Kumaga v New York City School Constr. Auth.

[*1] Kumaga v New York City School Constr. Auth. 2010 NY Slip Op 50619(U) [27 Misc 3d 1207(A)] Decided on April 2, 2010 Supreme Court, New York County Jaffe, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 2, 2010
Supreme Court, New York County

Eric A. Kumaga and ACHOR NJOKU, Plaintiffs,

against

New York City School Construction Authority, Defendant.



127817/02



For petitioners:

Marshall Belovin, Esq.

Ballon Stoll Bader & Nadler P.C.

729 Seventh Avenue - 17th floor

New York, NY 10019

For respondent:

Donna Canfield, ACC

Michael A. Cardozo

Corp. Counsel of the City of New York

100 Church St.

New York, NY 10007-2601

Barbara Jaffe, J.

By notice of motion dated November 17, 2009, defendant moves pursuant to CPLR 3212 for an order dismissing this action for employment discrimination. Plaintiffs oppose the motion, except to the extent that plaintiff Njoku withdraws his cause of action for breach of contract. For the reasons that follow, defendant's motion to dismiss the claims advanced by plaintiff Kumaga is granted, and the motion to dismiss the claims advanced by plaintiff Njoku is granted in part and denied in part.

I. UNDISPUTED FACTUAL BACKGROUND

Plaintiffs, both of whom are of African origin, were employees of defendant, a public benefit corporation that builds public schools and manages the design, construction, and [*2]renovation of capital projects in New York City's more than 1,200 public schools. (Affirmation of Donna A. Canfield, Esq., dated Nov. 12, 2009 [Canfield Aff.], ¶ 12; Affidavit of Craig Collins, Senior Director of Construction Management, dated Nov. 12, 2009, annexed as Exh. K to Canfield Aff. [Collins Affid.], ¶ 1; Pub. Auth. Law § 1727). Defendant's Department of Construction Management is responsible for overseeing the construction of the City's schools and is divided into boroughs, each of which is headed by a Chief Project Officer (CPO), who supervises the Senior Project Officers (SPOs), who in turn oversee the Project Officers II (POIIs) and Project Officers I (POIs). (Collins Affid. ¶ 2).

A. Eric A. Kumaga

Plaintiff Kumaga holds a Bachelor of Science degree in Engineering Technology from the New Jersey Institute of Technology, and an Advanced City Guilds Certificate from the Accra Polytechnic Institute in Ghana. (Canfield Aff. ¶ 20, Exh. M). In 1989, he joined defendant as an Associate Project Officer, now known as a POI, after having worked for the Board of Education of the City of New York, and was assigned to theProject Management Division in Manhattan. (Canfield Aff. ¶¶ 16, 17, Exh. E at 16, 22). The duties of a POI include the "coordination of activities for the design and construction of less complex construction projects under the direction of a senior-level Project Officer." (Canfield Aff. ¶ 18, Exh. L).

In November 1996, Kumaga was promoted to the position of POII which is responsible for administering and coordinating activities for the design and construction of the "more complex and/or high visibility construction and modernization projects under the guidance of a senior-level Project Officer," including "coordinative, problem-solving, and managerial functions." (Id.; Canfield Aff. ¶ 21, Exh. N). On his first employee evaluation as POII for the calendar year 1997, Kumaga received an overall rating of "good," indicating that he "meets standards," but falls below "very good" and "outstanding." (Canfield Aff., Exh. O).

Beginning in late 1997 and through March 1999, Kumaga worked under the supervision of SPO George Vrettos. (Canfield Aff. ¶ 25, Exh. E at 27, 124). Kumaga alleges that Vrettos publicly referred to him at least 10 times as "Kunta Kinte," notwithstanding his request that he refer to him by his actual African name, and that on the three or four occasions he expressed his intention to visit his native Ghana, Vrettos asked him to bring him back some bows and arrows. (Id. ¶¶ 27, 30, Exh. E at 83, 112). While under Vrettos's supervision, Kumaga made no complaints about him. (Id. ¶¶ 28-29, Exh. E at 80-82, 86, 86-88).

Vrettos admits having used the term "Kunta Kinte" in Kumaga's presence on at least one occasion and, at his deposition, testified that when Kumaga told him about his life and village in Africa, he replied, "Amazing, we have another Kunta Kinte." (Canfield Aff., Exh. G at 33-34). Although he also acknowledges having asked Kumaga to bring him back souvenirs from Africa, he denies having asked for bows and arrows. (Id. at 33).

Vrettos gave Kumaga a rating of "good" on his evaluation for 1998, and in each of the subject categories a "good" rating except for that of administration, for which he noted that Kumaga "needs improvement on following up on issues that will [affect] construction and not completely rely on CM's to ensure that the contract is enforced." (Canfield Aff. ¶ 33, Exh. P, Exh. 1). At his deposition, Kumaga opined that he deserved a rating of "very good." (Canfield Aff. ¶ 36, Exh. E at 121-123).

In early 1999, Dan Reddan, then Vice-President of Project Management, instructed [*3]Harvey Brind, CPO for Manhattan and Staten Island, and each borough CPO to provide a Project Officer for the newly formed Closeout Unit, which is responsible for closing out the back log of substantially completed work. (Affidavit of Harvey Brind, dated Nov. 12, 2009, annexed as Exh. P to Canfield Aff. [Brind Affid.], ¶ 13). On March 15, 1999, Brind assigned to the Closeout Unit Kumaga and four other black POIIs and five white POIIs, without any change in title or salary. (Canfield Aff. ¶¶ 38-40, Exhs. H, P, Q). Hani Arafat became Kumaga's new supervisor. (Id.

¶¶ 39, 45, Exh. E at 119).

Arafat evaluated Kumaga for the period from March 15, 1999 to the end of 1999, giving him an overall rating of "outstanding," and "very good" or "outstanding" for each individual category, including "outstanding" for "administration with the minimum level of supervision." (Brind Affid., Exh. 1). Arafat added that "Kumaga is a very hard working individual," but his "developmental need" is to "[e]nhance his verbal communications." (Id.)

On August 15, 2000, Kumaga was assigned to the Manhattan Project Management Division, without change in his title or salary. (Canfield Aff. ¶ 50, Exh. R). Kumaga has a good working relationship with his new supervisor, Paul Taylor who, in 2001, gave him an overall rating of "good." (Id., Exh. E at 61, Exh. P at Exh. 1).

Between 2000 and 2002, Kumaga unsuccessfully applied four times for the SPO position, which requires excellent organizational, problem-solving, and communication skills, and has responsibility for supervising all field personnel and for coordinating and supervising all project-related activities within defendant as well as outside architects, engineers, construction managers, general contractors, and government agencies. (Brind Affid. ¶ 10; Collins Affid. ¶ 6). When there is an opening for an SPO, defendant's Human Resources Department publishes its availability and its minimum qualifications, and reviews the applications for the minimum qualifications. A roster of the selected candidates is sent to the CPO for the borough in which the SPO position is available. (Id. ¶ 10). The CPO reviews the resumes and any performance evaluations. (Id.). Selected applicants are scheduled for interviews with a three-person panel made up of CPOs from the other boroughs. (Id. ¶11).

In July and August 2000, Brind sat on a hiring panel that interviewed Kumaga and three others for an SPO position in Brooklyn. (Id. ¶¶ 24, 27, Exh. 8). Whereas the panel found that Kumaga met the minimum qualifications for the job, it selected another employee who, it observed, had received a "very good" overall rating on his last performance evaluation, was well-versed in the pertinent procedures, had successfully completed projects for defendant, and had demonstrated a willingness and motivation to take on new tasks and manage people. (Id. ¶¶ 25-27, Exhs. 8-10).

Arafat gave Kumaga an overall rating of "outstanding" on his performance evaluation for the period ending August 14, 2000, and an "outstanding" for each applicable category, noting Kumaga's "high work ethics." He also observed, however, that Kumaga needed to "enhance his verbal communication skills." (Collins Affid., Exh. 1).

On August 16, 2001, Brind and Reddan sat on a hiring panel that interviewed Kumaga and others for an SPO position in Brooklyn. (Id. ¶¶ 28-29, Exh. 13). Although the panel determined that Kumaga met the minimum qualifications for the job, it recommended another candidate, finding that "although [the candidate's] background focuses mostly on design/ engineering management, he possess a good knowledge of construction methodology . . . [and] [*4]has significant management experience which would serve the authority well." (Id. ¶¶ 30, 32, Exhs. 12, 13; Brind Affid. ¶ 27).

On his performance evaluation dated August 17, 2001, covering the period August 15, 2000 through February 15, 2001, SPO Paul Taylor gave Kumaga an overall rating of "good" with a notation that Kumaga "is willing to go out of his way if requested to do additional work," that his projects are on schedule, and that he "should continue to improve his skills at running job meetings and holding contractors to task." (Collins Affid., Exh. 1).

In April 2002, Collins sat on a hiring panel that interviewed Kumaga and others for an SPO position in Brooklyn and selected another of defendant's employees for the position. (Collins Aff. ¶ 27, Exh. 8). Although the panel determined that Kumaga met the minimum qualifications for the job, it "highly recommended" the other employee, described him as a "very good communicator, knowledgeable in construction," and observed that he had performed excellent[ly] . . ." (Id. ¶ 27).

On a performance evaluation dated July 17, 2002, covering February 16, 2001 through February 15, 2002, SPO Patrick Rafter gave Kumaga an overall rating of "good." (Brind Affid., Exh. 1).

On August 19, 2002, Collins and Arafat sat on a hiring panel that interviewed Kumaga and others for an SPO position in Manhattan. (Collins Affid., ¶ 37). In selecting another employee for the position, the panel found that she "has extensive well-rounded experience in all construction discipline" and "good supervisory skills" (id. ¶ 38, Exh. 15), and noted that Kumaga "has good general knowledge of the [pertinent] processes," but "needs more experience with line projects and major expansions to help round out his day to day experience" (id. ¶ 39, Exh. 17).

B. Njoku

Anchor Njoku holds a Bachelor of Science in Architecture from New York Technical College and a diploma in Building from Yaba College of Technology in Nigeria. (Canfield Aff.

¶ 61, Exh. S). He began working for defendant in 1990 as an Associate Project Officer (now known as POI). (Id. ¶ 58, Exh. F). In 1992, he was promoted to POII. (Id. ¶ 62, Exh. T).

In 1997, after unsuccessfully applying two times for an SPO position, Njoku sought and obtained a position at the New York City Department of Design and Construction but ultimately returned to defendant. (Id. ¶¶ 63, 64, Exh. C). On his evaluation for the period ending November 12, 1998, Njoku received an overall rating of "needs improvement." (Collins Affid., Exh. 1).

On March 15, 1999, Njoku, like Kumaga, was assigned to the Closeout Unit, under Arafat's supervision. (Canfield Aff. ¶¶ 68, 69, 72). In his first performance evaluation from Arafat, for the period ending December 31, 1999, Njoku received an overall rating of "needs improvement," and a "needs improvement" rating for each principal responsibility except "manages construction with the minimum level of supervision," for which he received a rating of "good." (Collins Affid., Exh. 1). Arafat also noted that Njoku's ability to administer with the minimum level of supervision "needs a lot of improvement," that "his written communication [is] vague and misleading," that "he does not maintain accurate notes or conclusions," that "he poorly maintains the project files,"and that he "very rarely visits the school sites of the assigned projects." (Id.).

By written response dated January 26, 2000 Njoku asserted that his rating should have been "at the least, very good,' if not outstanding,'" and he presented a chronological summary of [*5]his performance, concluding that "from the beginning, it is clear that I have essentially completed the close of all the projects I was transferred with from project management and the ones assigned to me soon after I was reassigned to the Close Out Unit." (Id., Exh. X). He requested a reevaluation and a meeting with Arafat and Paul Sacco, defendant's Vice-President of Construction Services. (Id.).

In a letter to Sacco dated March 24, 2000, Njoku detailed the work he had done and expressed his strong belief that Arafat was continually harassing him. (Id.). He requested a transfer from the Closeout Unit and alleged that Arafat had refused to sign certificates of substantial completion for the projects he had completed. (Collins Affid. ¶ 75, Exh. X). In a letter to Arafat, also dated March 24, 2000, Njoku detailed his work and asked that he sign the certificates of substantial completion. (Id.).

By email to Sacco, dated June 12, 2000, Njoku wrote: When I reiterated my desire to be transferred from the close out unit, I hope I did not create the wrong impression. On the contrary, I do not mind working in this new division in a different capacity, under a new supervisor. To continue to work in a unit where I have been harassed for over a year, where facts have constantly been misrepresented and misconstrued against me and my performance arbitrarily and capriciously undermined, is counterproductive to say the least. It is no longer in the interest of my health, my family's welfare and to the benefit of this organization. Moreover, after 10 years of meritorious service in an organization that I so much respect, being kept in the same position is bad enough, working in a hostile environment where my productivity and integrity is compromised is something else.

(Canfield Affid., Exh. AA).

Njoku unsuccessfully applied for the SPO position four times between 1999 and 2003. (Collins Affid. ¶ 15).

On July 25, 2000, Brind and Reddan sat on a hiring panel that interviewed Njoku and others for two SPO positions in Queens. (Brind Affid. ¶ 17, 23). Although the panel found that Njoku met the minimum qualifications for the job, it selected two other employees, noting that one demonstrated leadership qualities that would be advantageous in training younger POs, and that the other "shows dedication to his projects," which were all timely completed. (Id. ¶¶ 19, 20, Exh. 4). As one of the promotions was put on hold due to certain issues with the candidate's work, another candidate was selected for the position following a September 27, 2000 interview with another panel. (Id.

¶ 21, Exhs. 6, 7). In recommending that candidate, the panel took into account his "many years of construction coordination experience on major projects" and "experience in dealing with government agents." (Id.).

Arafat gave Njoku an overall rating of "good" for his performance evaluation for the period ending October 5, 2000, noting that he had improved his performance in all applicable areas previously noted as deficient in the 1999 evaluation, and that he should "enhance his Project Management skills." (Id. ¶ 80, Exh. 1).

In April 2001, a panel including Brind interviewed Njoku and three others for an SPO position in Queens/Bronx. (Brind Affid. ¶ 40). A project manager for the New York State [*6]Dormitory Authority was selected as the panel found him to be a "hands on manager, well versed in public authority methods and means of construction management . . . [and] confident in his ability to manage, with good communication skills." (Id. ¶ 41, Exhs. 17, 18). That candidate declined the position, and a new panel, including Brind, conducted additional interviews. Although the panel found that Njoku met the minimum qualifications for the job, it selected a candidate who was then a vice-president and executive director of a private contractor and had also been a construction manager for defendant, noting that he was "directly involved in supervision projects from design to completion." (Id. ¶¶ 41, 43, Exh. 20-22). That candidate also declined the position, and it was not filled. (Id. ¶ 45).

On August 13, 2001, Collins and Reddan sat on a hiring panel that interviewed Njoku and others for an SPO position in Manhattan. (Collins Affid. ¶¶ 19-20). The panel "highly" recommended and selected a candidate who had "significant construction and plant operation experience, specifically related to schools . . . [and] knowledge of construction and direct school experience . . ." (Id. ¶ 21, Exh. 4). As the candidate declined the position, Collins and Reddan sat on another panel which, on August 16, 2001, interviewed and recommended a candidate with extensive experience in the construction and design industry and previous management of multiple projects in all phases of construction, although it also found that Njoku met the minimum qualifications for the job. (Id. ¶¶ 22, 23, 25, Exh. 5).

In October 2001, Aileen Del Prado, Deputy Director in the Division of Architecture and Engineering, sat on a hiring panel that interviewed Njoku and others for the senior construction assessment specialist (SCAS) level B position. (Affidavit of Aileen Del Prado, dated Nov. 12, 1999, [Del Prado Aff.], annexed as Exh. DD to Canfield Aff.). The panel selected two other employees, one who had experience managing consultants and in-house projects and had "successfully met a unique challenge of fulfilling design manager responsibilities for in-house projects while concurrently managing consultants" (id., Exh. 2), and the other, who was currently working as an SCAS level A and had "extensive knowledge of technical issues as well as thorough knowledge of SCAS responsibilities." (Id.). Based on Njoku's resume, Del Prado determined that he lacked the necessary experience in the managing and designing of buildings. (Id.).

On his performance evaluation dated January 8, 2002, for the period from January 1, 2001 through December 31, 2001, Arafat gave Njoku an overall rating of "good," noted that he requires "continuous review of all his work sheets for the assigned projects," and gave him "needs improvement" ratings for the categories of supervision, problem-solving, meeting deadlines, attendance, and punctuality. (Canfield Aff. ¶ 81; Collins Affid., Exh. 1). By written response dated January 22, 2002, and addressed to one Peter McGlinchy, Njoku disagreed with Arafat's assessment, stating that his strengths include "working with minimum supervision" and "problem solving," that he meets deadlines, and that prior to his transfer to the Closeout Unit, he received superior performance evaluations. (Id., Exh. BB). He added: Being involuntarily reassigned, the majority of my evaluations had been "outstanding" or "very good." During the same 9-year time period (1990-1999), I successfully managed 10 Line Projects including seven new schools that were completed and three others that I managed at different stages, while concurrently managing a variety of CIP projects . . .[*7]Since being drafted and required to work in Project Health Assessment, under Mr. Arafat, my evaluations have been either "Needs improvement" or just "Good" no matter how well I worked. Consequently my professional growth and salary has been stunted and the Agency is not getting the full benefit of my professional expertise. This is a "lose-lose" situation that needs to be corrected. I regard my current assignment as disparate treatment that is not in anyone's best interest.

(Id.)

Upon his request, Njoku was transferred in February 2002 to the Project Management Division in the Bronx, "a position consistent with [his] experience and professional expertise." (Canfield Aff. ¶ 84).

In June 2002, Collins and Brind sat on a hiring panel that interviewed Njoku and others for an SPO position in the Bronx. (Collins Affid. ¶ 32). The panel selected another candidate based on his twelve years of construction and construction management experience and experience with school projects for defendant. (Id. ¶ 33, Exhs. 11, 12).

In his performance evaluation dated September 13, 2002, for the period covering February 1, 2002 through August 2, 2002 in the Project Management Division, Njoku received an overall rating of "good." (Collins Affid., Exh. 1).

C. Defendant's restructuring and Njoku's layoff

On October 31, 2002, Mayor Michael Bloomberg and Schools Chancellor Joel Klein announced a merger of defendant with the construction divisions of the Department of Education's Division of School Facilities. (Collins Affid. ¶ 46, Exh. 20). As part of the reorganization, defendant was directed to let go of approximately 50 percent of its staff and thus directed the vice-president of each department to reduce its personnel accordingly. (Collins Affid. ¶ 47.)

By memorandum dated January 16, 2003, Njoku was informed that he was laid off, and that his last day on the payroll would be January 24, 2003. (Canfield Aff., Exh. EE). The merger resulted in the layoff of 362 of defendant's approximately 900 employees. (Collins Affid. ¶ 48).

II. PERTINENT PROCEDURAL BACKGROUND

Plaintiffs' initial summons and complaint, filed December 26, 2002, was served on defendants on January 6, 2003. (Canfield Aff., Exh. A). By decision and order dated May 7, 2003, another justice of this court denied plaintiffs' motion for a default judgment and granted their motion to amend the complaint. (Id., Exh. B). On July 16, 2003, plaintiffs served an amended verified complaint, alleging disparate treatment on the basis of race and national origin in violation of Executive Law § 296 and New York City Administrative Code § 8-107(1)(a), and retaliation, in violation of Executive Law § 296(e) and New York City Administrative Code § 8-107(7). Kumaga alone alleges causes of action for hostile work environment on the basis of race and national origin, in violation of Executive Law § 296(a)(1) and the New York City Administrative Code § 8-107(1)(a). Njoku alone alleges causes of action for discriminatory termination in violation of New York City Administrative Code § 8-107(7) (id.), and now withdraws his previously pleaded causes of action for breach of contract (Memorandum of Law in Opposition to Defendant New York City School Construction Authority's Motion for [*8]Summary Judgment, dated Dec. 30, 2009 [Pl. Opp.]).

As no party had fully addressed the New York City Human Rights Law (NYC Admin. Code § 8-107[1][a]), I asked that they submit additional memoranda on it.

III. STATE LAW CLAIMS

A. Hostile work environment

1. Contentions

Defendant contends that Kumaga's claims that he was subjected to a hostile work environment are time-barred as all of the alleged conduct occurred more than three years before the commencement of the action on December 26, 2002. (Defendant's Memorandum of Law in Support of its Motion for Summary Judgment, dated Nov. 12, 1999 [Def. Mem.] at 3). In support, it annexes Kumaga's deposition, in which he admits that once he was assigned to the Closeout Unit, he was no longer subject to Vrettos's racial taunts, and thus, it argues, there was no continuing violation. (Canfield Aff. ¶¶ 39, 45, Exh. E at 119; Defendant's Memorandum of Law in Further Support of its Motion for Summary Judgment, dated Jan. 13, 2010 [Def. Reply Mem.], at 2).

In opposition, Kumaga denies that his claims are time-barred, alleging that they form a pattern of harassment commencing with Vrettos's conduct and continuing beyond December 26, 1999 with his compelled work on "low-profile and demeaning projects," defendant's failures to promote him (see infra, III.B.1.), and the instance of discriminatory treatment and harassment alleged by Njoku. (Pl. Opp. at 4, 18-19). He relies on the amended complaint (Canfield Aff., Exh. C).

Kumaga also asserts that without union representation he was unable to convey his complaints about the racially and ethnically hostile work environment, but that in May 2000, he complained to Reddan about Vrettos's "racially and ethnically derogatory comments," and of his transfer to, what he characterizes as, the predominantly black Closeout Unit. (Canfield Aff., Exh. C). That complaint, he further alleges, resulted in defendant's failure to offer him the SPO position in August 2000.

Although only Kumaga advances causes of action based on an alleged hostile work environment, defendant references Njoku's claim of harassment by Arafat in arguing that it is not connected with the alleged failure to promote him, and observing that Njoku never alleged that Arafat's harassment was based on race or national origin. (Id. at 4; Def. Reply Mem. at 11). It also maintains in its reply papers that it may not be held vicariously liable for Arafat's conduct in that regard. (Def. Reply Mem., at 12-13).

In the portion of the amended complaint relating to him, Njoku alleges that Arafat subjected him to "racially and ethnically disparaging remarks," gave him falsely negative performance evaluations, and designated for him a managerial salary increase far below managers outside the Closeout Unit. (Canfield Aff., Exh. C).

2. Analysis

Pursuant to Executive Law § 296(1): [i]t shall be an unlawful discriminatory practice: (a) For an employer . . . because of the. . . race, creed, color, national origin . . . of any individual, to . . . discriminate against such individual in compensation or in terms, conditions or privileges of employment.[*9]

A racially hostile work environment exists "when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 310 [2004]; citing Harris v Forklift Sys., Inc., 310 US 17, 21 [1983]). An action may not be maintained based on sporadic racial slurs, even if those slurs are offensive. (Forrest, 3 NY3d at 311). Rather, "there must be a steady barrage of opprobrious racial comments" to be actionable. (Id.).

Claims brought pursuant to Executive Law § 296 must be filed within three years of the prohibited conduct. (CPLR 214[2]; Koerner v State, 62 NY2d 442 [1984]). Where, however, there is "a continuous practice and policy of discrimination . . . the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it." (Cornwell v Robinson, 23 F3d 694, 703-704 [2d Cir 1994]). A continuous practice and policy of discrimination may be shown by "proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." (Id. at 704). Discrete incidents of discrimination do not constitute a continuing violation. (Id.).

Here, all of Vrettos's comments were directed at Kumaga more than three years before the December 1999 commencement of the action, Kumaga was transferred to the Closeout Unit well before December 1999, and there is no evidence that upon being transferred, any discriminatory comments were directed at him. Defendant has thus demonstrated, prima facie, that Kumaga's claims relating to Vrettos's comments and the transfer to the Closeout Unit are time-barred. The burden of proof thus shifts to Kumaga.

Although Kumaga alleges that his complaint to Reddan about Vrettos's allegedly discriminatory comments are causally related to allegedly disparate treatment occurring less than three years before the commencement of the action (see III.B.1.), an inference that the panel's decision to hire someone other than Kumaga in August 2000 resulted from Kumaga's May 2000 complaint to Reddan about Vrettos's 1999 conduct is too speculative to raise a triable issue, even if Reddan was on that hiring panel, an assertion that is unsupported by the record.

Defendant has also demonstrated, prima facie, that Njoku's allegations that Arafat subjected him to racially disparaging remarks are too conclusory to constitute prima facie evidence that he was subjected to a racially hostile work environment, or to raise a triable issue of fact.

B. Adverse employment action

1. Contentions

Defendant contends that plaintiffs' adverse employment action claims based on their assignments to the Closeout Unit are time-barred, as the assignments were made more than three years before the commencement of the action, and such claims do not, as a matter of law, constitute continuing violations. (Def. Mem. at 3-4). It alternatively argues that the assignments are not actionable because they are not materially adverse and do not give rise to an inference of discrimination. (Def. Mem. at 6-9).

While defendant acknowledges that some of its hiring decisions are not time-barred, and that the failure to promote plaintiffs may evidence adverse employment discrimination, it denies that plaintiffs have raised an inference of discrimination, contends that it has provided [*10]non-discriminatory reasons for its hiring decisions, and maintains that plaintiffs offer no evidence that the reasons are pretextual. (Id. at 22). In support of its contentions that each hiring decision was based on non-discriminatory reasons, defendant relies on interview notes relating to the hired candidates, the resumes and credentials of the hired candidates, and the affidavits of Brind and Collins, who sat on several of the hiring panels and were involved in many of the hiring decisions. (Brind Affid., Exhs. 1-26; Collins Affid., Exhs. 1-24).

Brind acknowledges that Kumaga met the minimum qualifications for the respective SPO positions and describes him as responsible and hard-working. He also observes, however, that he "lacks the communication, managerial, and decision-making skills necessary to be a successful candidate for a Senior Project Officer position," and denies that Kumaga's race or national origin played a part in decisions not to promote him. (Brind Affid. ¶¶ 11-12). He explains that he assigned Kumaga to the Closeout Unit not only because of his abilities but also because his projects had been reassigned to others during the five-week vacation Kumaga took during defendant's busiest season. Thus, Kumaga was available for the assignment to the Closeout Unit. (Brind Affid., ¶ 14).

Collins opines that Njoku lacked the skills and qualities necessary to perform successfully in a supervisory/management position. (Collins Affid. ¶ 16). Brind opines that Njoku "lacks the communication and decision-making skills necessary" for an SPO. (Brind Affid. ¶ 12).

In response, plaintiffs deny that the assignments to the Closeout Unit are time-barred, alleging that they are part of a pattern of continuing discrimination, a series of separate acts that collectively constitute one unlawful and discriminatory employment practice. (Pl. Opp., at 5). They each assert that the transfer to the Closeout Unit was "effectively a demotion," given the significant and consequential diminution in responsibility. Kumaga characterized the work as demeaning, adding as follows: There is no fascination is doing closeout. You feel like they are not allowing you to do your actual consulting work. You have to close other people's jobs, which they should have done in the first place. Nobody closes any job that I did; I closed them out.

(Canfield Aff., Exh. E at 84-85).

They also maintain that the transfers were part of a methodological transfer of African-Americans, and cite statistical evidence of racial discrimination allegedly contained in a 1997 report prepared by defendant's Office of Equal Employment Opportunity detailing defendant's inadequacies in hiring and promoting African-Americans. (Affidavit of Achor Njoku, dated Dec. 28, 2009 [Njoku Affid.]).

Charactering their work as "highly praised," plaintiffs claim that defendant hired less qualified candidates for the SPO positions, that defendant discriminated against them by failing to follow its policy of promoting its employees from within the borough in which they worked, and that Brind's and Collins's credibility is for a jury to decide. (Id. at 14-18).

In reply, defendant object to plaintiffs' reference to the 1997 report on the grounds that they have not annexed it to their papers and that in any event, it was found to be unreliable for another court. (Def. Reply Mem. at 1-5).

2. Analysis[*11]

In seeking the dismissal of an employment discrimination claim, a defendant "must demonstrate either plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for [its] challenged actions, the absence of a material issue of fact as to whether [its] explanations were pretextual." (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]).

The parties agree that the elements of a claim of racial discrimination in employment are set forth in McDonnell Douglas Corp. v Green, 411 US 792, 802 (1972): (1) the plaintiff is a member of a protected class; (2) who is qualified for the position; (3) who suffered an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. (Forrest, 3 NY3d at 306; Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997]). The burden then shifts to the defendant to "rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision." (Id.). If the defendant satisfies its burden, the burden then shifts back to the plaintiff to demonstrate that the defendant's reasons constituted "merely a pretext for discrimination by demonstrating that the stated reasons were false" and that the real reason was discriminatory. (Id.).

For an employment action to be adverse, the plaintiff must demonstrate that it affected a change in the terms and conditions of employment "more disruptive than a mere inconvenience or an alteration of job responsibilities." (Forrest, 3 NY3d at 306). A failure to promote may constitute a "material adverse employment" action. (See Hanna v New York Hotel Trades Council, 18 Misc 3d 436, 443 [Sup Ct, New York County 2007], citing Phillips v Bowen, 278 F3d 103, 109 [2d Cir 2002]).

Again, a claim brought pursuant to Executive Law § 296 must be filed within three years before commencement of the action. (CPLR 214[2]; Koerner v State, 62 NY2d 442 [1984]). In contrast to a hostile work environment violation, an involuntary transfer to a new division or a decision not to promote is a discrete act, and provides no basis for finding a continuing violation. (Natl R.R. Passenger Corp. v Morgan, 536 US 101 [2002]; Bailey v Synthes, 295 F Supp 2d 344, 353-54 [SD NY 2003]; Gross v NBC, 232 F Supp 2d 58, 68 [2002] ["alleged failures to compensate adequately, transfers, job assignments and promotions cannot form the basis of a continuing violation claim"]).

Defendant has demonstrated, prima facie, that plaintiffs' claims relating to the transfers to the Closeout Unit are time-barred (see, supra , III.A.2.), and as discrete acts, they do not continue over time. As plaintiffs offer no evidence to the contrary, their claims of adverse employment discrimination arising from the transfers are time-barred, as is any claim arising from the pre-December 26, 1999 hiring decisions not to promote Njoku. I thus need not address plaintiffs' assertions that the transfers to the Closeout Unit were, effectively, demotions. In any event, plaintiffs do not sufficiently specify how their responsibilities were reduced, and absent an evidentiary foundation for the statistical information they cite in the amended complaint, they offer no evidence that the transfers were attributable to their race or national origin. (Compare Feingold v State of New York, 366 F.3d 138 [2d Cir 2004] [determining that the "excessive workload" assigned to plaintiff administrative law judge raised a material fact as to discrimination, where plaintiff alleged that the senior judges who subjected plaintiff to [*12]discriminatory taunts would regularly reassign cases to the white judges that had originally been allocated to African-American judges]).

Many of the hiring decisions at issue are not time-barred, and defendant does not deny that plaintiffs met the minimum qualifications for these positions (Gregory v Daly, 243 F3d 687, 696 [2d Cir 2001] [plaintiff need only demonstrate possession of basic skills necessary for performance]). In explaining its hiring decisions, defendant provides the affidavit of at least one supervisor who was involved in the decision and who details the qualifications supporting the determination that each was a superior candidate, along with the panels' interview notes indicating that the applicant was either "recommended" or "highly recommended" for the job, and a discussion of that person's skills, experience, and demonstrated leadership qualities. Although these supervisors have acknowledged that plaintiffs met the minimum qualifications for the jobs and that they performed their work adequately, the performance reports indicate that each plaintiff frequently scored no more than a "good" rating and received "need improvement" ratings in many key areas related to an ability to lead and perform without supervision. Consequently, defendant offers evidence that demonstrates, prima facie, that its hiring decisions were based on objective criteria and not on illegally discriminatory motives.

Plaintiffs, on the other hand, only speculate that the hiring decisions arose from illegally discriminatory motives. Vrettos was not involved in any of the decisions, and again, it is unduly speculative to infer that the panel hired someone other than Kumaga in August 2000 due solely to Kumaga's May 2000 complaint about Vretto. (See, supra , III.A.2.).

Plaintiffs' estimations of their own qualifications do not raise an inference of discrimination, absent evidence that their "credentials were so superior. . . that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate over the plaintiff for the job in question."(Shub v Westchester Community College, 556 F Supp 2d 227, 253 [SD NY 2008] [internal citations omitted]).

Also absent is any evidence that Arafat's alleged harassment of Njoku, his performance evaluations or his recommended salary increases are causally related to defendant's failure to promote him.

Consequently, defendant has demonstrated adequate non-discriminatory reasons for each individual hiring decision, and absent an articulated basis for finding defendant's supervisors and hiring panels insufficiently credible or their decisions unreliable, there is no factual issue for resolution. And, even if plaintiffs had set forth a prima facie claim, defendant has met its burden of demonstrating that its hiring decisions were based on legitimate, non-discriminatory reasons.

The burden then shifts back to plaintiffs to demonstrate that defendant's reasons are pretextual. Again, the statistical evidence on which they rely is inadmissible and they offer no evidence supporting their allegation that defendant had a policy of promoting its employees from within the borough in which they worked, that it had or had not been followed, or that any of the non-African-American employee-candidates selected for the SPO position did not work in the boroughs in which they were hired.

For all of these reasons, plaintiffs have not established that they suffered adverse employment actions or that any adverse action occurred under circumstances giving rise to an inference of discrimination, whereas defendant has demonstrated, prima facie, legitimate non-discriminatory reasons for its hiring decisions, and plaintiffs have not come forward with [*13]any admissible evidence that the decisions were pretextual. Accordingly, plaintiffs have not presented a triable issue of fact as to adverse employment discrimination under Executive Law

§ 296.

C. Retaliation

1. Contentions

Defendant maintains that plaintiffs cannot establish that it took adverse action against them based on any protected activity, or establish any causal connection between a protected activity and an adverse action. (Def. Mem. at 23-26). It argues that absent any indication that anyone on the hiring panels knew of Kumaga's complaints regarding Vrettos, and as Njoku's layoff was part of a large staff reduction, their hiring decisions could not have resulted from any protected activity. (Id.). In support of its allegation that Njoku's layoff was a consequence of the staff reduction, defendant offers the affidavit of its Senior Director of Human Resources Division, and annexed handwritten list, dated December 19, 2002, and entitled "Project Management Cuts," which includes Njoku's name. (Affidavit of Louise Nicolazzi-Shapiro, Exh. A). Nicolazzi-Shapiro states that the list was "prepared by the Project Management Department," and "has been maintained in [defendant's] file relating to the reduction of force and reorganization of [defendant] during that period." (Id.).

Collins maintains that in December 2002, he and Reddan met with Njoku, informed him of the reorganization and advised him that he was to be among the laid-off employees. (Collins Affid. ¶ 50).

In response, Kumaga alleges that he met with Reddan in May 2000 to complain about Vrettos's racially disparaging comments, and that three months later, Reddan sat on a hiring panel which declined to promote him. (Pl. Mem. at 20). Plaintiffs thus argue that there is an issue of fact as to whether Kumaga was turned down because he had complained about Vrettos. (Id.).

Njoku alleges that his repeated complaints about Arafat's harassment of him raise a triable issue as to whether he was terminated based on his complaints (id. at 21-22), and he denies having met with Reddan and Brind in December 2002, maintaining that the first time he was informed of his termination was on January 16, 2003, after he served defendant with the summons and complaint (Affidavit of Achor Njoku, dated Dec. 28, 2009 [Njoku Affid.]).

2. Analysis

An employer is prohibited from retaliating against an employee for opposing discriminatory practices. (Executive Law § 296(7); Forrest, 3 NY3d at 213). To sustain such a claim, a plaintiff must show that: (1) he has engaged in protected activity; (2) the employer was aware that he participated in this activity; (3) he suffered an adverse employment action based upon his activity, and (4) there is a causal connection between the protected activity and the adverse action. (Forrest, 3 NY3d at 13).

It has been held that the mere proximity of protected activity and an adverse action does not, in and of itself, establish a causal connection between the two. (See Forrest, 3 NY3d at 313 [plaintiff cannot avoid summary judgment "merely by pointing to the inference of causality resulting from the sequence in time of the events."]; Forde v Beth Israel Med. Ctr., 546 F Supp 2d 142, 152 [SD NY 2008] [same]).

Thus, even if Kumaga had complained to Reddan about Vrettos, and even if the hiring decision followed soon thereafter, defendant's evidence that it hired a qualified candidate for the [*14]position, and absent any other evidence, Kumaga has failed to raise a factual issue sufficient for a trial of his claim that he suffered an adverse employment action as a result of his protected activity, or that there exists a causal connection between the protected activity and the adverse action.

To the extent that Njoku argues that his retaliation claim is supported by his commencement of this lawsuit, which is a protected activity, Njoku must also demonstrate that the termination resulted from the protected activity.

Although Njoku acknowledges having been officially informed of his layoff on January 16, 2003, ten days after he served defendant with the summons and complaint, an undisputably protected activity, he denies having been unofficially informed of it in December, thereby raising an issue of fact for trial. And, absent any evidence of the identity of the individual who prepared the handwritten list of cuts or a sufficient evidentiary foundation for it, it is inadmissible. Thus, there is no evidence that Njoku was terminated due to the publicized staff layoffs, and given the temporal proximity of Njoku's protected activity and his termination, there is evidence that defendant retaliated against him for filing an action against it. (See Cifra v General Electric Co., 252 F 3d 205, 217 [2d Cir 2001] [20-day interval between defendant's receipt of notice that plaintiff hired counsel to pursue claim of gender discrimination and plaintiff's termination short enough for plaintiff to establish prima facie case]).

IV. CITY LAW CLAIMS

The Local Civil Rights Restoration Act of 2005 (Restoration Act) was adopted based on an understanding that local discrimination laws were being undermined by courts which failed to distinguish between the New York City Human Right Law (Admin. Code § 8-130 [City HRL]) and its state and federal counterparts. In addition to amending individual statutory provisions of the City HRL, the Restoration Act mandated a complete reevaluation of all relevant provisions: The provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed.

(Restoration Act; see Williams v New York City Hous. Auth., 61 AD3d 62, 66 [1st Dept 2009], lv denied 13 NY3d 702] ["The Council saw the change to § 8-130 as the means for obviating the need for wholesale textual revision of the myriad specific substantive provisions of the law."]).

Thus, the City HRL is to be more liberally applied than its state counterpart. (Local Law No. 85 (2005) of City of New York; Williams, 61 AD3d 62; Brightman v Prison Health Svcs., Inc., 62 AD3d 472 [1st Dept 2009]), and requires an independent analysis of employment discrimination claims, recognizing and applying its broad, remedial purposes (Williams, 61 AD3d at 63, 74-75). Consequently, state and federal decisions do not constitute precedent unless they "are viewed as a floor below which the City's Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise . . . and only to the extent that those State- or federal-law decisions may provide guidance as to the uniquely broad and remedial' provisions of the local law.'" (Id. at 66-67, quoting Restoration Act §§ 1, 7). Thus, in analyzing the City HRL, the court must evaluate a claim of discrimination with due regard for its [*15]"uniquely broad and remedial purposes." (Williams, 61 AD2d at 79).

A claim under the City HRL must be made within three years of the adverse action (CPLR 214[2]; Admin. Code § 8-501[d]).

A. Hostile work environment

Under the Restoration Act, conduct need not be "severe" or "pervasive" to constitute a hostile work environment, although "petty, slight, or trivial inconvenience[s]" are not actionable. (Williams, 61 AD3d at 80).

Again, Vrettos's derogatory comments to Kumaga were uttered more than three years before the commencement of the action, and there is no indication that anyone involved in the hiring panels was aware of them, and Kumaga's allegation that Reddan was on the August 2000 hiring panel is supported by the record. In any event, Kumaga's assertion that Vrettos's conduct was "part of a continuing pattern of discrimination" is too conclusory to warrant a trial even under the City HRL, which does not excuse a party opposing summary judgment from connecting the untimely discriminatory conduct to the timely claims. (Id. at 80-81 [dismissing plaintiff's claims under City HRL because she failed to join pre-limitation conduct to actionable conduct]).

Njoku's allegations also fail, even under the City HRL, as he has not shown that Arafat's negative assessment and harassment were motivated by a bias based on race or national origin, and his own assessment that he did not merit Arafat's treatment does not bring his complaint within the purview of the City HRL which is not a "general civility code." (Id. at 79).

B. Adverse employment action

The City HRL § 8-107 provides as follows:

1. Employment. It shall be an unlawful discriminatory practice:

(a) For an employer or an employee or agent thereof, because of the actual or perceived . . . race . . . national origin . . . to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions, or privileges of employment.

The elements of an adverse employment action claim under the City HRL are the same as those for a claim under the state and federal statutes. Thus, plaintiffs must demonstrate a causal link between the alleged conduct and the discriminatory action. (Fleming v Maxmara USA, Inc., 2010 WL 1170247, *3 [2d Cir 2010]; Smallen v New York Univ., NYLJ, July 30, 2009, at 26, col 1 [Sup Ct, New York County]).

Again, as plaintiffs were transferred to the Closeout Unit well over three years before they commenced the action, their claim that the transfers constitute adverse employment actions are time-barred and I need not determine whether the transfers constitute unlawfully discriminatory actions.

For the same reasons that plaintiffs' adverse employment discrimination claims fail under the state HRL, namely, the absence of a causal link between the conduct and the hiring decisions, the evidence of legitimate, non-discriminatory reasons for each hiring decision, and the absence of evidence that the hiring decisions were pretextual, so too do plaintiffs' claims under the City HRL, notwithstanding its broader application.

C. Retaliation

The City HRL § 8-107 provides as follows: [*16]

7. Retaliation. It shall be an unlawful discriminatory practice for any person engaged in any activity to which this chapter applies to retaliate or discriminate in any manner against any person because such person has (I) opposed any practice forbidden in this chapter, (ii) filed a complaint, testified or assisted in any proceeding under this chapter. . . The retaliation or discrimination complained of under this subdivision need not result in an ultimate action with respect to employment . . . or in a materially adverse change in the terms of conditions of employment . . . provided, however, that the retaliatory or discriminatory act or acts complained of must be reasonably likely to deter a person from engaging in protected activity.Kumaga argues that upon application of the more liberal City HRL, his retaliation claim survives summary dismissal because three months after complaining to Reddan about Vrettos's discriminatory treatment, he was turned down for a promotion by a panel on which Reddan sat. Again, the City HRL does not relieve him of the burden offering evidence in support of his claims. (Cf Joseph v Verizon New York Inc., NYLJ, July 2, 2009, at 25, col 1 [Sup Ct, New York County] [denying defendant's motion for summary judgment under City HRL given evidence indicating pretextual reasons for adverse employment action]). Kumaga has, however, shown no causal link between his protected activity and the failure to promote him. (See Williams, 61 AD3d at 71).

However, as noted (supra , III.C.), defendant has not demonstrated that Njoku's termination was part of the restructuring plan absent evidence that he was among the laid off personnel. That he was laid off shortly after the service of the summons and complaint suffices to invoke the broad, remedial purposes of the City HRL.

V. CONCLUSION

Accordingly, it is hereby

ORDERED, that defendant's motion for an order summarily dismissing this action is granted as to all causes of action except for that advanced by plaintiff Njoku for unlawful retaliation.

_______________________________

Barbara Jaffe, JSC

DATED:April 2 , 2010

New York, New York