast, Dhar claims that Shah and Yanev repeatedly gave employees of their own backgrounds preferential treatment. Specifically, Shah, who Dhar asserts is from the Gujarat province of India and is Hindu, is alleged to have favored other Indian/Gujurat, Hindu employees; Yanev, who Dhar asserts is from Bulgaria, has allegedly favoredother Eastern European employees. Dhar further asserts that Shah and Yanev have retaliated against him for complaining about this discriminatory treatment.

Dhar contends first, that he has been denied salary increases, while other more junior, less qualified, and less experienced ACEs—of the same national origin and/or religion as either Shah or Yanev—who were performing similar job assignments were recommended for increases by Shah and Yanev. (Compl. ¶¶ 18-19, 41.) Dhar highlights five colleagues in particular, all ACEs in the BIU: Kamlesh Patel, Jitendra Patel, and Mitul Patel, all of whom Dhar describes as being of Indian national origin, specifically from the Gujurat province, and of Hindu religion; Alexandr Bezdezhsky, whose national origin Dhar alleges is Ukrainian; and Radu Georgescu, whose national origin Dhar alleges is Romanian. (See Compl. Ex. B.)

Dhar further alleges that he has been denied opportunities for paid overtime, while other ACEs in the BIU have been given such opportunities, especially employees of Indian descent and Hindu religion. (Compl. ¶ 48; Pl. 56.1 Stmt. ¶ 107.) He zeroes in on Mitul Patel, who earned $50,000 in overtime in 2009 alone, well in excess of DOT's normally allowed limit of 20 percent of the employee's base salary. (Pl. 56.1 Stmt. ¶¶ 4, 106.) Dhar also alleges that Patel and other ACEs earned at least some of their overtime pay not from actual overtime work, but because Shah improperly changed their time sheets to reflect overtime work they did not perform. (See Pl. 56.1 Stmt ¶ 89-90, 144; Pl. Ex. "TSFO.") Defendants counter that the availability of overtime work within the BIU depends on the needs of the unit, and it is distributed by team leaders on a volunteer basis. (See Def. 5.1 Stmt ¶¶ 89-95.) Dhar's supervisor from 2003 to about August 2009, Jerry Kao, had requested not towork overtime; as a result, his team was typically not offered overtime work, and had to request it from other team leaders if desired. (Id. at ¶¶ 91-92.) Defendants further present evidence that DOT employees are permitted to exceed the 20% limit with permission, and that, in 2009, Mitul Patel was asked—and approved—based in part on his computer science background, to take on a project that required copious overtime. (Id. at ¶ 107.)

Plaintiff's next grievance concerns the room he worked in. On or about September 24, 2009, as a result of a reorganization, Dhar was transferred to a different team within the BIU. Shah instructed him to move from Room 101, where he had been seated for six years, to Room 103—on the same floor of the same building—where his new team leader sat. (Def. 56.1 Stmt ¶¶ 48-49.) Dhar requested not to move rooms, setting off a months-long dispute with Shah and Yanev. (See Def.'s 56.1 Stmt ¶¶ 51-57.) Dhar apparently resisted the move in part because he felt unsafe working alongside another employee sitting in Room 103, Alexandr Bezdezhsky. (See Khandakar Aff., Ex. R at DD005.) Among other things, Dhar alleges that Bezdezhsky instigated an altercation with him in 2002 or 2003 in which the police were called. (Pl. 56.1 Stmt ¶ 49.) While no evidence of this incident is presented, the record confirms that, at times, Bezdezhsky acted belligerently with other employees, (see, e.g., Pl. Ex. R (1/12/10 Testimony of Thirugnanam Mohan before DOT Advocate's Office) at 17, 21 (testimony that Bezdezhsky was "hostile" toward his supervisor and raised his voice with him, and that other team leaders did not want him)), and that, in November 2009, after Dhar entered Room 103 to speak with their shared team leader, Bezdezhsky yelled at Dhar, unprovoked, to get out.(See id. at 6.) Additionally, Dhar refused to move because the new room lacked a computer and network access for him, which he needed to do his work, facts which defendants do not dispute. (See Pl. Ex. Q (March 9, 2010 Testimony of Jyotish Shah before DOT Advocate's Office) at 31.)

On December 1, 2009, Shah issued a Record of Progressive Discipline based on Dhar's failure to relocate his workplace as instructed. (Khandakar Aff., Ex. S.) Dhar moved to Room 103 later that month. In his new location, however, plaintiff complains that he lacked a proper place to sit, an internet connection, a telephone connection, and other essential services that all other employees had, and that his requests for phone and internet service were ignored. (Compl. ¶ 32, 33.) Dhar eventually received a computer and internet service, but they were provided about a month after he moved. In the interim, he shuttled back to his old desk to use a computer. A direct phone line was provided after about three to six months. Before that, Dhar had to share a phone line with another employee. (Khandakar Aff., Ex. Q at 166-67; Pl. 56.1 Stmt. ¶ 58.) Dhar's root allegation is that he was singled out to transfer rooms, with its accompanying denial of necessary services, as a result of the claimed discrimination. In support, he submits evidence that other ACEs were permitted to remain in different rooms with the apparent acquiescence of their team leaders. (Pl. 56.1 Stmt. ¶ 47.) Dhar further alleges that Yanev threatened and verbally abused him for refusing to transfer rooms. He appears to base this on an email that Yanev sent to Dhar threatening that, if he refused to move, his working hours would not be authorized and his time would be reduced—particularly the time he was using to write unnecessary emails surrounding his room transfer. (SeeKhandakar Aff., Ex. R at DD005.)

In November 2009, Dhar filed a formal complaint with the DOT Advocate's Office, based on the alleged pay discrepancies and room transfer, among other things. That office initiated a formal investigation in December 2009, including taking testimony from witnesses. The case was eventually closed with a finding that Dhar's claims were not substantiated. (Compl. ¶ 26; Khandakar Aff., Ex. X.) Dhar also filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on or about November 14, 2009.

Thirugnanam Mohan, another of Dhar's supervisors, testified, on January 12, 2010, in connection with the Advocate's Office investigation. On or about January 25, 2010, Mohan complained to the Advocate's Office concerning certain behavior by Shah following his testimony. He said that Shah had questioned him regarding why he had been talking to the Advocate's Office for so long and inquired about the subjects of discussion. Following his testimony, Mohan claims Shah retaliated against him by attempting to change his assignments. He says Shah also instructed him to start treating Dhar in a "harsher manner." (See Pl.'s Ex. "TMAO" at 1 (Office of the Advocate Investigative Action Sheet, dated Jan. 25, 2010.)) Although he expressed feeling "weakened" by Shah's actions, Mohan stated that he would not obey the instruction to treat Dhar differently, and that he would document Shah's behavior toward him, and would continue to notify the Advocate's Office about any problems. (Id.) Mohan declined to file a formal complaint regarding these events.

Dhar alleges that the harassment not only continued, but acceleratedfollowing his complaints. On April 29, 2010, a training class was conducted by a Staten Island Rapid Transit employee and was attended by a number of BIU employees, including Dhar, Shah, and Yanev. (Def. 56.1 Stmt ¶¶ 82-83; Compl. ¶...