James v. Cuny-John Jay College

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-------------------------------------- X

:

TERRELL JAMES, :

:

Plaintiff, : 19cv644 (DLC)

:

-v- : OPINION AND ORDER

:

NEIL STEWART and SUSAN JEFFREY, :

:

Defendants. :

:

-------------------------------------- X

APPEARANCES:

For plaintiff Terrell James:

Lennox S. Hinds

75 Maiden Lane, Suite 222

New York, NY 10038

For defendants Neil Stewart and Susan Jeffrey:

Mark E. Klein

Office of the Attorney General of the State of New York

28 Liberty Street

New York, NY 10005

DENISE COTE, District Judge:

Terrell James, a maintenance worker, has brought employment

discrimination claims against two of his supervisors at City

University of New York – John Jay College (“John Jay”). Those

two supervisors, Neil Stewart and Susan Jeffrey, have moved for

summary judgment. For the reasons set forth below, the motion

is granted.

Background

This is the second of two lawsuits filed by James alleging

employment discrimination. James filed the first action on

March 5, 2018 against John Jay and Stewart. It was dismissed on

November 20, 2018, for his failure to prosecute. Dkt. No. 59,

James v. John Jay College-CUNY, et al., No. 18cv1777(DLC)

(“James I”). This sequence of events is described in an Opinion

of April 20, 2020 (the “April 20 Opinion”), which is

incorporated by reference. James v. John Jay College, No.

19cv644(DLC), 2020 WL 1911211 (S.D.N.Y. Apr. 20, 2020).

James filed this second action on January 23, 2019. The

application of res judicata principles barred his claims to the

extent they arose before November 9, 2018, which is the date on

which James had a final opportunity to amend his pleading in

James I. Id. at *3.

The April 20 Opinion dismissed many of James’ claims. The

claims in this action that survived a motion to dismiss were

claims of discrimination, retaliation, and a hostile work

environment -- arising under 42 U.S.C. § 1983, the New York

State Human Rights Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”),

and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-

101 et seq. (“NYCHRL”) -- stemming from allegations that Jeffrey

assigned James on May 3, 2019 the task of cleaning elevator door

tracks and required him on December 5, 2019 to work alone on a

ladder above twenty feet. Id. at *6. The parties also agreed

that James adequately pleaded claims of discrimination,

retaliation, and a hostile work environment under § 1983, the

NYSHRL, and the NYCHRL based on allegations that between August

and November 2019, Jeffrey issued work orders to James for

repairs to items not needing repair.1

Each of these claims is premised on an assertion that the

defendants discriminated against James on account of his race.

James and both defendants identify themselves as African

American.

James has worked since February 2013 as a maintenance

worker in the Facilities Management Department at John Jay.

Stewart was Administrative Superintendent of the Department

until January 7, 2019, when he was replaced by Jeffrey.2 It was

the job of the Administrative Superintendent to issue work

orders to maintenance workers to do repair and preventive

maintenance jobs. David Stanley, who held the title of

1 Because Jeffrey’s motion to dismiss did not seek to dismiss

claims stemming from the alleged improper issuance of work

orders for items not needing repair, the April 20 Opinion did

not address this issue, and it was assumed that the parties

agreed that these allegations adequately stated a claim.

2 Even if the claims against Jeffrey survived summary judgment,

the claims against Stewart would not. The events of which James

complains occurred after Jeffrey replaced Stewart.

Supervisor, was James’s direct supervisor. During the period at

issue, there were eight maintenance workers at John Jay. Three

identify as African American, three as Latino and two as white.

Also during the period at issue, each maintenance worker

was assigned a territory for which the worker was primarily

responsible. Since at least 2016, James’ assigned territory was

floors 1 through 5 of a campus building referred to as the New

Building. As this moniker suggests, that building is newer than

many of the other buildings on John Jay’s campus, and

maintenance workers assigned to the New Building were typically

asked to do a somewhat different mix of tasks than maintenance

workers assigned to the other buildings, commensurate with the

differing needs of old and new buildings.

The claim that James was required to clean elevator tracks

on May 3, 2019 arose out of a grievance that the union filed in

2016 on behalf of six of John Jay’s eight maintenance workers.

James was among the six workers complaining about that

assignment as out-of-title work. Among those six workers were

workers identifying as white, African American, and Latino. In

2017, a settlement agreement acknowledged that the removal of

obstructive debris from elevator door tracks was within the

employees’ job description. On May 13, 2019, however, the union

again filed a grievance claiming on behalf of maintenance

workers, including James, that clearing debris from elevator

door tracks was outside their job description. In the weeks

leading up to May 13, 2019, white, African American, and Latino

workers were assigned to clean elevator door tracks, and since

the pendency of that grievance, no maintenance worker has been

assigned such work.

With respect to the claim that James was required to work

alone on tall ladders, the Facilities Department has ladders and

motorized lifts available to its maintenance workers. Where

those are not appropriate, a maintenance worker may request that

a scaffold be erected to provide a steady place to stand. There

is no evidence of any request for the erection of scaffolding by

James or any other maintenance worker that was ever denied.

Stewart, Jeffrey and John Jay Director of Facilities Management

Anthony Bracco are not aware of any instance where a request was

denied.3 In any event, the December 5, 2019 work order which was

the focus of the complaint initiating this lawsuit assigned

James the task of changing light bulbs. It did not dictate how

that work should be performed. Indeed, James has pointed to no

3 James has offered testimony from Stanley to the effect that

Stewart and Jeffrey should have known that scaffolding was

necessary for some work even if no request for scaffolding was

made. Even if this testimony were admissible, and it is not

clear that it is, it does not raise a question of fact regarding

the defendants’ evidence that no request for scaffolding was

ever denied.

work order that dictates how to perform a task; the orders

simply assign the task and leave the accomplishment of the task

to the discretion of a maintenance worker.

Discussion

The defendants have moved for summary judgment on all

claims. James has opposed the motion for summary judgment and

moved for leave to amend his complaint. For the following

reasons, the motion for summary judgment is granted and the

motion for leave to amend is denied.

I. Motion for Summary Judgment4

Summary judgment may only be granted when “the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R.

4 This Opinion grants summary judgment to the defendants on the

merits of James’ claims. The defendants have also argued that

they are entitled to summary judgment because, even if James’

claims succeed on the merits, they are entitled to qualified

immunity. See Horn v. Stephenson, 11 F.4th 163, 168–69 (2d Cir.

2021) (“Qualified immunity shields [a public] official from

civil liability [under § 1983] unless: [1] the official violated

a statutory or constitutional right that [2] was clearly

established at the time of the challenged conduct.”) (citation

omitted). Because the Court concludes that the defendants are

entitled to summary judgment on the grounds that they did not

violate James’ constitutional rights by discriminating against

him, it need not consider whether the defendants are entitled to

qualified immunity. Pearson v. Callahan, 555 U.S. 223, 236

(2009) (holding that district courts may “exercise their sound

discretion in deciding which of the two prongs of the qualified

immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.”).

Civ. P. 56(a). “To present a genuine issue of material fact

sufficient to defeat a motion for summary judgment, the record

must contain contradictory evidence such that a reasonable jury

could return a verdict for the nonmoving party.” Horror Inc. v.

Miller, 15 F.4th 232, 241 (2d Cir. 2021) (citation omitted).

Material facts are facts that “might affect the outcome of the

suit under the governing law.” Choi v. Tower Rsch. Cap. LLC, 2

F.4th 10, 16 (2d Cir. 2021) (citation omitted). In considering

a motion for summary judgment, a court “construe[s] the facts in

the light most favorable to the non-moving party and must

resolve all ambiguities and draw all reasonable inferences

against the movant.” Kee v. City of New York, 12 F.4th 150, 158

(2d Cir. 2021) (citation omitted).

A. Failure to Comply with Local Rules

In the Southern District of New York, the Local Civil

Rules provide that “a party opposing a motion for summary

judgment shall file a short and concise statement of the

material facts in dispute accompanied by citation to evidence

which would be admissible.” Monahan v. New York City Dep't of

Corr., 214 F.3d 275, 292 (2d Cir. 2000) (citing Local Civil Rule

56.1) (emphasis in original). If a non-moving party fails to

“specifically controvert[]” a paragraph in the moving party’s

Local Rule 56.1 statement by providing a counterstatement

consisting of “correspondingly numbered paragraph[s]” with

citations to admissible evidence, paragraphs in the moving

party’s Local Rule 56.1 statement are “deemed to be admitted for

purposes of the motion.” Local Civil Rule 56.1(c). The

plaintiff’s Local Rule 56.1 counterstatement fails to comply

with these requirements: while the plaintiff submitted a Local

Rule 56.1 counterstatement, many of its paragraphs consist of

bare denials of assertions made in the defendants’ Local Rule

56.1 statement, and others cite only to irrelevant or

inadmissible evidence.

The plaintiff has, through his failure to comply with the

dictates of Local Rule 56.1, admitted the defendants’ statements

of material fact for the purposes of their motion for summary

judgment. Because summary judgment may be granted when there

are no disputes of material fact, the plaintiff’s failure alone

is sufficient to grant the motion for summary judgment. But

even if it were the case that the plaintiff had met his

obligations under Local Rule 56.1, the defendants would

nonetheless be entitled to summary judgment.

B. Federal Discrimination Claim

In opposition to the motion for summary judgment, James

only addresses a few of the claims on which the defendants have

sought summary judgment. James has therefore abandoned those

claims not addressed in his opposition to this motion. The

abandoned claims include his claims stemming from his assignment

to clean elevator tracks5 and his § 1983 race discrimination

claim.

James not only fails to discuss his § 1983 race

discrimination claim, he has also failed to offer evidence to

support it. To prevail on a claim of race discrimination in

violation of § 1983, a plaintiff must demonstrate that “(1) she

was within the protected class; (2) she was qualified for the

position; (3) she was subject to an adverse employment action;

and (4) the adverse action occurred under circumstances giving

rise to an inference of discrimination.” Walsh v. New York City

Hous. Auth., 828 F.3d 70, 75 (2d Cir. 2016) (citation omitted).6

5 James no longer asserts that the assignment to clean elevator

tracks was discriminatory. He acknowledges that the dispute

over whether maintenance workers could be assigned to clean

elevator tracks was a union grievance brought on behalf of

several maintenance workers and that the dispute was being

handled through the prescribed process for resolving disputes

between John Jay maintenance workers, their union, and John Jay.

Moreover, James alone did not bring the grievance over the

elevator door track assignments: three other John Jay

maintenance workers also objected to this assignment as outside

of the scope of their duties, and some of these workers were

white or Latino.

6 This framework is also used to address employment

discrimination claims against private actors under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. But

“the elements of the substantive cause of action are the same

under both” Title VII and § 1983. Feingold v. New York, 366

F.3d 138, 159 (2d Cir. 2004) (citation omitted).

He has not offered evidence that any of the work assignments of

which he complains constitutes a materially adverse employment

action or identified evidence supporting an inference of

discrimination in connection with his work assignments.

For instance, although James points to ten work orders in

which he was required to change light bulbs, none of those work

orders indicates that he should use a ladder or dictates any

particular equipment or method for accomplishing the assignment.

James has offered no evidence that he or any other maintenance

worker was ever denied a request to erect scaffolding, and

neither Stewart nor Jeffrey is aware of any such instance.

Finally, contrary to James’ assertion, there are work orders in

which other maintenance workers who James classifies as white

were required to change light bulbs in stairwells where the

ceiling height was 14’ or higher.

C. Federal Hostile Work Environment Claim

There are two claims from his initial complaint that James

addresses in his opposition to this motion. James first opposes

dismissal of his hostile work environment claim. He contends

that this claim survives to the extent that it is premised on

his allegations that he was required to work on tall ladders and

given work orders for work that was not needed. “To prove a

hostile work environment claim . . . a plaintiff must establish

that 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.” Legg v. Ulster

Cty., 979 F.3d 101, 114 (2d Cir. 2020) (citation omitted). A

single incident of hostile conduct may in some circumstances

give rise to a hostile work environment claim, “but to do so it

must be extraordinarily severe.” Agosto v. New York City Dep't

of Educ., 982 F.3d 86, 102 (2d Cir. 2020) (citation omitted).

“Furthermore, the plaintiff must demonstrate that the [hostile]

conduct occurred because of his protected status.” Id.

(citation omitted).

James has failed to offer evidence to show that any of his

assignments constituted a sufficiently severe event or was part

of a pervasive pattern sufficient to create a hostile work

environment. He has also failed to offer evidence from which a

jury could determine that these assignments were given to him

because of his race. And in any event, “[c]omplaints about work

assignments” generally do not give rise to a successful hostile

work environment claim. See Farsetta v. Department of Veterans

Affairs, No. 16cv6124(DLC), 2017 WL 3669561, at *7 (S.D.N.Y.

Aug. 24, 2017) (citing Vega v. Hempstead Union Free Sch. Dist.,

801 F.3d 72, 85 (2d Cir. 2015)).

D. Federal Retaliation Claim

James contends as well that his retaliation claim survives.

He appears to contend that he was retaliated against for filing

this action in January 2019, filing James I in 2018, filing a

complaint with the Equal Employment Opportunity Commission in

2017, and objecting to a work schedule change that occurred in

2017. He identifies the retaliatory treatment as the

requirement that he work alone on tall ladders in December 2019

and the work orders he was given between August and November

2019 that instructed him to make repairs when there was no work

to be done. To prove retaliation, a plaintiff must show “(1) he

was engaged in protected activity, (2) the employer was aware of

that activity, (3) the employee suffered a materially adverse

action, and (4) there was a causal connection between the

protected activity and that adverse action.” Agosto, 982 F.3d

at 104 (citation omitted).

The defendants are entitled to summary judgment because

James has not shown a causal connection between a protected

activity and an adverse employment action. A plaintiff may

establish the causation element either through “direct evidence

of causation” or indirectly “by showing that the protected

activity was closely followed in time by the adverse employment

action.” Zann Kwan v. Andalex Group LLC, 737 F.3d 834, 845 (2d

Cir. 2013) (citation omitted). Neither of the 2019 events

occurred sufficiently close in time to the filing of this

litigation in January 2019 to support an inference of

retaliation. “[T]emporal proximity must be very close,” and the

Second Circuit has suggested that a period of five months is at

the outer edge of what is acceptable to establish an inference

of causation. Abrams v. Department of Public Safety, 764 F.3d

244, 254 (2d Cir. 2014) (citation omitted). Here, the time gap

is eight months. And James has not otherwise offered any direct

evidence that Jeffrey acted with retaliatory animus.

James has also failed to offer evidence that any of these

actions constituted a material adverse action for purposes of a

retaliation claim. To establish the adverse action element of a

retaliation claim, a plaintiff must offer proof that “the

alleged adverse action to which the plaintiff was subjected

could well have dissuaded a reasonable employee in his position

from complaining of unlawful discrimination.” Davis-Garett v.

Urb. Outfitters, Inc., 921 F.3d 30, 44 (2d Cir. 2019) (citation

omitted). As already described, James has failed to offer

evidence that he was required to use a tall ladder. The work

orders to which he points do not direct use of specific

equipment. And because the defendants did not require him to

use a tall ladder, they necessarily could not have required him

to use a tall ladder to dissuade him from complaining of

unlawful discrimination.

In support of his claim that he was issued work orders

between August and November 2019 to perform work when none was

required to be done, James relies in part on testimony from his

immediate supervisor Stanley. Stanley testified that, in his

view, an Administrative Superintendent should inspect the work

area to determine what sort of work order is necessary before

issuing a work order. Beyond Stanley’s personal views regarding

how maintenance work should be conducted at John Jay, however,

James has failed to offer evidence that either defendant was in

fact responsible for inspecting work areas before they assigned

the tasks to be done. It is undisputed that faculty and other

employees send requests for maintenance work to the

Administrative Superintendent. The defendants have shown that

it was the role of a maintenance worker, as opposed to the role

of the Administrative Superintendent, to evaluate an assigned

task and determine how to accomplish any work that needed to be

done.

But even if Stanley is correct that the Administrative

Superintendent failed to fulfill her duties to inspect work

areas before assigning duties to maintenance workers, James has

not offered any evidence that he was treated differently from

any other worker -– including workers who were not members of

his protected class and who did not engage in any protected

activity –- in this regard. Put another way, to survive summary

judgment on this theory, James would have to provide evidence

that the Administrative Superintendent was shirking her duty to

inspect potential work sites before assigning tasks to

maintenance workers with respect to James alone, as opposed to

shirking her duty with respect to all of the maintenance

workers. James has not provided that evidence. And because he

has not shown that he was treated differently than any other

worker with respect to assessment of potential tasks, he has not

shown that the defendants treated him differently than other

workers in an effort to retaliate against him for protected

activity.

E. State Law Claims

James also brings hostile work environment and retaliation

claims under the NYSHRL and the NYCHRL. “The standards for

evaluating hostile work environment and retaliation claims are

identical under [federal law] and the NYSHRL.” Kelly v. Howard

I. Shapiro & Assocs. Consulting Engineers, P.C., 716 F.3d 10, 14

(2d Cir. 2013). Because the defendants are entitled to summary

judgment on James’ federal hostile work environment and

retaliation claims, they are also entitled to summary judgment

on his parallel NYSHRL claims.

Claims under the NYCHRL, by contrast, must be analyzed

“separately and independently from any federal and state law

claims” because the NYCHRL is to be construed “broadly in favor

of discrimination plaintiffs, to the extent that such a

construction is reasonably possible.” Mihalik v. Credit

Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir.

2013) (citation omitted). But even under this broader standard,

the defendants are entitled to summary judgment on James’ NYCHRL

hostile work environment and retaliation claims.

“[T]o prevail on a retaliation claim under the NYCHRL, the

plaintiff must show that she took an action opposing her

employer's discrimination, and that, as a result, the employer

engaged in conduct that was reasonably likely to deter a person

from engaging in such action.” Id. at 112 (citation omitted).

For the reasons set forth above in the discussion of James’

federal retaliation claims, he has not shown that the defendants

engaged in conduct that was reasonably likely to deter him from

taking action that opposed discrimination. And to prevail on a

hostile work environment claim, James “need only show

differential treatment -- that [he] is treated ‘less well’ --

because of a discriminatory intent.” Id. at 110. As discussed

in the context of his federal discrimination and hostile work

environment claims, James has not shown that he was treated

differently from any other workers.

II. Motion to Amend

In opposing the motion for summary judgment, James only

briefly discusses the claims brought in his complaint. Instead,

his memorandum in opposition to this motion principally relies

upon a request to amend his pleading to assert a new claim of

race discrimination. In his memorandum, he requests for the

first time in this action that he be allowed to amend his

complaint to assert that his assignment to his territory was

discriminatory. He claims that a white maintenance worker was

assigned to a territory composed of only three (not five) floors

with fewer classrooms and “other work-generating areas.”

James has already twice amended his complaint, so any

further amendment requires leave of Court.7 Fed. R. Civ. P.

7 James styles his motion to amend as an amendment to conform his

pleading to the proofs made pursuant to Rule 15(b), Fed. R. Civ.

P. Although Rule 15(b) refers only to amendments occurring

during or after trial, the Second Circuit has permitted the

application of Rule 15(b) at summary judgment, even though such

an application is seemingly inconsistent with the text of Rule

15(b). See, e.g., Cruz v. Coach Stores, Inc., 202 F.3d 560, 570

(2d Cir. 2000); Clomon v. Jackson, 988 F.2d 1314, 1323 (2d Cir.

1993); see also Myers v. Moore, 326 F.R.D. 50, 60-61 (S.D.N.Y.

2018) (highlighting the inconsistency between the text of Rule

15(b) and the use of Rule 15(b) to allow for amendment at the

summary judgment stage). The Court construes James’ motion for

leave to amend as one under Rule 15(a) because, in any event,

15(a)(2). Although a court “should freely give leave [to amend]

when justice so requires,” id., leave to amend may be denied

“upon a showing of undue delay, bad faith, dilatory motive, or

futility.” Sacerdote v. New York University, 9 F.4th 95, 115

(2d Cir. 2021) (citation omitted).

James’ request to amend is denied for several independent

reasons. First, his proposed new claims are barred by the

doctrine of res judicata, so any amendment would be futile. By

his own admission, James was assigned his territory at least as

early as 2016. Therefore, he was required to bring any claim

that his territory assignment was discriminatory in the action

he filed in 2018. James, 2020 WL 1911211, at *3-5. And even if

this claim were not barred by res judicata, it would be futile

because James does not assert that either defendant had any

responsibility for giving James this particular assignment.

Further, this request to amend is untimely. Allowing James to

amend his complaint following the close of discovery in this,

his second lawsuit, would be highly prejudicial. Finally, James

has not shown that any new claim would be meritorious. While he

claims that comparable white workers were assigned to cover John

the standards for evaluating Rule 15(a) and Rule 15(b) motions

overlap, and the result of the analysis would be the same

regardless of whether James’ motion is construed as one under

Rule 15(a) or Rule 15(b). Hillburn by Hillburn v. Maher, 795

F.2d 252, 264 (2d Cir. 1986).

Jay buildings with fewer than five floors while he was assigned

to cover five floors, James was assigned to maintain the New

Building, while these purportedly comparable white workers were

assigned to do maintenance work in older buildings that

necessitated more tasks.

Conclusion

The defendants’ motion for summary judgment is granted.

The Clerk of Court is directed to enter judgment for the

defendants and close this case.

Dated: New York, New York

November 16, 2021

DENISE COTE

United States District Judge

19