Sattar v. Johnson, 12 Civ. 7828(GWG).

• Decision Date: 11 September 2015
• Docket Number: No. 12 Civ. 7828(GWG).,12 Civ. 7828(GWG).
• Citation: 129 F.Supp.3d 123
• Parties: Mohammad SATTAR, Plaintiff, v. Jeh JOHNSON, Defendant.
• Court: U.S. District Court — Southern District of New York

129 F.Supp.3d 123

Mohammad SATTAR, Plaintiff,

v.Jeh JOHNSON,¹ Defendant.

No. 12 Civ. 7828(GWG).

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

Signed Sept. 11, 2015.

Alexander Todd Coleman, Michael John Borrelli, Law Offices of Borrelli & Associates, Great Neck, NY, Alexander Gastman, Borrelli & Associates P.L.L.C., New York, NY, for Plaintiff.

Monica Pilar Folch, United States Attorney's Office, New York, NY, for Defendant.

OPINION AND ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge.

Plaintiff Mohammad Sattar brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to e–17 ("Title VII") and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 –34 ("ADEA"), alleging that defendant Jeh Johnson, in his capacity as the Secretary of Homeland Security and by through the United States Immigration and Customs Enforcement (the "Government"), discriminated against him on the basis of his age, national origin, religion, and gender. Sattar claims he was not selected for a promotion, was subjected to a hostile work environment, and experienced retaliation as a result of bringing complaints about the alleged discrimination. The parties have consented to a United States Magistrate Judge presiding over this case under 28 U.S.C. § 636(c). The Government has moved for summary judgment.² For the reasons given below, the Government's motion is granted.

I. BACKGROUND

A. Facts

Unless otherwise noted, the following facts are either undisputed or reflect Sattar's version of the facts as supported by admissible evidence.

Sattar is a 72–year–old Muslim man who is originally from Bangladesh. See Deposition of Mohammad Sattar held September 22, 2014, annexed in part as Ex. A to Folch Decl. ("Gov't Sattar Dep.") and in part as Ex. 1 to Gastman Decl. ("Pl. Sattar Dep."), at 31; Gov't 56.1 Stmt. ¶ A.1; Pl. 56.1 Stmt. ¶ A.1. He earned a Bachelor of Science degree from Dhaka University in Bangladesh. See id. at 38–39. He also attended LaGuardia Community College and Queens College, earning 166 credits, though he did not graduate. See id.; Resume of Mohammad Sattar, annexed as Ex. G to Folch Decl. ("Sattar Resume"), at US_00131. He completed six credits in accounting and nine in economics as electives, but his concentration was in computer science and statistics. Pl. Sattar Dep. at 39; see also Sattar Resume at US_00131.

Sattar began working for the Immigration and Naturalization Service, whose successor agency is now part of the Department of Homeland Security ("DHS"), in 1981 as a part-time language interpreter and translator. See Pl. Sattar Dep. at 43–44; Gov't 56.1 Stmt. ¶ A.4; Pl. 56.1 Stmt. ¶ A.4. At some point, he left that position to work for the FBI. See Pl. Sattar Dep. at 44. In March of 1989, he began working in the Federal Protective Service ("FPS") as a full-time GS–5 Control Room Operator. See id. at 46–47; Gov't 56.1 Stmt. ¶ A.5; Pl. 56.1 Stmt. ¶ A.5. FPS is a branch of DHS, providing security at federal facilities. See Deposition of Martin McRimmon held September 9, 2014, annexed in part as Ex. B to Folch Decl. ("Gov't McRimmon Dep.") and in part as Ex. 2 to Gastman Decl. ("Pl. McRimmon Dep."), at 31.

In 1993, Sattar was involuntarily transferred to a procurement position within FPS. See Pl. Sattar Dep. at 53–54; Gov't Sattar Dep. at 63. He believed this transfer was due to the fact that his name indicated that he was Muslim, and some higher-ups in the organization were "touchy" about having a Muslim working in the control room. Pl. Sattar Dep. at 54–55. This belief was based on a conversation shortly after this transfer, in which John Ulianko, a regional director who supervised Sattar's group at FPS, see November 7, 2014 Deposition of John Ulianko, annexed in part as Ex. 4 to Gastman Decl. ("Ulianko Dep."), at 25–26, 171; Pl. Sattar Dep. at 56, asked Sattar: "Are those terrorists your cousins?" in reference to recent terrorist attacks, see id. at 54–55, 80; Pl. 56.1 Stmt. ¶¶ A.6.a; 100–01. Additionally, Sattar had once told Ulianko that "I am an Ahmadiyya Muslim," and Ulianko replied, "[a]fter all, you're a Muslim." Pl. Sattar Dep. at 78. However, Ulianko did not have anything to do with the transfer. See id. at 80. At some point, Ulianko discovered that Sattar had been going into the men's room, kneeling down in a stall, and praying. See Am. Compl. ¶ 60; Affidavit of John A. Ulianko, dated Nov. 10, 2005, annexed as Ex. 10 to Gastman Decl. ("Ulianko Aff."), at Plaintiff002077. On September 12, 1997, Sattar's then-supervisor, John Natale, made a gesture in which he pretended to shoot Sattar with an imaginary rifle, making a "bang" sound. See Pl. Sattar Dep. at 75; Affidavit of John Walter Natale, dated June 24, 1998, annexed as Ex. 8 to Gastman Decl., at 2.

In 1995, Sattar was promoted to a position as a GS–7 Program Technician, where his duties included ordering supplies, approving orders, completing invoices, making payments, and keeping records of transactions. See Pl. Sattar Dep. at 68; Ulianko Aff. at Plaintiff002077; Pl. 56.1 Stmt. ¶¶ A.8.a, 102. According to Ulianko, this is "a dead end position." Ulianko Aff. at Plaintiff002077. Indeed, this was the last promotion Sattar received, though he applied for others. See Pl. Sattar Dep. at 7, 242. At some unspecified time after 1995, his title changed to Mission Support Assistant. See Pl. Sattar Dep. at 80; see also September 12, 2014 Deposition of Miankanze Bamba, annexed in part as Ex. D to Folch Decl. ("Gov't Bamba Dep.") and in part as Ex. 3 to Gastman Decl. ("Pl. Bamba Dep."), at 40 (Sattar's position is listed as "Procurement Technician," but it should be "Mission Support Specialist"). However, the only difference between the Program Technician and Mission Support positions was their titles. See Pl. McRimmon Dep. at 46–47. Sattar has been in either of these two positions, at the same pay grade, since 1995. See Pl. Sattar Dep. at 7; Pl. McRimmon Dep. at 47. His current job duties include paying bills normally up to $30,000, "P card" purchasing, working with "miscellaneous ... [and] recurring obligations," doing "reconciliations and closeouts," and making direct payments to vendors. Pl. Bamba Dep. at 42, 47–48; see Pl. Sattar Dep. at 12–13. He had also "obligated" some transactions at the million-dollar level. Pl. Bamba Dep. at 42. Some of the budget and financial work that Sattar does, and has been doing for years, is the same as that done by a Budget Analyst. See id. at 46–48; Affidavit of Patricia Waskiewicz, annexed as Ex. 12 to Gastman Decl. ("Waskiewicz Aff."), at US_ 00096. However, his work is on a smaller dollar scale, involving fewer lines of transactions. See Pl. Bamba Dep. at 49.

Since he has worked for FPS, Sattar has filed several equal employment opportunity ("EEO") complaints. See Pl. 56.1 Stmt ¶¶ C.64–70; Gov't 56.1 Stmt. ¶¶ C.64–70; Pl. Mem. at 24; Am. Compl. ¶ 63. For example, on October 28, 1997, Sattar filed a complaint alleging that he was discriminated against based on his race, national origin, religion, and age in connection with his non-selection for a Contract Specialist position. See Formal Complaint of Discrimination, annexed as Ex. 9 to Gastman Decl. at Plaintiff001554–55. On May 11, 2005, Sattar filed an EEO complaint alleging that he had been discriminated against and denied promotions at FPS on the basis of his religion and national origin. See Complaint of Discrimination, attached to Report of Investigation annexed as Ex. O to Folch Decl., at Plaintiff002018. On March 3, 2006, he amended that complaint to include claims of "ongoing racial and religious discrimination." Amendment to Complaint, annexed as Ex. P to Folch Decl., at Plaintiff002514. The amendment included allegations that Ulianko discovered Sattar had been going into the men's room, kneeling down in a stall, and praying and that Sattar was subsequently placed in a "dead end position"; that emails critical of Muslims had been circulated around the FPS office; and that a manager crept up behind Sattar and shouted "bang." See id. at Plaintiff002514–16.

All of these claims were resolved by an EEOC settlement agreement that Sattar entered into with DHS. See Settlement Agreement, dated Mar. 21, 2006, annexed as Ex. Q to Folch Decl. ("Settlement Agreement"). Pursuant to that settlement agreement, the subject matter of the 2005 complaint was not to "be made the subject of future litigation." Id. at US_00419. DHS agreed to provide Sattar with five training courses during official time, id., but they did not give him time off from work to complete those courses, and Sattar ultimately used three weeks of annual leave to complete one of the courses, see Pl. Sattar Dep. at 316. At some point in 2004 and again in 2006, Ulianko asked Sattar why he went to EEO with these complaints, instead of bringing them to Ulianko. See id. at 186. At some unspecified times in 2004 and 2006, Ulianko told Sattar, "You're too old." Id. at 186; Gov't Sattar Dep. at 347–48. On December 24, 2008, an individual named Denis McGowan emailed Ulianko, with a "cc" to McRimmon, saying that Sattar had approached him and asked why he was being denied a promotion and alleged that he had been unfairly treated. See Ex. 11 to Gastman Decl. McGowan wrote that, in this conversation, Sattar mentioned "go[ing] to EEO" and engaged in "other veiled saber rattling," and he concluded the email with a warning that Sattar was "starting in again." Id.

Some time in 2009, DHS announced a vacancy for a Budget Analyst position by posting Vacancy Announcement Number LAG–FPS–278253–SR–372–0562. Pl. 56.1 Stmt. ¶ B.11; Gov't 56.1 Stmt ¶ B.11; Am. Compl. ¶ 35; see Ex. H to Folch Decl. ("Vacancy Announcement"). It stated that a Budget Analyst would be required to "perform a variety of administrative and analytical duties connected with the formulation, justification, presentation and evaluation of the agency budget." Vacancy Announcement at US_00116. This was a "journeyman grade" position, meaning...