# Caesar v. Village of Mineola

> District Court, E.D. New York · March 28, 2025

URL: https://www.frixlaw.com/law-library/cases/10835381

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 28, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10835381

## How later opinions describe it (automated extraction)

- explaining “solicitude for pro se litigants does not require [courts] to excuse failure to comply with understandable procedural rules”
- 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

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------x
CARL CAESAR,

Plaintiff, MEMORANDUM & ORDER
22-CV-0841(JS)(ST)
-against-

VILLAGE OF MINEOLA, VILLAGE OF MINEOLA
PARKS DEPARTMENT, AND THOMAS RINI,

Defendants.
----------------------------------x
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10835381. Public record. Not legal advice.