Caesar v. Village of Mineola

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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CARL CAESAR,

Plaintiff, MEMORANDUM & ORDER

22-CV-0841(JS)(ST)

-against-

VILLAGE OF MINEOLA, VILLAGE OF MINEOLA

PARKS DEPARTMENT, AND THOMAS RINI,

Defendants.

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For Plaintiff: Carl Caesar, Pro Se

111-42 167th Street

Jamaica, New York 11433

For Defendants: Brian S. Sokoloff, Esq.

Chelsea Ella Weisbord, Esq.

Sokoloff Stern LLP

179 Westbury Avenue

Carle Place, New York 11514

SEYBERT, District Judge:

Pro se plaintiff Carl Caesar (“Plaintiff”) commenced

this action against the Village of Mineola (“the Village”), the

Village of Mineola’s Parks Department (“Parks Department”), and

Thomas Rini (“Mr. Rini,”) (collectively, the “Defendants”).

Plaintiff’s Amended Complaint purports to allege discrimination

claims based upon Plaintiff’s race in violation of Title VII of

the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et

seq., and New York Executive Law § 296 et seq. (“NYHRL”). (See

generally Am. Compl., ECF No. 16.)

Presently before the Court is Defendants’ motion for

summary judgment (the “Motion”). (See Motion, ECF No. 42.) For

the reasons that follow, Defendants’ Motion is GRANTED, which

disposes of all federal claims in this case. Consequently, the

Court declines to exercise supplemental jurisdiction over

Plaintiff’s remaining state law claims.

BACKGROUND

Before discussing the factual record and the merits of

Defendants’ Motion, the Court first addresses the effect of

Plaintiff’s repeated noncompliance with both Local Rule 56.1 of

the United States District Courts of the Southern and Eastern

Districts (“Local Rule 56.1”) and the Court’s Orders in this case.

I. Procedural History

On September 26, 2019, Plaintiff served a notice of claim

on the Village asserting claims of racial discrimination, hostile

work environment, and retaliation. (Ex. C, ECF No. 42-4.) On

March 9, 2020, Plaintiff filed a charge of discrimination with the

United States Equal Employment Opportunity Commission (“EEOC”)

(Ex. D, ECF No. 42-5), and on December 23, 2021, Plaintiff received

a right to sue letter. (Am. Compl. ¶¶ 5, 6.)

On February 15, 2022, represented by Counsel, Plaintiff

filed his original Complaint in this action alleging

discrimination, retaliation, and hostile work environment claims

pursuant to Title VII and the NYHRL. (Compl., ECF No. 1.) On

October 5, 2022, the Court denied Defendants’ letter motion (ECF

No. 14) seeking permission to file a motion to dismiss, and granted

Plaintiff leave to file an amended complaint. (Oct. 5, 2022, Elec.

ORDER.) Plaintiff filed his Amended Complaint on November 4, 2022.

(ECF No. 16.) On November 11, 2022, Defendants renewed their prior

letter motion seeking permission to file a motion to dismiss. (ECF

No. 17.) On February 9, 2023, the Court granted Plaintiff’s

Counsel’s motion to withdraw as attorney (see ECF No. 20);

thereafter, on April 12, 2023, Plaintiff reported he would proceed

pro se. (See ECF No. 23.)

On May 17, 2023, Defendants filed a pre-motion

conference letter seeking permission to file a motion for summary

judgment. (See ECF No. 24.) Plaintiff did not respond to that

letter motion; thereafter, the Court proceeded to set a briefing

schedule on Defendants’ anticipated summary judgment motion. (See

Sept. 19, 2023 Elec. ORDER.) Pursuant to that briefing schedule,

Defendants served Plaintiff with their moving papers on October

20, 2023. (See ECF No. 27.) Plaintiff failed to serve any opposing

papers. (See Case Docket, in toto.)

On December 8, 2023, Defendants filed their Motion. (See

ECF No. 28.) That same day, Defendants served and filed a letter

requesting the Motion be deemed fully submitted and unopposed.

(See ECF No. 29.) On December 11, 2023, the Court deferred ruling

on Defendants’ request because it was “unclear whether Defendants

[] complied with EDNY Local Rule 56.2” which “requires a Defendant

. . . to ‘serve and file as a separate document, together with the

papers in support of the motion,’ a Notice to Pro Se Litigant along

with the full texts of Fed. R. Civ. P. 56 and Local Civil Rule

56.1,” which non-compliance “is grounds for denying the underlying

[M]otion.” (Dec. 11, 2023 Elec. ORDER.) On December 21, 2023,

Defendants filed an affidavit of service of the Local Rule 56.2

Notice to Pro Se litigant. (See ECF No. 30.) Given Defendants’

failure to serve the requisite Local Rule 56.2 Notice prior to

December 21, 2023, the Court denied Defendants’ request to consider

the Motion fully briefed; instead, it issued a new briefing

schedule affording Plaintiff until January 22, 2024 to serve his

Opposition to the Motion on Defendants. (See Dec. 21, 2023 Elec.

ORDER.) Notwithstanding service of that Order upon Plaintiff (see

Aff. of Serv., ECF No. 31), Plaintiff again failed to serve an

Opposition to the Motion. (See Case Docket, in toto.)

On February 12, 2024, Defendants served and filed a

Renewal Letter requesting the Court either (1) deem their Motion

fully briefed and unopposed or (2) alternatively, dismiss the

action with prejudice for failure to prosecute and comply with

Court orders. (See Renewal Letter, ECF No. 32.) Plaintiff did

not file any response to Defendants’ Renewal Letter.1 (See Case

1 Defendants noted in their Renewal Letter that on December 21,

2023, they re-served Plaintiff with a copy of their Motion papers

and referenced case law, along with a Local Rule 56.2 Notice, via

email, regular mail, and certified mail. (See Renewal Letter at

2 n.1.) However, Plaintiff refused to accept the mailings, which

Docket, in toto.) By Order to Show Cause (“OSC”), on August 1,

2024, the Court put Plaintiff on notice that it deemed Defendants’

Renewal Letter as a motion to dismiss for failure to prosecute

(hereafter, the “Dismissal Motion”), and provided Plaintiff one

final opportunity to oppose the Dismissal Motion. (OSC, ECF No.

34.) The OSC provided Plaintiff until August 16, 2024 to oppose

Defendants’ Dismissal Motion for Plaintiff’s failure to prosecute

and warned Plaintiff that “[f]ailure to timely respond to

Defendants’ Dismissal Motion: (1) will result in the Court ruling

upon said Dismissal Motion as unopposed; and (2) may result in

dismissal of this case without further notice for failure to

prosecute.” (Id. at 6.) On August 1, 2024, Defendants served the

OSC on Plaintiff by first class mail, overnight mail, certified

mail, and email. (See ECF No. 35.)

By letter dated August 15, 2024, Plaintiff timely

responded to the OSC; he asked the Court not to dismiss his case,

stating he had “endured various incidents of discrimination and

harassment” and had “dates, times and images which [he] would like

the opportunity to share with the courts.” (Pl.’s OSC Response,

ECF No. 36.) Plaintiff enumerated three examples “of the

harassment and discriminatory behavior [he] was subject to over

the years,” purportedly by three different coworkers. (See id.)

were “returned to sender” and deemed “undeliverable.” (Id.) There

was no indication that service by email was not effectuated.

The first incident purportedly occurred in 2016 or 2017 when a

coworker stated he was going to hang Plaintiff from a tree

(hereafter, the “Hanging Comment Incident”). (See id.) The second

incident purported occurred on October 9, 2019 when another

coworker made a comment to the effect that “all black women stink”

(hereafter, the “Stink Comment Incident”). (See id.) The third

incident purportedly also occurred on October 9, 2019 when yet, a

third coworker, Dylan J. Savarese, sent a text with an offense

picture and caption (hereafter, the “Charcoal Text Incident”;

together with the Hanging Comment Incident and the Stink Comment

Incident, the “Racial Comments Incidents”). (See id.) He also

attached a copy of a picture of a man pointing a gun at a child

with the caption, “[w]hen you’re barbecuing and the charcoal runs

away.” (Id. at 2.) Handwritten above the picture’s caption is

the statement: “This was send to ME by DyLAN J. SAVARESE on

10/9/2019 by text.”2 (See id.)

In ruling on Defendants’ Renewal Letter, the Court

stated:

Here, given Defendants have moved for

summary judgment, which they are entitled to

do pursuant to Rule 56(a) of the Federal Rules

of Civil Procedure, if Plaintiff seeks to

proceed with this action, as his OSC Response

indicated, he is required to respond. The

“Notice to Pro Se Litigant Opposing Motion for

Summary Judgment” (hereafter, the “Rule 56.2

2 The Court presumes this picture is the image in the text

referenced in the Charcoal Text Incident.

Notice”), required by Local Civil Rule 56.2,

explains as much. In pertinent part, the

Notice states:

The defendant in this case has

moved for summary judgment pursuant

to Rule 56 of the Federal Rules of

Civil Procedure. This means that

the defendant has asked the Court to

decide this case without a trial,

based on written materials,

including affidavits, submitted in

support of the motion. THE CLAIMS

YOU ASSERT IN YOUR COMPLAINT MAY BE

DISMISSED WITHOUT A TRIAL IF YOU DO

NOT RESPOND TO THIS MOTION ON TIME

by filing sworn affidavits and/or

other documents as required by Rule

56(c) of the Federal Rules of Civil

Procedure and by Local Civil Rule

56.1 . . . .”

(Renewal Order, ECF No. 37, at 5 (quoting Local Civil Rule 56.2

Notice (emphasis added)).) The Court further explained the purpose

of the Local Civil 56.2 Notice and “[t]he very reason this Court

initially denied Defendants’ Summary Judgment Motion was because

Defendants had not also served Plaintiff with the requisite Rule

56.2 Notice.” (Id. at 6 (citing Dec. 21, 2023 Elec. ORDER, and

Dec. 11, 2023 Elec. ORDER (deferring ruling on Defendants’ Summary

Judgment Motion because it was unclear whether Defendants had

served the Rule 56.2 Notice).) The Court then summarized

subsequent procedural history of the case, leading up to and

including Plaintiff’s OSC Response. (See id.) Having considered

said Response, the Court determined it was “sufficient to show

cause why the Court should not dismiss Plaintiff’s case”, but “not

sufficient to defeat Defendants’ Summary Judgment Motion.” (Id.

at 7.) See Fed. R. Civ. P. 56(c). Significantly, as to the

Summary Judgment Motion, the Court found, from Plaintiff’s OSC

Response, “it is not ‘reasonably apparent’ that Plaintiff

‘understood the nature of [Defendants’] [S]ummary [J]udgment

[M]otion and the consequences for not properly opposing it.’” (Id.

(omitting citations).) Therefore, for the following reasons, it

provided Plaintiff a second opportunity to oppose Defendants’

Summary Judgment Motion:

[T]he footnote in Defendants’ Renewal Letter

regarding their December 21, 2023 mailings of

their “motion papers and referenced case law,

along with a Local Rule 56.2 notice”, which

“Plaintiff apparently refused to accept” and

“which were ‘returned to sender’ and deemed

‘undeliverable’” (id. at 2 and note 1), gives

the Court pause. Given that disclosure, it is

again unclear whether Plaintiff had notice of

what was required of him to respond to

Defendants’ Summary Judgment Motion and what

would be the consequences of failing to do so.

(Id. at 8 (footnote omitted).) Further, in addition to

“afford[ing] Plaintiff a FINAL OPPORTUNITY to respond to

Defendant’s Summary Judgment Motion,” the Court provided Plaintiff

with the Local Rule 56.2 Notice, prefacing that he was “ON NOTICE”

regarding the implications of same. (Id. at 9-10 (quoting Local

Civil Rule 56.2 Notice (eff. July 1, 2024); emphases in original).)

In closing, the Court emphasized:

This is Plaintiff's FINAL OPPORTUNITY to

timely respond, in accordance with Federal

Rule of Civil Procedure 56(c) and Local Civil

Rule 56.1, to Defendant's Summary Judgment

Motion. Failure to do so will result in the

Court deeming the Summary Judgment Motion

unopposed and ripe for decision.

(Id. at 10 (emphases in original).) The corresponding briefing

schedule included the instruction that “Defendants re-serve

Plaintiff their summary judgment motion papers and the Local Rule

56.2 Notice”. (See id. at 11.) Moving papers were to be re-served

by September 20, 2024; Plaintiff’s Opposition was to be served by

October 25, 2024; and, Defendants’ Reply was to be served by

November 8, 2024. (See id.)

On September 19, 2024, in compliance with the Renewal

Order’s briefing schedule, Defendants re-served its Motion and the

required Local Rule 56.2 Notice upon on Plaintiff. (See Aff. of

Serv., ECF No. 39.) Once more, Plaintiff failed to timely serve

an Opposition. (See Case Docket, in toto.) Instead, on November

7, 2024, Plaintiff filed a letter hand-dated “10/30/24”; it was a

copy of his one-page OSC Response, albeit notarized, together with

a copy of the same picture attachment, but without the handwritten

statement (hereafter, the “Purported Opposition Letter”).

(Compare Pl.’s Oct. 30, 2024 Letter, ECF No. 40, with OSC Response,

ECF No. 36; see also Aff. of Serv., ECF No. 41 (“Affirmation of

Service” upon Defendants of “notarized affidavit”).) On November

8, 2024, Defendants served their Reply in further support of their

Motion. (ECF No. 43.) That same day, they filed their fully-

briefed Summary Judgment Motion. (See ECF No. 42.)

II. Procedural Defects

When moving for summary judgment, in addition to

complying with Federal Rule of Civil Procedure 56, the parties

must comply with Local Rule 56.1. See J. Seybert Ind. Rule III.A

(“Strict compliance with the Federal Rules of Civil Procedure,

Local Rules of the Eastern District of New York, and this Court’s

Individual Rules is required. Submissions not in compliance,

including, but not limited to untimely submissions, may not be

considered by the Court.”) (emphasis in original)), available at

https://www.nyed.uscourts.gov/pub/rules/JS-MLR.pdf. As the

Second Circuit has instructed, the Local Rule 56 “requirement is

strict”. T.Y. v. N.Y. City Dep’t of Educ., 584 F.3d 412, 418 (2d

Cir. 2009). Local Rule 56.1 requires a party moving for summary

judgment to submit a “separate, short and concise statement, in

numbered paragraphs, of the material facts as to which the moving

party contends there is no genuine issue to be tried.” Local Rule

56.1(a). The party opposing summary judgment, in turn, must file

“a correspondingly numbered paragraph admitting or denying, and

otherwise responding to, each numbered paragraph in the statement

of the moving party, and if necessary, additional paragraphs

containing a separate, short and concise statement of additional

material facts as to which it is contended that there exists a

genuine issue to be tried.” Local Rule 56.1(b). If the party

opposing summary judgment denies any of the facts in the movant’s

56.1 statement, the opposing party must support its position by

citing to admissible evidence in the record. See Local Rule

56.1(d). The movant’s asserted facts are deemed to be admitted

unless specifically controverted by a correspondingly numbered

paragraph in the responding statement required to be served by the

opposing party. See Local Rule 56.1(c); see also Local Rule

56.1(d) (“Each statement by the movant or opponent pursuant to

Rule 56.1(a) and (b), including each statement controverting any

statement of material fact, must be followed by citation to

evidence which would be admissible, set forth as required by Fed.

R. Civ. P. 56(c).”); see also F.D.I.C. v. Hodge, 50 F. Supp. 3d

327, 343 n.2 (E.D.N.Y. 2014) (citing Local Rule 56.1(d)).

Upon the failure to properly controvert a movant’s

statement of material fact, such statement “will be deemed to be

admitted for the purposes of the motion.” Local Rule 56.1(c); see

also Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d Cir. 2003)

(“If the opposing party then fails to controvert a fact so set

forth in the moving party’s Rule 56.1 statement, that fact will be

deemed admitted.”) (citation omitted)). It is not the role of the

Court to search the summary judgment record for evidence supporting

a nonmovant’s opposition. See N.Y.S. Teamsters Conf. Pension &

Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir.

2005) (recognizing authority of district courts to institute local

rules governing summary judgment submissions, which permits courts

“to efficiently decide” such motions “by relieving them of the

onerous task of ‘hunt[ing] through voluminous records without

guidance from the parties’”) (quoting Holtz v. Rockefeller & Co.,

258 F.3d 62, 74 (2d Cir. 2001).)

Further, pro se litigants are “not excused from meeting

the requirements of Local Rule 56.1.” Wall v. One Source Co., 678

F. Supp. 2d 170, 178 (S.D.N.Y. 2009); Manolis v. Brecher, No.

11-CV-2750, 2014 WL 642849, at *3 (S.D.N.Y. Feb. 14, 2014)

(“[Plaintiff’s] status as a pro se litigant does not relieve h[im]

of the duty of complying with federal and local rules” and “the

‘special solicitude’ frequently afforded to pro se litigants does

not excuse [a plaintiff’s] failure to comply with the requirements

of Local Rule 56.1.”) (citing Tracy v. Freshwater, 623 F.3d 90,

103 (2d Cir. 2010)).

Here, despite multiple opportunities to do so, Plaintiff

has failed repeatedly to comply with Local Rule 56.1, as well as

the Court’s orders. Indeed, Plaintiff has failed to specifically

controvert -- by a compliant Local Rule 56.1(c) responsive

statement, his Purported Opposition Letter or otherwise –- any of

Defendants’ Local Rule 56.1(a) statements of fact. Where “a party

fails to . . . properly address another party’s assertion of fact

. . . the court may . . . consider the fact undisputed for purposes

of the motion [and] grant summary judgment if the motion and

supporting materials—including the facts considered undisputed—

show that the movant is entitled to it.” Pennington v. D’Ippolito,

855 F. App’x 779, 781 (2d Cir. 2021) (citing FED. R. CIV. P. 56(e));

see also Millus v. D’Angelo, 224 F.3d 137, 138 (2d Cir. 2000)

(noting district court properly “granted summary judgment in favor

of defendants following plaintiff’s failure to deny, in accordance

with Rule 56.1 of the court’s local rules,” various allegations of

defendants). As such, the entirety of Defendants’ Rule 56.1

Statement will be deemed admitted for the purposes of deciding the

instant summary judgment Motion. See Local Civil Rule 56.1(c);

see also, e.g., Giannullo, 322 F.3d at 140; Ezagui v. City of N.Y.,

726 F. Supp. 2d 275, 285 n.8 (S.D.N.Y. 2010) (noting statements

which a nonmovant does “not specifically deny–with citations to

supporting evidence–are deemed admitted for purposes of [movant’s]

summary judgment motion”) (collecting cases).

Further, for clarity, the Court explains: Plaintiff has

not provided any admissible, sworn affidavits in opposition to

Defendants’ Motion. See, e.g., FED. R. CIV. P. 56(c)(4). His

Purported Opposition Letter is unavailing; while notarized, it is

neither presented in affidavit form nor sworn to under penalty of

perjury.3 See White v. Roosevelt Union, No. 15-CV-1035, 2023 WL

3 Furthermore, as stated supra, Plaintiff failed to submit the

Purported Opposition Letter in a timely manner. Nonetheless, as

4420117 at 2 n.2 (E.D.N.Y. July 10, 2023) (citing DeMars v.

O’Flynn, 287 F. Supp. 2d 230, 242 (W.D.N.Y. 2003)):

By definition, an affidavit is a sworn

document, declared to be true under the

penalties of perjury . . . . To be considered

in connection with a summary judgment motion,

the rule requires that submissions in the form

of statements be prepared as affidavits

. . . . Failure to submit materials in this

form will cause the submission to be

disregarded by the court in its consideration

of the pending motion.

Id. (quoting 11 MOORE’S FEDERAL PRACTICE, § 56.14(1)(b) (Matthew Bender

3d ed.)); see also Flowers v. Abex Corp., 580 F. Supp. 1230, 1233

n.2 (N.D. Ill. 1984) (“Merely notarizing the signature does not

transform a letter into an affidavit.”). Therefore, the Purported

Opposition Letter is insufficient to defeat summary judgment.

Hence, the Court accepts Defendants’ facts as admissions

to the extent they are supported by admissible evidence.

III. Relevant Factual History

A. The Village and its Department of Public Works, Generally

The Village is an incorporated municipality located in

Nassau County. (Defs. 56.1 Stmt. ¶ 1.) Plaintiff, an African

American man, was hired by the Village in 2007 as a part-time

custodian at Village Hall. (Id. ¶¶ 2, 19.) The Village maintains

an Equal Employment Opportunity policy that prohibits

discussed infra, even if the Court considered the Purported

Opposition Letter, it fails to create a genuine dispute of any

material fact.

discrimination and harassment based on “race, color, religion, sex

. . . or status in any group protected by State or local law in

the workplace.” (Defs. 56.1 Stmt. ¶ 3.) It also maintains an

anti-retaliation policy rendering it unlawful to take adverse

action against an employee because of the employee’s protected

activity. (Id. ¶ 6.)

The Village’s Department of Public Works (“Public

Works”) consists of the Parks Department, as well as the Highway,

Sanitation, Water and Sewer, and Recreation Departments. (Id.

¶ 7.) Defendant Mr. Rini has been the Superintendent of Public

Works since 2000. (Id. ¶ 12.) As the Superintendent, Mr. Rini

oversees all the Departments and employees within Public Works.

(Id.) The Deputy Superintendent of Public Works assists Mr. Rini

in planning and directing the activities of the Departments. (Id.

¶ 13.) Each Department within Public Works has its own supervisor

who oversees the day-to-day operations of his or her respective

Department. (Id. ¶ 14.)

The Parks Department is responsible for the maintenance

of the park and recreation facilities in the Village. (Id. ¶ 11.)

The Parks Department consists of five employees who maintain the

Village’s two public parks: three employees at Wilson Park and two

employees at Memorial Park. (Id. ¶¶ 16-17.) During the summer

season, the Village typically staffs the Parks Department with

additional seasonal workers. (Id. ¶ 23.) The Highway Department

supplements the Parks Department by maintaining the trees and

plants and cutting the grass at the parks. (Id. ¶ 18.)

Additionally, when the Parks Department is short-staffed, Mr. Rini

directs the Highway Department employees to assist with some of

the work in the parks. (Id. ¶ 22.)

Sometimes the Village struggled to secure seasonable

help for the Parks Department since it was not the most popular

location for prospective summer employees. (Id. ¶ 25.) Plaintiff

had seasonal help in Wilson Park during the Summers of 2013, 2014,

2015, 2017, and 2018. (Id. ¶ 24.) Specifically, the Village

assigned one seasonal worker to Wilson Park during the Summer of

2013; two in 2014; two in 2015; one in 2017; and one in 2018.

(Id.) In 2016, the Village was unable to secure a seasonal worker

at Wilson Park. (Id. ¶ 25.)

Though not guaranteed, Public Works employees can obtain

overtime by working special Village events outside of their

ordinary shifts. (Id. ¶ 26.) In 2017, there were two Village

events simultaneously planned: a concert at Memorial Park, and an

outdoor Movie Night at Wilson Park. (Id. ¶ 28.) The Movie Night

was a small event which required no additional services or

employees, but only periodic checks by the Supervisor and security

patrol. (Id.)

Both Memorial Park and Wilson Park have the same

landscape equipment, including lawnmowers, line trimmers, backpack

blowers, rakes, brooms, shovels and barrels for debris, and the

same cleaning supplies for cleaning the restrooms. (Id. ¶ 29.)

Public Works provides equipment to the various Departments based

upon the type of work and tasks to be completed. (Id. ¶ 30.) The

Highway and Sanitation Departments have access to heavy duty

equipment to perform tree removals, road construction, and refuse

collection; the Parks Department performs basic landscape tasks

and, therefore, does not require such equipment. (Id.)

B. Plaintiff’s Employment with the Village, Generally

In 2011, Plaintiff applied for and was appointed to a

full-time position in the Parks Department at Wilson Park, where

he is currently employed. (Id. ¶ 19.) His duties include keeping

Wilson Park clean, e.g., picking up garbage, leaves, and debris;

cleaning the bathroom facilities. (Id. ¶ 20.) Plaintiff reports

directly to the Parks Department supervisor; if the supervisor is

absent, Plaintiff reports to the Deputy Superintendent, and if the

Deputy Superintendent is absent, Plaintiff reports to Mr. Rini.

(Id. ¶ 15.)

As a member of the United Public Service Employees Union

(“UPSEU”), Plaintiff’s employment by the Village is governed by a

collective bargaining agreement (“CBA”) between the Village and

the UPSEU. (Id. ¶ 31.) Pursuant to the CBA, an employee can take

vacation time only after receiving the supervisor’s written

approval. (Id. ¶ 32.) Since at least 2000, Public Works has had

a written policy entitled, “General Guidelines Regarding the Use

of Benefit Time Off” (the “Vacation Policy”) requiring that all

vacation time be requested and approved in advance and warning

employees that “[i]f time off is not approved, time off cannot be

taken.” (Id. ¶¶ 33-34.) Public Works employees, including

Plaintiff are required to submit requests for time off to Mr. Rini,

who ultimately decides whether to approve them. (Id. ¶ 32.) The

Vacation Policy specifies that limited time off is approved during

each Departments’ peak season. (Id. ¶ 35) Peak season for the

Parks Department is from May 15 through September 15. (Id. ¶ 37)

Plaintiff would have been notified about this policy before he was

hired. (Id. ¶ 40.) In 2011 or 2012, Mr. Rini denied Plaintiff’s

request to take vacation for two consecutive weeks of the summer.

(Id. ¶ 41.)

C. Plaintiff’s Three Claims of Racially Offensive Comments

Plaintiff alleges three incidents of racially offensive

comments by non-supervisory coworkers. (Id. ¶ 42; see also Am.

Compl.; cf. OSC Response.) They appear to be variations of the

Racial Comments Incidents Plaintiff identified in his OSC Response

and Purported Opposition Letter. In the absence of a Local Rule

56.1 Response from Plaintiff, the Court summarizes these Incidents

as presented by Defendants.

1. The Hanging Comment Incident

First, a couple of years before September 2017, a

coworker made a comment at work that he was going to hang Plaintiff

from a tree. (Defs. 56.1 Stmt. ¶¶ 43-44; Am. Compl. ¶ 22.) He

did not mention Plaintiff’s race. (Defs. 56.1 Stmt. ¶ 43.) This

comment was prompted by Plaintiff’s own comment to that coworker

referring to the coworker’s “terrorist fiancé” (a Muslim woman of

Egyptian descent). (Id. ¶ 46.) Both Plaintiff and the coworker

were spoken to by supervisory personnel. (Id. ¶ 45.) Mr. Rini

also spoke to both employees and advised them that they would be

disciplined if he heard or witnessed similar comments. (Id.)

While Plaintiff claims Mr. Rini did not take any action against

his coworker, Plaintiff also (inconsistently) testified he had no

knowledge whether any action was taken against the coworker. (Id.

¶ 47 (citing § 50(h) Hr’g Tr., Ex. B, ECF No. 42-3, at 89 (“I don’t

think Peter was suspended or written up. I don’t know. I don’t

know what – I’m not aware of that action they take.”)).)

2. The Stink Comment Incident

On August 31, 2017, while discussing a trip to a strip

club, a non-supervisory coworker made a comment that “all black

women are stink”. (Id. ¶ 48.)

3. The Charcoal Test Incident and Subsequent Response

Later that same day, after he had an altercation with

Plaintiff about racism, another non-supervisory coworker sent an

inappropriate text in a group chat between non-supervisory Highway

and Parks Department employees. (Id. ¶¶ 49, 51.) The text

included a picture of a white man riding a horse and chasing a

small black child with the caption, “When you’re barbequing and

the charcoal runs away.” (Id. ¶ 49.)

Mr. Rini was not on-site on August 31, 2017, but was

advised of the incident by the Deputy Superintendent of Public

Works when he returned early the next week. (Id. ¶ 50.) During

his subsequent investigation, Mr. Rini learned most of the

non-supervisory Highway and Parks Department employees belonged to

a group chat through which racially charged messages were

exchanged. (Id. ¶ 51.) Thereafter, Mr. Rini immediately called a

meeting with the Highway and Parks Department employees, but

excluded Plaintiff because he was concerned an argument would

ensue. (Id. ¶ 52.) Mr. Rini informed those employees at the

meeting that their behavior was offensive and inappropriate, and

remined them of the Village’s zero-tolerance policy for that type

of behavior. (Id. ¶ 53.) He warned the meeting attendees that

any similar behavior moving forward would be met with disciplinary

action, including suspension and possible termination for bullying

and workplace violence. (Id.) The employees informed Mr. Rini

that Plaintiff had created the group chat and often made racially

charged jokes and comments himself. (Id. ¶ 54.) Mr. Rini advised

the Highway and Parks Department employees that, moving forward,

he would not allow further group texts among employees and that

nobody was allowed to make inappropriate jokes at work. (Id. ¶

55.)

Following the meeting, Mr. Rini informed the Village

Attorney’s office about the incident. (Id. ¶ 56.) Mr. Rini also

met with Plaintiff and informed him about his discussion with the

other employees, including that there was a zero-tolerance policy

for such behavior and that he would not allow group texts among

employees or inappropriate jokes at work. (Id. ¶ 57.) According

to Plaintiff, Mr. Rini said he was sorry for what happened, that

he would take care of it, and that it would not happen again. (Id.

¶ 58.) Since the time in 2017, when Mr. Rini addressed this

incident, through November 22, 2019, when Plaintiff testified at

his Section 50(h) hearing, Plaintiff did not experience any

coworkers making racially offensive comments towards him. (Id. ¶

59 (citing § 50(h) Hr’g Tr. 114.)

4. The First UPSEU Grievance

On September 20, 2017, the UPSEU filed a grievance with

the Village on Plaintiff’s behalf alleging Mr. Rini discriminated

against Plaintiff based upon his race. (Id. ¶ 60; Sept. 20, 2017

Grievance Letter, Ex. H, ECF No. 42-9.) The grievance alleged

that on September 18, 2017, Mr. Rini reprimanded Plaintiff for his

repeated tardiness and warned him that if it continued, he would

be written up and possibly face further progressive discipline.

(Defs. 56.1 Stmt. ¶ 61.) The grievance also stated Plaintiff’s

belief that Mr. Rini made this threat in retaliation for reporting

a racially motivated incident involving a coworker. (Id.)

Specifically, the grievance claimed:

•

Mr. Caesar is denied vacation when he puts in

for two weeks of vacation time simultaneously,

and can therefore only take vacation in single

weeks, while other non-minority employees are

approved for two weeks of simultaneous

vacation.

•

For the past five years Mr. Caesar has been

assigned to work overtime during the Mineola

Village Movie Night in the Park, until this

year when the overtime was reassigned to a

caucasian employee from another department.

•

Several years ago, one of Mr. Caesar’s

caucasian co-workers said he was going to hang

him from a tree. This was reported to Mr.

Rini, however Mr. Rini failed to address this

issue to Mr. Caesar’s satisfaction, and by

further preventing discrimination by his

co-workers.

•

For several winters, Mr. Caesar was assigned

to remove ice and snow manually from walkways

without the proper equipment by himself, while

co-workers from other departments, that are

primarily caucasian, worked in teams to remove

snow and ice with the proper equipment.

•

Two employees left the Parks Department,

leaving Mr. Caesar as the only employee left

in that department. Mr. Rini never replaced

any of the employees in the department,

however, he added additional employees to the

highway and sanitation departments, which

primarily consists of caucasian employees.

Mr. Caesar was then expected to perform the

additional workload by himself, without any

help or assistance.

•

In addition, over the past several years, Mr.

Caesar was not provided with temporary summer

help in his department while other

departments, whom consist primarily of

caucasian workers, were provided the

additional summer help.

•

Mr. Caesar has requested additional equipment

from Mr. Rini to perform his duties and has

been denied, while other departments who are

primarily caucasian received additional

equipment on a regular basis.

(Grievance Letter at 2-3 (emphasis added).)

Following Mr. Rini’s response to each of Plaintiff’s

grievances, a meeting was held during which Plaintiff’s grievances

were discussed and resolved; thereafter, on April 27, 2018, the

UPSEU formally withdrew Plaintiff’s grievance complaint. (Defs.

56.1 Stmt. ¶ 64 (citing UPSEU Apr. 27, 2018 Letter, Ex. J, ECF No.

42-11).)

5. The Summer 2019 Vacation Requests

During the Summer of 2019, in writing, Mr. Rini denied

some of Plaintiff’s requests to take time off in July and August

(hereafter, the “Summer 2019 Vacation Requests”); he explained

Plaintiff had already taken or scheduled 11 days off during the

summer season. (Id. ¶¶ 65-66.) For example, Mr. Rini granted

Plaintiff’s request to take off on July 12, 2019, but denied his

request to take off on July 29, 2019. (Id. ¶ 67.) When Plaintiff

requested to take off August 12 and 19, 2019, Mr. Rini responded

Plaintiff could take off one of those days, but not both; Plaintiff

was to choose which of those two days he would request. (Id. ¶

68.) Thereafter, Plaintiff chose to request August 12th as the

day off; Mr. Rini approved that request and denied Plaintiff’s

request to take off August 19th, explaining Plaintiff had already

taken days off during the summer season. (Id.) On August 1, 2019,

Plaintiff submitted a written request to take off from August 23

through August 26, 2019. (Ex. K, ECF No. 42-12, at 8.) Mr. Rini

denied Plaintiff’s request, writing:

As indicated in my previous Note to you (copy

attached), you would be permitted to use one

additional day, either August 12th or 19th, and

you chose August 12th, during this summer

season. Based upon this previous

determination, no additional days off will be

approved until after Labor Day 9/2/19.

(Defs. 56.1 Stmt. ¶ 69.)

6. The Second UPSEU Grievance

On August 12, 2019, the UPSEU filed a second grievance

on Plaintiff’s behalf claiming Mr. Rini denied Plaintiff’s request

to take vacation on August 23 through August 29, 2019, because of

his race. (Id. ¶ 71.) By memorandum dated September 4, 2019, Mr.

Rini denied Plaintiff’s grievance explaining his vacation denial

was to ensure proper coverage at Wilson Park during its peak park

season, i.e., from Memorial Day through Labor Day. (Id. ¶¶ 72-74;

Rini Sept. 2019 Memo, Ex. O, ECF No. 42-16.) Mr. Rini’s denial

explained: Plaintiff had taken 12 days off (i.e., nine vacation

days and three personal days) during the peak park season, more

than any other Parks Department employee; and Mr. Rini denied

Plaintiff’s request for time off in August 2019 “solely based upon

ensuring proper coverage in the park that Plaintiff is assigned to

during the [peak] park season.” (Defs. 56.1 Stmt. ¶¶ 72, 74-75;

Rini Sept. 2019 Memo at 2-3 (The “approval or denial of vacation

time off is clearly a management function and clearly within [Mr.

Rini’s] purview and authority as the Department Head to exercise

as [he] feel[s] necessary, in this case to maintain proper upkeep

of a park during the height of summer when a park is most used.”).)

On September 9, 2019, the UPSEU requested a grievance

hearing. (Defs. 56.1 Stmt. ¶ 77.) At its September 18, 2019

meeting, the Village’s Board of Trustees appointed Special Counsel

for the Village and a hearing officer for the grievance hearing.

(Id. ¶ 78.) In October 2019, the hearing officer attempted to

schedule a hearing date. (Id. ¶ 79.) After several postponement

notifications, the UPSEU’s attorney notified the Village that it

did not intend to pursue the grievance hearing.4 (Id. ¶ 80.)

D. The Instant Action

This action was commenced on February 15, 2022. (See

Compl., ECF No. 1.) Attached to the Complaint was Plaintiff’s

“Right to Sue” letter, dated December 23, 2021, received from the

4 As of the date of the filing of the instant motion, the UPSEU

had failed to withdraw the grievance. (Id. ¶ 80.)

Civil Rights Division of the U.S. Department of Justice. (See

Right to Sue Letter, ECF No. 1-1.)

DISCUSSION

I. Legal Standard

Summary judgment is appropriate where there is “no

genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” FED. R. CIV. P. 56(a). “Material

facts are those which might affect the outcome of the suit under

the governing law, and a dispute is genuine if the evidence is

such that a reasonable jury could return a verdict for the

nonmoving party.” Wagner v. Chiari & Ilecki, LLP, 973 F.3d 154,

164 (2d Cir. 2020) (quoting Coppola v. Bear Stearns & Co., 499

F.3d 144, 148 (2d Cir. 2007)) (internal quotation marks omitted).

The movant bears the burden of establishing that there are no

genuine issues of material fact in dispute. CILP Assocs., L.P. v.

PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013).

“In moving for summary judgment against a party who will bear the

ultimate burden of proof at trial,” as Plaintiff does here, “the

movant may satisfy this burden by pointing to an absence of

evidence to support an essential element of the nonmoving party’s

claim.” Gummo v. Vill. of Depew, 75 F.3d 98, 107 (2d Cir. 1996)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)).

In determining whether an award of summary judgment is

appropriate, the Court considers the “pleadings, deposition

testimony, answers to interrogatories and admissions on file,

together with any other firsthand information including but not

limited to affidavits.” Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir.

2011). In reviewing the record, “the court is required to resolve

all ambiguities and draw all permissible factual inferences in

favor of the party against whom summary judgment is sought.” Sheet

Metal Workers’ Nat’l Pension Fund v. Vadaris Tech. Inc., No.

13-CV-5286, 2015 WL 6449420, at *2 (E.D.N.Y. Oct. 23, 2015)

(quoting McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir.

1997)). When drawing inferences from evidence in the record in

favor of the non-moving party, however, a court should not accord

the non-moving party the benefit of “unreasonable inferences, or

inferences at war with undisputed facts.” Berk v. St. Vincent’s

Hosp. & Med. Ctr., 380 F. Supp. 2d 334, 342 (S.D.N.Y. 2005)

(quoting County of Suffolk v. Long Island Lighting Co., 907 F.2d

1295, 1318 (2d Cir. 1990)).

“Once the movant has ‘demonstrat[ed] the absence of a

genuine issue of material fact . . . the onus shifts to the party

resisting summary judgment to present evidence sufficient to

satisfy every element of the claim.’” Pennington, 855 F. App’x at

781 (alteration in original) (quoting Holcomb v. Iona Coll., 521

F.3d 130, 137 (2d Cir. 2008)). To do this, “[t]he non-moving party

is required to ‘go beyond the pleadings’ and ‘designate specific

facts showing that there is a genuine issue for trial.’” Id.

(quoting Holcomb, 521 F.3d at 137).

The Court highlights, “particularly where motions for

summary judgment are concerned,” Jackson v. Fed. Express, 766 F.3d

189, 195 (2d Cir. 2014), it is “obligated to afford a special

solicitude to pro se litigants.” Freshwater, 623 F.3d at 101.

Nevertheless, pro se litigants are “generally . . . required to

inform themselves regarding procedural rules and to comply with

them.” Wilson v. Suffolk County Dist. Att’y, No. 21-CV-4815, 2021

WL 4311155, at *2 (E.D.N.Y. Sept. 22, 2021) (quoting Caidor v.

Onondaga County, 517 F.3d 601, 605 (2d Cir. 2008)); see also

generally Kotler v. Jubbert, 986 F.3d 147, 156 (2d Cir. 2021)

(explaining “solicitude for pro se litigants does not require

[courts] to excuse failure to comply with understandable

procedural rules”).

II. Title VII Claims

A. Plaintiff’s Claims Against the Parks Department

Plaintiff cannot maintain a claim against the Parks

Department as it is merely an administrative arm of the Village;

therefore, the Parks Department does not have a legal identity

separate and apart from the Village. See e.g., Guichard v. Town

of Brookhaven, 26 F. Supp. 3d 219, 226 (E.D.N.Y. 2014) (“[U]nder

New York law, departments which are merely administrative arms of

a municipality, do not have a legal identity separate and apart

from the municipality and cannot sue or be sued.”) (quoting Walker

IV v. U.S. Marshals, No. 08–CV–0959, 2009 WL 261527, at *2

(E.D.N.Y. Feb. 4, 2009)). Accordingly, Plaintiff’s claims against

the Village’s Parks Department are DISMISSED.

B. Plaintiff’s Claims Against Mr. Rini

Plaintiff cannot maintain his Title VII claims against

Mr. Rini as “individuals are not subject to liability under Title

VII.” Patterson v. County of Oneida, 375 F.3d 206, 221 (2d Cir.

2004) (quoting Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir.

2000) (per curium), and citing Tomka v. Seiler Corp., 66 F.3d 1295,

1313 (2d Cir. 1995) (“individual defendants with supervisory

control over a plaintiff may not be held personally liable under

Title VII”), abrogated on other grounds by Burlington Industries,

Inc. v. Ellerth, 524 U.S. 742 (1998).)) Therefore, Plaintiff’s

Title VII claims against Mr. Rini are DISMISSED.5

[Proceed to next page.]

5 To the extent Plaintiff intended to assert his Title VII claims

against Mr. Rini in his official capacity, such claims are

duplicative of his claims against the Village and are, therefore,

dismissed. See Falcon v. City Univ. of N.Y., No. 15-CV-3421, 2016

WL 3920223, *6 (E.D.N.Y. July 15, 2016) (collecting cases rejecting

“Title VII claims against individuals in their official capacities

because those claims are duplicative” of claims against the

employer).

C. Plaintiff’s Claims Against the Village

1. Most of Plaintiff’s Claims are Time-Barred

Prior to filing a Title VII claim, a plaintiff must

timely file a charge with the EEOC within 300 days of the alleged

discriminatory act. See 42 U.S.C. § 2000e-5(e)(1), 42 U.S.C. §

12117. “Failure to timely file a charge with the EEOC renders a

Title VII claim time-barred, thereby preventing a claimant from

bringing h[is] claim in federal court.” Fanelli v. New York, 51

F. Supp. 3d 219, 227 (E.D.N.Y. 2014) (citing Elmenayer v. ABF

Freight Sys., Inc., 318 F.3d 130, 133–34 (2d Cir. 2003)). This

exhaustion requirement applies to both causes of action as well as

the underlying factual allegations. Id. The requirement of filing

a charge within 300 days is similar to a statute of limitations.

See Quiles v. Suffolk County Cmty. Coll., No. 02-CV-2399, 2005 WL

8161194, * 5 (E.D.N.Y. Sept. 28, 2005) (citing Zipes v. Trans World

Airlines, Inc., 455 U.S. 385, 393 (1982)).

The continuing violation doctrine provides an exception

“for claims that the discriminatory acts were part of a continuing

policy and practice of prohibited discrimination so long as one

act of discrimination in furtherance of the ongoing policy occurred

within the limitations period.” Fanelli, 50 F. Supp. 3d at 227-28

(internal quotation marks and citations omitted). Nevertheless,

this doctrine “does not apply to discrete acts of discrimination,

even if they are related to acts alleged in timely filed charges.”

Blair v. L.I. Child and Family Dev. Servs., Inc., No. 16-CV-1591,

2017 WL 722112, at *9 (E.D.N.Y. Jan. 31, 2017), report and

recommendation adopted, 2017 WL 728231 (E.D.N.Y. Feb. 21, 2017)

(internal quotation marks and citation omitted); see also, e.g.,

Lukasiewicz–Kruk v. Greenpoint YMCA, 404 F. App’x 519, 520 (2d

Cir. 2010) (“Recovery for discrete acts of discrimination or

retaliation that occur outside of the applicable limitations

period is precluded, even if the acts are related to acts alleged

in timely filed charges.” (citing Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 113 (2002))). Instead, “each discrete act

starts a new clock for filing charges alleging that act.” Morgan,

536 U.S. at 113; see also Cabrera v. N.Y. City, 436 F. Supp. 2d

635, 642 (S.D.N.Y. 2006) (“The Second Circuit has repeatedly ruled

that ‘multiple incidents of discrimination, even similar ones,

that are not the result of a discriminatory policy or mechanism do

not amount to a continuing violation.’” (citation omitted)).

Notably, “the continuing violation doctrine is heavily disfavored

in the Second Circuit and courts have been loath to apply it absent

a showing of compelling circumstances.” Trinidad v. N.Y. City

Dep’t of Corr., 423 F. Supp. 2d 151, 165 n.11 (S.D.N.Y. 2006)

(internal quotation marks omitted).

Though “not independently actionable, acts that occur

outside the limitations period may nevertheless be used ‘as

background evidence in support of a timely claim.’” Fanelli, 51

F. Supp. 3d at 228 (quoting Morgan, 536 U.S. at 113). “Thus,

‘evidence of an earlier alleged [discriminatory or] retaliatory

act may constitute relevant background evidence in support of [a]

timely claim . . . [and] may be considered to assess liability on

the timely alleged act.” Id. (quoting Jute v. Hamilton Sundstrand

Corp., 420 F.3d 166, 176–77 (2d Cir. 2005) (internal quotation

marks and citation omitted)).

Here, Defendants contend Plaintiff’s claims, other than

his allegations regarding the denial of his Summer 2019 Vacation

Requests, are time-barred. (Mot. at 17-21). The Court agrees.

On March 9, 2020, Plaintiff filed charges with the EEOC.

(See Ex. D.) Therefore, Plaintiff’s Title VII claims based upon

discrete discriminatory conduct that occurred more than 300 days

prior to March 9, 2020, i.e., before May 14, 2019, are time-barred.

Those time-barred claims are:

(1) the denial of overtime during the Village Movie

Night in 2017 (Am. Compl. ¶ 24);

(2) failing to replace two employees who left the Parks

Department leaving Plaintiff to do all the work himself

sometime prior to September 2017 (Am. Compl. ¶ 24);

(3) failing to provide seasonal help sometime in 2016

(Am. Compl. ¶ 24);

(4) failing to provide Plaintiff with additional

equipment to perform his duties prior to September 2017

(Am. Compl. ¶ 24); and

(5) the three allegedly racially charged comments made

to Plaintiff by non-supervisory coworkers: one in or

around 2015 and two on August 31, 2017. (Am. Compl. ¶¶

20, 22, 23.)

(Def. 56.1 Stmt. ¶¶ 42-44, 48-49, 62.) (Hereafter, the “Time-

Barred Claims”.6) Admittedly, all these Time-Barred Claims

occurred well before May 14, 2019. (Compare Am. Compl. ¶¶ 20-24,

with Grievance Letter and § 50(h) Hr’g Tr. 82:8-84:13.) In fact,

all the Time-Barred Claims conduct occurred before September 17,

2017, the date Plaintiff filed his first grievance. (See Grievance

Letter.) Therefore, since the record evidence establishes the

Time-Barred Claims fall outside the statute of limitations,

Plaintiff’s Title VII claims based upon same are denied and, as a

matter of law, Defendants are entitled to summary judgment in their

favor.

To the extent, by way of his Purported Opposition Letter,

Plaintiff contends that two of the Time-Barred Claims occurred on

October 9, 2019, thereby implying they are timely claims, his

contention is unavailing.7 (ECF No. 40.) To begin, the Court has

6 The Court notes, based upon the record evidence, it is apparent

that the Time-Barred Claims referenced in paragraph (5), above,

are the Racial Comments Incidents, i.e., the three incidents

identified by Plaintiff in his OSC Response and his Purported

Opposition Letter.

7 Plaintiff does not dispute that the Hanging Comment Incident

occurred at least two years earlier. (See ECF No. 40.) Indeed,

in his Purported Opposition Letter, Plaintiff states the Hanging

Comment Incident occurred “[d]uring 2016/2017 timeframe”. (Id.)

already determined the Purported Opposition Letter is insufficient

to defeat summary judgment as it is not a properly submitted

affidavit. (See supra at 13-14.) Thus, the statements in

Defendants’ 56.1 Statement are deemed admitted; upon those

statements, Defendants have established the Stink Comment Incident

and the Charcoal Text Incident occurred beyond the applicable

300-day lookback period. Even if that were not so, independently,

the record evidence disproves Plaintiff’s implicit timeliness

contention.

In his September 2019 Notice of Claim, Plaintiff

alleged, inter alia, “Several years ago . . . [a]n additional

co-worker made racist remarks regarding black women stating, ‘[He

doesn’t] date black women. Black women are stink,’ and then sent

Mr. Caesar a picture of a white man shooting at a black child.”

(Sept 19, 2019 Notice of Claim, Ex. C, ECF No. 42-4, at Part 3

(emphasis added).) Plaintiff corroborated the time of these

Incidents during his Section 50(h) examination, testifying they

occurred in 2017 or 2018, not in 2019, as he now claims. (See

§ 50(h) Hr’g Tr. 82:8-84:13.) Plaintiff further testified that

nobody had made any racist comments to him from the time of those

Incidents through November 22, 2019, the date of the Section 50(h)

examination. (Id. 114:16-22.) Thus, by his own testimony,

As such, this allegation is clearly outside the statute of

limitations.

Plaintiff establishes the Stink Comment Incident and Charcoal Text

Incident occurred outside the relevant look-back period.

Further, “[i]t is well settled in this circuit that a

party’s affidavit which contradicts his own prior deposition

testimony should be disregarded on a motion for summary judgment.”

Haxton v. PL Smithtown, LLC, No. 2020 WL 1244849, at *7 (E.D.N.Y.,

Mar. 16, 2020) (quoting Colvin v. Keen, No. 13-cv-3595, 2016 WL

5408117, at *3 (E.D.N.Y. Sept. 28, 2016); collecting cases). Thus,

even if the Court were to consider Plaintiff’s Purported Opposition

Letter to be a proper affidavit, which it has declined to do, the

“factual issue” regarding the timeliness of Plaintiff’s claims

based upon the Stink Comment Incident and the Charcoal Text

Incident are not “genuine” issues for trial. See Hayes v. N.Y.C.

Dep’t of Corrs., 84 F.3d 614, 619 (2d Cir. 1996); see also Brown

v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (“[F]actual

allegations that might otherwise defeat a motion for summary

judgment will not be permitted to do so when they are made for the

first time in the plaintiff’s affidavit opposing summary judgment

and that affidavit contradicts h[is] own prior deposition

testimony.”). Nor has Plaintiff attempted to reconcile the

inconsistencies regarding the dates. See, e.g., Jeffrey v.

Montefiore Med. Ctr., No. 11-cv-6400, 2013 WL 5434635, at *15

(S.D.N.Y. Sept. 27, 2013) (finding, where inconsistencies existed

between a non-movant’s affidavit and corresponding deposition

testimony, which inconsistencies the non-movant party made no

effort to reconcile or otherwise explain, the court did not

consider those statements) (collecting cases). Hence, at bottom,

upon the summary judgment record, the Court finds no dispute that

the Stink Comment Incident and the Charcoal text Incident are

time-barred.

Moreover, the continuing violation doctrine cannot save

Plaintiff’s Time-Barred Claims as those claims are based upon a

series of discrete acts insufficient to constitute a continuing

violation. See, e.g., Bain v. Highgate Hotels, LP, No. 08-CV-3263,

2009 WL 10705912, at *7 (E.D.N.Y. July 7, 2009) (finding “a series

of discrete acts consisting of specific failures to assign

[plaintiff] to the early shift . . . , a particular denial of a

requested vacation date, or an assignment of an onerous task on

some occasions” did “not support invocation of the continuing

violation doctrine”); Johnson v. City of N.Y., No. 17-CV-7585,

2019 WL 4468442, at *6 (E.D.N.Y. Sept. 18, 2019) (finding

“terminations, disciplinary actions, failures to offer overtime

hours, failures to grant vacation time, failures to compensate

adequately, and undesirable assignments” were time-barred discrete

acts); Kaur v. N.Y.C. Health & Hosps. Corp., 688 F. Supp. 2d 317,

327-288, 330 (S.D.N.Y. 2010) (supervisors’ and coworkers’ comments

that they “don’t want foreigners here” and that Indians “sell their

daughters”, “eat cows” and “never tell the truth and lie” were

discrete acts); Diaz v. Weill Med. Ctr. of Cornell Univ., No.

02-CV-7380, 2004 WL 285947 at *18 (S.D.N.Y. Feb. 13, 2004) (finding

“allegedly discriminatory remarks, all of which took place during

the time bar period and none of which occurred during the 300 day

look back period, are time barred”). Additionally, “[a]cts

occurring outside the limitations period that are significantly

far apart from each other are ‘fatal’ to a continuing violation

argument.” Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766

(2d. Cir. 1998) (holding plaintiff could not assert a continuing

violation when there was a three-year gap in time from one

allegation to the next). In the instant case, Plaintiff’s

allegations from 2016 and 2017 are “significantly far apart” from

the denial of his Summer 2019 Vacation Requests. (See Ex. H at 2-

3.) Thus, this significant time gap, alone, is a sufficient basis

for finding no continuing violation. Quinn, 159 F.3d at 766.

Consequently, with respect to Plaintiff’s discrimination

and retaliation claims, the events alleged to have occurred prior

to May 14, 2019 are discrete acts, not actionable independently,

and time-barred. As a result, the only remaining claims are those

involving the denial of Plaintiff’s Summer 2019 Vacation Requests.

[Remainder of page intentionally left blank.]

2. Consideration of Plaintiff’s Timely

Discrimination Claims and Retaliation Claims

With respect to Plaintiff’s only timely allegation --

the denial of his Summer 2019 Vacation Requests -- Plaintiff fails

to establish a prima facie case of discrimination or retaliation.

Therefore, as a matter of law, Defendants are entitled to summary

judgment. The Court explains its decision, below.

Employment discrimination claims are analyzed under the

well-known burden-shifting framework established by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

See Ruiz v. County of Rockland, 609 F.3d 486, 491 (2d Cir. 2010);

Holcomb, 521 F.3d at 138. That framework requires a plaintiff to

first establish a prima facie case of discrimination. Holcomb,

521 F.3d at 138. To establish a prima facie case of

discrimination, a plaintiff must show: “(1) he is a member of a

protected class; (2) he was qualified for the position he held;

(3) he suffered an adverse employment action; and (4) the adverse

action took place under circumstances giving rise to [an] inference

of discrimination.” Reynolds v. Barrett, 685 F.3d 193, 202 (2d

Cir. 2012) (quoting Ruiz, 609 F.3d at 491–92).

Similarly, retaliation claims are subject to the

McDonnell Douglas burden shifting framework. See Hicks v. Baines,

593 F.3d 159, 164 (2d Cir. 2010). To make out a prima facie case

of retaliation, a plaintiff must establish: “‘(1) participation in

a protected activity; (2) that the defendant knew of the protected

activity; (3) an adverse employment action; and (4) a causal

connection between the protected activity and the adverse

employment action.’” Id. (quoting Jute v. Hamilton Sundstrand

Corp., 420 F.3d 166, 173 (2d Cir. 2005).)

Plaintiff’s discrimination and retaliation claims fail

because he is unable to show he suffered any adverse employment

action. “An employee suffers an adverse employment action if a

‘materially adverse change’ in the terms and conditions of his

employment takes place.” Smalls v. Allstate Ins. Co., 396 F. Supp.

2d 364, 370 (S.D.N.Y. 2005) (quoting Galabya v. N.Y.C. Bd. of

Educ., 202 F.3d 636, 640 (2d Cir. 2000)). There is no definitive

rule regarding what types of actions constitute an adverse

employment action, see Connor v. N.Y. State Dep’t of Corr. Servs.,

No. 01–CV–0642, 2007 WL 764508, at *4 (E.D.N.Y. Mar. 9, 2007), but

an action “must be more disruptive than a mere inconvenience or an

alteration of job responsibilities,” Galabya, 202 F.3d at 640.

“Employment actions that the Second Circuit has deemed

sufficiently disadvantageous to constitute an ‘adverse employment

action’ include ‘a termination of employment, a demotion evidenced

by a decrease in wage or salary, a less distinguished title, a

material loss of benefits, significantly diminished material

responsibilities, or other indices . . . unique to a particular

situation.’” Cotterell v. Gilmore, 64 F. Supp. 3d 406, 422

(E.D.N.Y. 2014) (quoting Beyer v. County of Nassau, 524 F.3d 160,

163 (2d Cir. 2008)). Yet, “[d]enials of vacation time are not

adverse actions.” Wharton v. County of Nassau, No. 10-CV-0265,

2013 WL 4851713, at *9 (E.D.N.Y. Sept. 10, 2013) (citing Kaur v,

N.Y.C. Health & Hosps. Corp., 688 F. Supp. 2d 317, 332 (S.D.N.Y.

2010)) (additional citations omitted); see also, e.g., Roff v. Low

Surgical & Med. Supply, Inc., No. 03-CV-3655, 2004 WL 5544995, at

*4 (E.D.N.Y. May 11, 2004) (“The denial of a single vacation

request, without any indication that there was an absolute

prohibition against plaintiff taking any vacation time, is not a

material adverse employment action.”) (collecting cases);

Chin-McKenzie v. Continuum Health Partners, 876 F. Supp. 2d 270,

286 (S.D.N.Y. 2012) (finding denial of requested days off was a

“minor annoyance” rather than a “materially adverse” retaliatory

act); Nidzon v. Konica Minolta Bus. Solutions, USA, Inc., 752 F.

Supp. 2d 336 (S.D.N.Y. 2010) (denial of vacation time is not an

adverse action, where all employees were subjected to the same

policy). Plaintiff does not contend he was never allowed vacation

time; indeed, the record evince shows he was granted 12 days off

in the Summer 2019, nine of which were vacation days. (See Ex. O

at 2.) Thus, the denial of five additional vacation days during

Summer 2019, especially when it was known that summer was the peak

park season, does not constitute an adverse action sufficient to

establish either a discrimination or a retaliation claim.

Further, and of significance, even if the denial of

Plaintiff’s Summer 2029 Vacation Requests did constitute an

adverse action, there is no record evidence that the Summer 2019

Vacation Requests denials were motivated by discriminatory animus.

Rather, Defendants had legitimate, non-discriminatory reasons for

limiting Plaintiff’s, and other employees’, vacation days during

summer, i.e., staffing needs during the busy summer season, in

conjunction with the Public Works’ preexisting written policy

limiting time off for the Parks Department during that season.

(Defs. 56.1 Stmt. ¶¶ 37-38; Ex. G.) By definition, application of

neutral company policies is a legitimate, non-discriminatory

reason for a particular action. See, e.g., Raytheon Co. v.

Hernandez, 540 U.S. 44, 55 (2003); see also Sethi v. Narod, 12 F.

Supp. 3d 505, 547-48 (E.D.N.Y. 2014) (finding allocating plaintiff

paid vacation time in a manner consistent with a neutrally applied

company policy is a legitimate, non-discriminatory reason for

denying plaintiff’s request for additional vacation days);

Maitland v. Konica Minolta Bus. Sols. U.S.A. Inc., No. 09-CV-01675,

2016 WL 304884, at *9, *11 (E.D.N.Y. Jan. 25, 2016) (granting

summary judgment where plaintiff was denied vacation request

pursuant to defendant’s policy and was approved to take vacation

time later in the month), aff’d sub nom. Maitland v. Konica Minolta

Bus. Sols., 691 F. App’x 653 (2d Cir. 2016).

Plaintiff offers no evidence suggesting compliance with

Defendants’ Vacation Policy was discriminatorily applied.

Plaintiff simply alleges he was denied his Summer 2019 Vacation

Requests while “other, non-minority, employees have been permitted

to take vacation during this time.”8 (Am. Compl. ¶ 17.) Such

conclusory allegations without any evidence in support is

insufficient to raise a genuine issue of material fact precluding

summary judgment. See Pennington, 855 F. App’x at 781 (“The

non-moving party is required to go beyond the pleadings and

designate specific facts showing that there is a genuine issue for

trial.” (cleaned up) (quoting Holcomb, 521 F.3d at 137); see also

Woodcock v. Montefiore Med. Ctr. Univ. Hosp. of Albert Einstein

Coll. of Med., No. 98-CV-4420, 2002 WL 403601, at *6 (E.D.N.Y.

Jan. 28, 2002) (granting summary judgment where plaintiff failed

to show denial of transfer and vacation requests were motivated by

discrimination);9 F.D.I.C. v. Great Am. Ins. Co., 607 F.3d 288,

292 (2d Cir. 2010) (“To defeat a summary judgment motion, the

nonmoving party ‘must do more than simply show that there is some

8 With respect to his retaliation claim, admittedly, Plaintiff

testified there was no causal connection between his September

2017 grievance and Mr. Rini’s denial of his Summer 2019 vacation

requests. (See § 50(h) Hr’g Tr. 80:9-24.)

9 Though Plaintiff’s claims in Woodcock were brought pursuant to

42 U.S.C. § 1981, courts use the same standards in Section 1981

cases as applied in Title VII cases. Id. at *5 (citing Whidbee v.

Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000).)

metaphysical doubt as to the material facts,’ and ‘may not rely on

conclusory allegations or unsubstantiated speculation.’”)

(citations omitted).

Finally, looking at Plaintiff’s other allegations for

background, e.g., the Racial Comments Incidents made by his

coworkers, also fails to demonstrate discriminatory animus by any

decision maker. See Tomassi v. Insignia Fin. Grp., 478 F.3d 111,

115 (2d Cir. 2007) (holding remarks by someone other than decision

maker “may have little tendency to show that the decision-maker

was motived by the discriminatory sentiment expressed in the

remark”), abrogated on other grounds by Gross v. FBL Fin. Servs.,

Inc., 557 U.S. 167, 177–78 (2009). The alleged comments were made

years before the denial of Plaintiff’s Summer 2019 Vacation

Requests and are therefore “too remote[ ] to support an inference

that the adverse action was motivated by racial bias.” Howard v.

City of N.Y., 602 F. App’x 545, 547 (2d Cir. 2015); see also

Haskell v. Kaman Corp., 743 F.2d 113, 120 (2d Cir. 1984) (“Stray

remarks by non-decision-makers or by decision-makers unrelated to

the decision process are rarely given great weight, particularly

if they were made temporally remote from the date of decision”).

In sum, given the absence of evidence, no reasonable

juror could return a verdict for nonmoving Plaintiff. Rather,

upon the record presented, as a matter of law, Defendants are

entitled to summary judgment in their favor as to Plaintiff’s

discrimination and retaliation claims. Accordingly, their Motion

is granted with respect to Plaintiff’s discrimination and

retaliation claims.

3. Plaintiff’s Hostile Work Environment Claim

To prevail on a hostile work environment claim, a

plaintiff must show “(1) that the harassment was sufficiently

severe or pervasive to alter the conditions of [his] employment

and create an abusive working environment, and (2) that a specific

basis exists for imputing the objectionable conduct to the

employer.” Fox v. Costco Wholesale Corp., 918 F.3d 65, 74 (2d

Cir. 2019) (citation omitted). A “[p]laintiff must show not only

that she subjectively perceived the environment to be abusive, but

also that the environment was objectively hostile and abusive.”

Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006). The

standard for establishing a hostile work environment is high, see

Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003), and a claim

cannot be based upon speculative or conclusory allegations. See

Thomas v. Bergdorff Goodman, Inc., No. 03-CV-3066, 2004 WL 2979960,

at *6-7 (S.D.N.Y. Dec. 22, 2004). “Courts look to the totality of

the circumstances to determine whether a plaintiff has met this

burden, including proof of ‘the frequency of the discriminatory

conduct; its severity; whether it [was] physically threatening or

humiliating, or a mere offensive utterance; and whether it

unreasonably interfere[d] with [the plaintiff’s] work

performance.’” Fox, 918 F.3d at 74 (quoting Harris v. Forklift

Sys., Inc., 510 U.S. 17, 23 (1993).)

Further, to succeed on his hostile work environment

claim, Plaintiff must “demonstrate that []he was subjected to the

hostility because of h[is] membership in a protected class.”

Brennan v. Metro. Opera Ass’n Inc., 192 F.3d 310, 318 (2d Cir.

1999); see also Alfano v. Costello, 294 F.3d 365, 374 (2d Cir.

2002) (instructing, to establish a claim of hostile work

environment under Title VII, one must demonstrate the

complained-of conduct occurred because of plaintiff’s protected

status, e.g., race).

Here, Plaintiff’s claims of three allegedly race-based

comments in 2016 and 2017 by non-supervisory coworkers, i.e., the

Racial Comments Incidents, do not give rise to a hostile work

environment claim. A “few isolated incidents of racial enmity,”

Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986), or a

“mere utterance of an . . . epithet which engenders offensive

feelings in an employee” is insufficient to establish a hostile

work environment, Harris, 510 U.S. at 21 (internal quotation marks

and citation omitted). See, e.g., Curcio v. Roosevelt Union Free

Sch. Dist., No. 10-CV-5612, 2012 WL 3646935, at *11 (E.D.N.Y. Aug.

22, 2012) (“Comments made at irregular intervals, over such a long

period of time, particularly by individuals who did not exercise

any direct supervisory authority over plaintiff, cannot serve as

the basis of a hostile work environment claim.”); Longmire v.

Wyser–Pratte, No. 05-CV-6725, 2007 WL 2584662, at *12 (S.D.N.Y.

Sept. 6, 2007) (sporadic alleged racist jokes and comments were

not sufficient to warrant trial on plaintiff’s hostile work

environment claim). Moreover, as addressed supra, Plaintiff

offers no evidence that he was denied his Summer 2019 Vacation

Requests due to his race. Therefore, considering the totality of

the circumstances, no reasonable juror could conclude Defendants’

conduct created a workplace so “permeated with discriminatory

intimidation, ridicule, and insult that [it] [was] sufficiently

severe or pervasive to alter the conditions of the [Plaintiff’s]

employment and create an abusive working environment.” Harris,

510 U.S. at 21.

Accordingly, upon the record presented, the Court finds,

as a matter of law, Defendants are entitled to judgment in their

favor; thus, the Court GRANTS Defendants’ summary judgment on

Plaintiff’s hostile work environment claim, as well.

III. NYHRL Claims

Having dismissed all of Plaintiff’s federal claims, in

its discretion, the Court declines to exercise supplemental

jurisdiction over his remaining state law claims against the

Defendants. See 28 U.S.C. § 1367(c)(3) (“The district courts may

decline to exercise supplemental jurisdiction over a claim . . .

if . . . the district court has dismissed all claims over which it

has original jurisdiction . . . .”); Carnegie-Mellon Univ. v.

Cohill, 484 U.S. 343, 350 n.7 (1988) (“[I]n the usual case in which

all federal-law claims are eliminated before trial, the balance of

factors to be considered under the pendent jurisdiction doctrine

-- judicial economy, convenience, fairness, and comity -- will

point toward declining to exercise jurisdiction over the remaining

state-law claims.”); One Commc’ns Corp. v. J.P. Morgan SBIC LLC,

381 F. App’x 75, 82 (2d Cir. 2010) (“If all of a plaintiff’s

federal claims are dismissed, a district court is well within its

discretion to decline to assert supplemental jurisdiction over any

state law claims.”).10 Hence, Plaintiff’s NYHRL claims against the

Defendants are DISMISSED WITHOUT PREJUDICE.

CONCLUSION

Accordingly, for the reasons stated herein, IT IS HEREBY

ORDERED that Defendants’ Motion (ECF No. 47) is GRANTED; therefore,

Plaintiff’s discrimination, retaliation, and hostile work

environment claims are DISMISSED WITH PREJUDICE, and his NYHRL

Claims are DISMISSED WITHOUT PREJUDICE;

10 Even if the Court were to have retained jurisdiction, for

substantially the same reasons it is denying Plaintiff’s Title VII

claims, it would deny his NYSHRL claims. See, e.g., Simmons v.

Akin Gump Strauss Hauer & Feld, LLP, 508 F. App’x. 10, 13 (2d Cir.

2013) (applying same McDonnell Douglas framework to Title VII and

NYHRL claims); Weinstock v. Columbia Univ., 224 F.3d 33, 42 n.1

(2d Cir. 2000) (same).

IT IS FURTHER ORDERED, upon entry of Judgment, the Clerk

of Court is directed to CLOSE this case; thereafter, copies of

this Memorandum and Order and the corresponding Judgment are to be

mailed to pro se Plaintiff at his address of record; and

IT IS FURTHER ORDERED that the Court, pursuant to 28

U.S.C. § 1915(a)(3), certifies that any appeal from this Order

would not be taken in good faith, and, therefore, in forma pauperis

status is denied for the purpose of any appeal. See Coppedge v.

United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: March 28, 2025

Central Islip, New York