Levitant v. City of New York Human Resources, 05-CV-0230 (JFB)(MDG).

• Citation: 625 F.Supp.2d 85
• Decision Date: 18 December 2008
• Docket Number: No. 05-CV-0230 (JFB)(MDG).,05-CV-0230 (JFB)(MDG).
• Parties: Zinoviy LEVITANT, Plaintiff, v. The CITY OF NEW YORK HUMAN RESOURCES ADMINISTRATION d/b/a Human Resources Administration, Defendant.
• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)

Page 85

625 F.Supp.2d 85

Zinoviy LEVITANT, Plaintiff, v. The CITY OF NEW YORK HUMAN RESOURCES ADMINISTRATION d/b/a Human Resources Administration, Defendant.

No. 05-CV-0230 (JFB)(MDG).

United States District Court, E.D. New York.

December 18, 2008.

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Susan Roth, Brooklyn, NY, for plaintiff.

Amy Grossberg and Carolyn Walker-Diallo, New York City Law Department, New York, NY, for defendant.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

Plaintiff Zinoviy Levitant ("plaintiff or "Levitant") brought this action on January 14, 2005 against his former employer, defendant City of New York Human Resources Administration ("defendant" or "Human Resources"), alleging that defendant discriminated against him on the basis of race and national origin in the terms and conditions of his employment, subjected him to a hostile work environment, and retaliated against him for reporting said discrimination to the Equal Employment Opportunity Commission ("EEOC"), all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII").

Defendant now moves for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, after carefully reviewing the record in this case, viewing all facts in the light most favorable to plaintiff and drawing all reasonable inferences therefrom, the Court denies defendant's motion in its entirety. Specifically, there are genuine issues of material fact regarding whether defendant's alleged discriminatory actions created a hostile work environment, whether defendant's proffered reasons for failing to promote plaintiff were a pretext for race and national origin discrimination, and whether various adverse employment actions taken against plaintiff were in retaliation for the complaints he filed about the alleged discrimination. Accordingly, defendant's motion for summary judgment on plaintiff's Title VII claims is denied.

I. FACTS¹

The Court has taken the facts described below from the plaintiff's complaint ("Compl."), the parties' depositions, affidavits, and exhibits, defendant's Local Rule 56.1 statement of facts ("Def.'s 56.1") and plaintiff's Local Rule 56.1 statement of facts ("Pl.'s 56.1"). In ruling on a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir.2005).

A. Plaintiff's Tenure with the Brooklyn APS Unit

Beginning on February 8, 1993, defendant employed plaintiff, a Caucasian male of Russian origin, as a case worker for the Child Welfare Administration, also known as the Administration for Children's Services or "ACS." (Def.'s 56.1 ¶¶ 1, 3.) In December of 2000, plaintiff was transferred from ACS to the Adult Protective Services ("APS") field office in Brooklyn. (Id. at ¶ 5.) There, he was transferred from the "Assessment Unit" to the "Undercare Unit." (Compl. ¶ 17.) Plaintiff maintains that, on or about the time of the transfer, he was the victim of racial discrimination based on the assignments designated to him and the manner in which supervisors discussed his Russian accent. (Id. at ¶ 16.) He further alleges that, when he requested a transfer back to the Assessment Unit, supervisor Eileen Anderson denied his request, citing a waiting list, but placed less experienced African-American employees in the desired unit. (Id. at ¶ 18.)

From 2001 until 2003, plaintiff was supervised by Martha Barnes and Martin Agwuncha. (Def.'s 56.1 ¶ 7.) He also was supervised by Eileen Anderson, as Director of Brooklyn APS, Deborah Holt-Knight as Deputy Director of Brooklyn APS, Urdine Kennedy as a Level III Supervisor and Sandra Brown as a Level II Supervisor. (Id. at ¶ 8.)

In January and April of 2001, Agwuncha informed Holt-Knight that he was having difficulty training plaintiff because he was resistant to supervision and engaged in harassing behavior. (Id. at ¶¶ 9-10.) On May 29, 2001, supervisor Barnes issued a "Certificate of Achievement" to plaintiff for "outstanding performance and initiative." (Pl.'s Ex. B.) On August 29, 2001 and December 7, 2001, plaintiff received counseling memoranda for: (1) leaving the work site without authorization; (2) lying and insubordination; and (3) conducting union activities during working hours. (Def.'s 56.1 ¶¶ 11-12.)² These memoranda asserted that plaintiff had been observed taking lengthy, unauthorized smoking breaks and socializing with employees on another floor during work hours. (Id.)

Beginning in early 2002 and continuing through June of the same year, plaintiff alleges that supervisor Kennedy disparaged him by referring to him as a "Russian" and a "Jew." (Compl. ¶ 19; Levitant 4/28/06 Dep. at 108-09, 132-33.) He further charges that during this same year, he approached supervisor Kennedy about the lack of drinking water in the office, to which she responded "`that plaintiff can go and drink water from the toilet—you Russians did that in the past.'" (Compl. ¶ 20; Levitant 4/28/06 Dep. at 142-43.)

Plaintiff received another counseling memorandum on June 25, 2002 for insubordination and failure to complete mandated field visits. (Def.'s 56.1 ¶ 14.) These charges stemmed from an incident that took place on June 25, 2002, wherein supervisor Kennedy ordered plaintiff to meet with her and supervisor Anderson in Kennedy's office to discuss his objectionable behavior towards her when she sought to discuss a client visit with plaintiff. (Def.'s Ex. J.) Plaintiff and defendants dispute the events that actually transpired thereafter, but ultimately, Human Resources brought disciplinary charges against plaintiff on August 7, 2002 for: (1) engaging in threatening and intimidating behavior towards supervisor Anderson; and (2) leaving the work site without authorization after his encounter with Anderson and Kennedy. (Def.'s 56.1 ¶ 18.)³

1. Plaintiffs First EEO Complaint

Plaintiff maintains that Anderson assaulted him during the June 25, 2002 incident and that she did so in retaliation for three complaints of race discrimination that he allegedly filed with the Agency prior to this date regarding Kennedy's racially disparaging statements. (Compl. ¶¶ 21-22.) A careful review of the evidence submitted by both parties, though, indicates that plaintiff filed his first complaint with the City New York Office of Equal Employment Opportunity ("EEO") in August of 2002, after the alleged assault and no charge of discrimination was contained therein. In the complaint, plaintiff charged that Agency management had: (1) subjected him to unsanitary work conditions; (2) retaliated against him for conducting union activities; and (3) behaved rudely towards him. (Def.'s 56.1 ¶ 21; Def.'s Ex. U.)⁴ On September 10, 2002, Lilla Sexton, Director of the EEO office, informed plaintiff via memorandum that his claims did not fall within the criterion of EEO protected classes. (Def.'s 56.1 ¶ 23.)

On July 9, 2003, July 18, 2003 and July 28, 2003, plaintiff filed three separate grievances with his union alleging that Agency management had behaved in a hostile manner towards him. (Id. at ¶¶ 28-30.)

On August 8, 2003, supervisor Brown issued a counseling memorandum to plaintiff asserting that on that day, when seeking to meet with plaintiff in Brown's office, plaintiff threatened her and refused to meet with her to discuss his work performance. (Id. at ¶ 31.) Brown also reported plaintiffs alleged conduct to supervisor Anderson and filed a police report about the alleged threatening behavior. (Id. at ¶¶ 32-33.)⁵ Plaintiff maintains that, during the incident giving rise to the counseling memorandum, supervisor Brown assaulted him and that on that same day, supervisor Barnes mocked his Russian accent and stuck her fingers in his face in a threatening manner. (Compl. ¶ 26; Levitant 4/28/06 Dep. at 118-19; Levitant 6/28/06 Dep. at 247).

2. Plaintiff's Internal Complaints

On August 12, 2003, plaintiff filed an internal complaint against supervisor Anderson, alleging that she created a hostile work environment in retaliation for previous complaints he had filed regarding unsanitary work conditions and racial discrimination. (Def.'s 56.1 ¶ 38.) The evidence submitted by both parties indicates that, as of August 12, 2003, plaintiff had not yet filed any complaints alleging racial discrimination.

Plaintiff took sick leave from August 11, 2003 through August 18, 2003. (Id. at ¶ 35.) He then took a previously-approved vacation from August 18, 2003 until September 9, 2003. (Id. at ¶ 39.) He requested medical leave from September 10, 2003 until October 3, 2003, requested annual leave for October 6, 2003 and returned to work for the first time since the August 8, 2003 incident on October 7, 2003. (Id. at ¶ 40.) He was then suspended for his conduct during the August 8, 2003 incident until October 26, 2003. (Id. at ¶ 41.)

B. Plaintiff's Reassignment to the Lombardi Unit

On or about November 3, 2003, plaintiff was reassigned from the APS Unit to the Home Care Lombardi Unit in Manhattan. (Id. at ¶ 47.) On November 12, 2003 and December 3, 2003, plaintiff's new supervisor, Debora Daniel-Preudhomme, issued counseling memoranda to plaintiff informing him that he was not permitted to handle personal or union business during work hours. (Id. at ¶¶ 50-51.) Plaintiff maintains that "at this time and at this location," supervisor Daniel-Preudhomme threatened to arrest him "if [he] spoke in his native Russian language in the office and on the telephone." (Compl. ¶ 36.) Specifically, plaintiff alleges that "[Daniel-Preudhomme] heard me answering my cell phone. I had a family call during my lunch hour to my cell phone. She told me if she heard me again talking Russian on the phone she'll have the security remove me and throw me out." (Levitant 7/5/06 Dep. at 105.)

On December 5, 2003, plaintiff filed another EEO complaint against Anderson,...