Oji v. Denis McDonough

United States District Court

Eastern District of New York

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

Christopher Oji,

Plaintiff, Memorandum and Order

- against - No. 22-cv-276 (KAM) (CLP)

Douglas A. Collins, Secretary,

Department of Veterans Affairs,

Defendant.

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

Kiyo A. Matsumoto, United States District Judge:

On January 18, 2022, Plaintiff Christopher Oji (“Plaintiff”

or “Oji”) initiated this action against the Secretary of the United

States Department of Veterans Affairs (the “VA”), Douglas A.

Collins1 (“Defendant” or “Collins”), alleging fourteen causes of

action pursuant to the Civil Rights Act of 1866, 42 U.S.C. § 1981

(“Section 1981”), Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e, et seq. (“Title VII”), New York State Human Rights

Law, N.Y. Exec. Law § 290, et seq. (“NYSHRL”), and New York City

Human Rights Law, N.Y.C. Admin Code §§ 8-101, et seq. (“NYCHRL”).

(ECF No. 1, Compl.) On August 21, 2024, Plaintiff filed an Amended

1 Plaintiff initially named then Secretary of the VA Denis Richard McDonough as

the Defendant in his January 18, 2022 Complaint. As the Secretary of the United

States Department of Veterans Affairs is a public official, the current

Secretary, Mr. Collins, is automatically substituted for Mr. McDonough. See

Fed. R. Civ. P. 25(d). The Clerk of Court is respectfully directed to update

the caption of this case to reflect this substitution.

Complaint against Mr. Collins alleging seven causes of action

pursuant only to Section 1981 and Title VII, seeking a declaratory

judgment and damages to address injuries Plaintiff allegedly

suffered due to racial and/or national origin discrimination,

retaliation, and hostile work environment. (ECF No. 42, “Am.

Compl.”)

Presently before the Court is Defendant’s motion for summary

judgment as to all of Plaintiff’s claims. (See ECF No. 50, “Not.

of Mot.”; ECF No. 51, “Def. Mot.”) For the reasons set forth

below, Defendant’s motion for summary judgment is GRANTED.

BACKGROUND

I. Procedural Background

On August 19, 2019, Plaintiff filed a Verified Administrative

Complaint with the United States Equal Employment Opportunity

Commission (“EEOC”) alleging discrimination based on race and

national origin. (ECF No. 1-1, Final Agency Decision at 12.) On

October 21, 2021, the EEOC issued a Final Agency Decision, which

concluded that Plaintiff “failed to establish by a preponderance

of the evidence that he was discriminated against or subjected to

hostile environment harassment based on national origin, race, or

reprisal” and granted Plaintiff the right to file a civil action.

(ECF No. 1-1, Final Agency Decision at 25-26.) Plaintiff commenced

2 All pin citations to the record refer to the page number assigned by the

court's CM/ECF system.

the instant action on January 18, 2022 by filing a complaint in

federal court. (ECF No. 1, Compl.)

On January 29, 2024, after the close of discovery, Defendant

moved for a pre-motion conference to discuss their anticipated

motion for summary judgment, attaching a Local Rule 56.1 Statement

of Material Facts. (See ECF No. 23,Def. Mot. for Pre-Motion Conf.

& 56.1 Stmt.) After several motions for an extension of time to

file a reply, Plaintiff filed his opposition on April 13 and 16,

2024 and Defendant filed a reply 56.1 Statement on May 3, 2024.

(See ECF Nos. 28-31, Pl. Opp.; ECF Nos. 34-35, Def. Reply.)

The Court held a pre-motion conference on August 1, 2024 to

discuss Defendant’s anticipated motion for summary judgment.

Following the conference, Plaintiff filed an Amended Complaint,

and Defendant filed a response on September 4, 2024. (See ECF No.

42, “Am. Compl.”; ECF No. 43, Def. Answer.) Thereafter, the

Parties proceeded to summary judgment briefing and the Court now

considers Defendant’s fully briefed motion for summary judgment.

II. Factual Background

Based on the Parties’ Local Rule 56.1 Statements,

declarations, and exhibits, the Court has construed the facts in

a manner favorable to the non-moving Plaintiff and finds that the

following material facts are not in genuine dispute.3

3 Local Civil Rule 56.1 provides that a party moving for summary judgment “shall

annex[ ] to the notice of motion a separate, short and concise statement,” “of

the material facts to which the moving party contends there is no genuine issue

The United States Department of Veteran Affairs (the “VA”) is

an agency of the executive branch of the federal government. (ECF

No. 55, Consolidated Statement of Material Facts, “Def. 56.1

Statement,” ¶ 1.) The VA Engineering Service is comprised of five

sections: “energy, safety, environmental, maintenance and repair,

and planning and design.” (Def. 56.1 Statement ¶ 4.) The

employees of each section of the Engineering Service “report to a

supervisor, called ‘chief,’” who reports to a “deputy chief

engineer,” who in turn reports to the “Chief of the Engineering

Service.” (Def. 56.1 Statement ¶ 5.)

to be tried.” Local Civ. R. 56.1(a). The party opposing the motion must

“include a correspondingly numbered paragraph responding to each numbered

paragraph in the statement of the moving party” with the opposition. Local

Civ. R. 56.1(b). Each of these paragraphs must cite to admissible evidence.

Local Civ. R. 56.1(d); see also Giannullo v. City of New York, 322 F.3d 139,

140 (2d Cir. 2003) (“[A] Local Rule 56.1 statement is not itself a vehicle for

making factual assertions that are otherwise unsupported in the record.”).

Here, Plaintiff “improperly interjects arguments and/or immaterial facts in

response to facts asserted by Defendant, without specifically controverting

those facts” in the majority of his responses. Risco v. McHugh, 868 F. Supp.

2d 75, 86 n.2 (S.D.N.Y. 2012); (see, e.g., Def. 56.1 Statement ¶¶ 10, 11, 12,

15, 16, 17, 18, 19, 33, 40, 41, 70, 85, 93, 99, 105, 116, 117, 118, 133, 135,

136.) These statements will be disregarded. Costello v. N.Y. State Nurses

Ass’n, 783 F. Supp. 2d 656, 661 n.5 (S.D.N.Y. 2011) (disregarding plaintiff's

responses to defendant's Rule 56.1 Statement where plaintiff responded with

conclusory assertions or legal arguments).

Moreover, Plaintiff’s “[r]esponses . . . which do not point to any evidence in

the record that may create a genuine issue of material fact, do not function as

denials, and will be deemed admissions of the stated fact.” Senno v. Elmsford

Union Free Sch. Dist., 812 F. Supp. 2d 454, 458 n.1 (S.D.N.Y. 2011); (see, e.g.,

¶¶ 6, 7, 20, 21, 40, 41, 54, 55, 56, 57, 71, 72, 75, 76, 77, 78, 79, 88, 89,

99, 109, 110, 114, 115, 119, 120, 137, 139.) Facts that were not contradicted

by citations to admissible evidence are also deemed admitted. See Ferraro v.

New York City Dep't of Ed., 404 F. Supp. 3d 691, 698 (E.D.N.Y. 2017), aff'd, 752

F. App'x 70 (2d Cir. 2018)(citing Giannullo v. City of New York, 322 F.3d 139,

140 (2d Cir. 2003) (“If the opposing party ... fails to controvert a fact so

set forth in the moving party's Rule 56.1 statement, that fact will be deemed

admitted.”).)

Plaintiff, who identifies as African American and Nigerian

American, was employed as a probationary employee as a “General

Engineer, GS-12, for the Planning and Design Section of the [VA]

Engineering Service at the Brooklyn VA Medical Center,” from

February 3, 2019 to August 16, 2019. (Def. 56.1 Statement ¶¶ 3,

34, 36, 38, 139.) The Brooklyn VA Medical Center is located at

800 Poly Place, Brooklyn, New York and “serves as a women’s

hospital, and other supporting facilities, compris[ed] of an out-

patient clinic, engineering building, information technology

support building, and a quarters building”. (Def. 56.1 Statement

¶ 3.) During Plaintiff’s employment, the Engineering Service

included five General Engineers who self-reported the following

national origins: “one Nigerian (Plaintiff), two Unknown, one

Vietnamese, and one Israeli,” and the following races: “three Black

(including Plaintiff), one Asian, and one white.” (Def. 56.1

Statement ¶¶ 6-7.)

Sam Fares, Chief of the Engineering Service, Philip Civello,

Chief of Planning and Design, and Llan Fouks, Assistant Chief

Engineer, interviewed Plaintiff for the General Engineer role.

(Def. 56.1 Statement ¶ 32.) Ultimately, as the Chief of the

Engineering Service, Mr. Fares made the decision to hire Plaintiff.

(Def. 56.1 Statement ¶ 33.) While employed at the VA, Mr. Civello

was Plaintiff’s direct supervisor. (Def. 56.1 Statement ¶ 35.)

Plaintiff’s employment with the VA Engineering Service became

effective on February 3, 2019 as a “career-conditional

appointment” subject to a one-year probationary period. (Def.

56.1 Statement ¶¶ 38-39.) During the probationary period, VA

supervisors “are required to study an employee’s potential closely

to determine whether s/he is suited for successful government work

[and, w]hen it becomes apparent that an employee’s conduct, general

character traits or capacity do not meet the requirements for

satisfactory service, the supervisor is required to initiate

action to separate the employee.” (Def. 56.1 Statement ¶¶ 40,

139; ECF No. 53-4, Def. Ex. 4, Termination Letter dated Aug. 13,

2019.)

A. The VA’s Policies Regarding Discrimination,

Harassment, and Retaliation

The VA maintains an “Equal Employment Opportunity [(“EEO”)],

Diversity and Inclusion, No FEAR, and Whistleblower Rights and

Protection Policy Statement” (the “EEO Policy Statement”) that

applies to all VA employees. (Def. 56.1 Statement ¶ 9.) The VA

posts EEO-related policies at its facilities and provides all EEO

policies, including the EEO Policy Statement, to all employees at

the start of their employment. (Def. 56.1 Statement ¶¶ 18-19.)

The EEO Policy Statement prohibits all “unlawful discrimination,

including workplace harassment, based on [among other things]

race, color, religion, [and] national origin . . . or retaliation

for opposing discriminatory practices or participating in the

discrimination-complaint process.” (Def. 56.1 Statement ¶¶ 10-11;

ECF No. 53-19, Def. Ex. 19 at 31.) The EEO Policy Statement also

includes avenues for reporting concerns of discrimination,

harassment, and retaliation. (Def. 56.1 Statement ¶ 12.)

The EEO Policy Statement advises employees that to file an

EEO complaint under 29 CFR § 1614 they “must contact the Office of

Resolution Management (“ORM”) within 45 calendar days” of the most

recent incident of alleged discrimination or retaliation. (Def.

56.1 Statement ¶ 15; ECF No. 53-19, Def. Ex. 19 at 2 (emphasis

added), 33 (“Employees and applicants for employment seeking

redress under the EEO complaint process must contact an EEO

counselor in VA’s ORM in person, by phone, in writing within 45

calendar days of the date of the alleged discriminatory event.”).)

As of March 16, 2016, employees could initiate contact with the

VA’s ORM 24 hours a day and 7 days a week. (Def. 56.1 Statement

¶ 16.) The EEO Policy Statement further advises employees that

contacting the VA’s local New York Harbor Healthcare System

(“NYHHS”) EEO office “does not constitute an initial contact for

complaint processing purposes.” (Def. 56.1 Statement ¶ 17; ECF

No. 53-19, Def. Ex. 19 at 2.)

Plaintiff completed three EEO training courses after joining

the VA and the VA requires all employees to take mandatory

Prevention of Workplace Harassment Awareness and No FEAR Act

training in the Talent Management System at the start of their

employment, and every two years thereafter. (Def. 56.1 Statement

¶¶ 20-21.)

1. VA Employees’ Statements to Plaintiff

Near the start of Plaintiff’s employment at the VA, one of

Plaintiff’s co-workers, Khai Ha, who identifies as Vietnamese,

informed Plaintiff of an experience Mr. Ha had in high school in

which he was bullied by African Americans and which, as a result,

affected Mr. Ha’s view of African Americans. (Def. 56.1 Statement

¶¶ 87, 91.) Plaintiff did not report this comment to a supervisor,

nor did Mr. Ha make any “discriminatory comments as to Plaintiff’s

race in the presence of a supervisor.”4 (Def. 56.1 Statement

¶¶ 88-89.) On May 26, 2019, Plaintiff sent Mr. Fares and Mr.

Civello an email detailing Mr. Ha’s behavior towards Plaintiff,

including Mr. Ha’s comment that Plaintiff should have been hired

as a GS level 5 employee—a lower grade employee—rather than a GS

level 12 employee, Mr. Ha’s refusal to answer Plaintiff’s

4 Plaintiff responds to these facts as follows: “plaintiff states that he

complained about Khai Ha’s discriminatory treatment of him, in writing,

including his statement that he should have been hired as a GS 5, and not follow

instructions given to him by his supervisor, among other things, in an email

dated May 26, 2019, to Civello and Sam Fares in response to which Fares told

him to forget about being trained.” (Def. 56.1 Statement ¶¶ 88-89, Pl.

Response.) Although there is no dispute that Plaintiff sent an email to Mr.

Fares and Mr. Civello on May 26, 2019, detailing Mr. Ha’s behavior towards

Plaintiff, Plaintiff’s response does not create a material dispute of fact as

to whether Plaintiff reported Mr. Ha’s comment regarding Mr. Ha’s experience

with African Americans in high school to a supervisor or whether Mr. Ha made

any discriminatory comments as to Plaintiff’s race in the presence of a

supervisor. Accordingly, these facts are deemed admitted for the purposes of

this motion. See Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73-74 (2d Cir.

2001) (emphasis added) (collecting cases) (“[W]here the cited materials do not

support the factual assertions in the Statements, the Court is free to disregard

the assertion.’”).

questions, the fact that Mr. Ha discouraged Plaintiff from seeking

training or following certain instructions, such as adding

Plaintiff’s signature to emails, and Mr. Ha saying he does not

give an “F” about Plaintiff in the presence of Mr. Fares and Mr.

Civello. (ECF No. 63-1, Ofodile Ex. 5 at 3.)

In another conversation on July 11 or 12, 2019, Plaintiff

asked Mr. Fares about his national origin, Mr. Fares informed

Plaintiff he was born in Egypt, and Plaintiff responded, “My

African Brother.” (ECF No. 55, Consolidated Statement of Material

Facts, “Pl. 56.1 Counterstatement” ¶ 30, Def. Response; ECF No.

65-10, Pl. Oji Ex. 10 at 3.)

B. Plaintiff’s Job Responsibilities and Events Leading up

to his Termination

As noted above, Plaintiff was employed as a probationary

“General Engineer, GS [level] 12, for the Planning and Design

Section of the [VA] Engineering Service at the Brooklyn VA Medical

Center.” (Def. 56.1 Statement ¶ 34.) The General Engineer job

description summarizes Plaintiff’s position and job duties as

follows:

Leads and directs cross-functional teams to deliver

Department of Veterans Affairs (VA) construction

projects within the constraints of schedule, budget

and scope. Responsible for coordination and

oversight of all activities relating to multiple

concurrent architectural/engineering design

efforts and construction endeavors. Serve as the

designer/consultant in the planning, design and

supervision of new construction, as well as

alterations and additions to the existing building,

grounds, utility plants and systems.

(Def. 56.1 Statement ¶¶ 42-43.) The General Engineer job

description also included a detailed description of the design and

constructions phases, as well as a General Engineer’s ancillary

responsibilities as a Contracting Officer’s Representative

(“COR”). (Def. 56.1 Statement ¶¶ 44-46.) During the “design

phase,” a General Engineer is expected to, among other things,

create a statement of work (“SOW”), prepare, design, and plan

specifications and cost estimates for projects, review project

submittals, and select, lead, and direct an Architectural and

Engineering (“A/E”) firm throughout the design process. (Def.

56.1 Statement ¶ 44.) During the ”construction phrase,” the

General Engineer “leads site management staff in day-to-day

project management,” monitors and controls budgets, and prepares

program metrics, among other responsibilities set forth in the

General Engineer job description. (Def. 56.1 Statement ¶ 45.) A

General Engineer is also expected to serve as a COR, which includes

administering and approving contracts related to building

services, design projects, and construction projects, anticipating

and resolving project-related problems, developing “contingency

plans to mitigate unresolved problems,” and assisting in

developing long range planning for various programs. (Def. 56.1

Statement ¶ 46.)

During the interview process, Plaintiff answered nineteen

questions regarding his experience and competency to perform the

role of General Engineer, including whether Plaintiff was

“[f]amiliar with reviewing and commenting on contract plans,”

“[k]nowledgeable of cost estimates for engineering, technical

trades and industrial work in order to develop statements of work

and costs estimates for construction, renovation, repair and

maintenance work completed,” and whether he could “[r]eview[]

project submittal and shop drawings, analyze equipment

requirements while providing estimates on labor and material

costs.” (Def. 56.1 Statement ¶¶ 48-56.) In response to these

questions, Plaintiff certified either, “I have performed this task

on the job. My work on this task was monitored closely by a

supervisor or senior employee to ensure compliance with proper

procedures” or “I have performed this task as a regular part of my

job. I have performed it independently and normally without review

by a supervisor or senior employee.” (Def. 56.1 Statement ¶¶ 57,

48-56.)

Plaintiff’s resume reflects that he obtained a Bachelor of

Electrical Engineering degree from Auburn University and his prior

work history including employment at Gannett Fleming as an

Electrical Engineer, at Saturn Oil & Gas Consulting Firm where he

worked on cost estimates, at Kupper Engineering where he performed

power system analysis for hospitals, and at the New Jersey

Department of Community Affairs as an Electrical Plan Reviewer.

(Pl. 56.1 Counterstatement ¶¶ 3-5, 8, 10.) Mr. Fares interviewed

approximately five applicants for the role of General Engineer,

including Plaintiff, and asked each applicant numerous questions

during the interview, which lasted approximately 45 minutes to one

hour. (Pl. 56.1 Counterstatement ¶ 14, Def. Resp.) Defendant

also conducted a background check, which involved checking

Plaintiff’s work history. (Pl. 56.1 Counterstatement ¶ 13.) Mr.

Fares testified that he “believed at the time [of the interviews]

that [Plaintiff] had the experience that [the VA was] looking for”

based on Plaintiff’s answers during his interview. (Pl. 56.1

Counterstatement ¶ 14, Def. Resp.)

Although co-workers were not required to offer assistance to

new employees, Plaintiff received mentorship from Kereem Vargas,

a General Engineer in the Planning and Design Section. (Def. 56.1

Statement ¶¶ 93, 95.) Like Plaintiff, Mr. Vargas identifies as

African American and has a background in electrical engineering.

(Def. 56.1 Statement ¶¶ 96-97.) Mr. Vargas took Plaintiff “under

[his] wing” and “helped [Plaintiff] with his daily duties,” “showed

[Plaintiff] around,” “allowed [Plaintiff] to shadow him,” “showed

[Plaintiff] what to look for,” “showed [Plaintiff] how to do

documentation,” and “assisted Plaintiff] as best as [Mr. Vargas]

could.” (Def. 56.1 Statement ¶¶ 98-99.) Mr. Vargas also showed

Plaintiff how he had completed some of his engineering projects,

including a project that involved the installation of a generator,

and showed Plaintiff how to complete certain administrative forms.

(Def. 56.1 Statement ¶¶ 100-102.)

Plaintiff later identified Mr. Vargas as a witness in

Plaintiff’s EEO proceeding and Mr. Vargas testified that he did

“not conclude that [his] 1st or 2nd line supervisors discriminated

against [Plaintiff] for race/gender/age/sexual orientation/etc.

Nor was the office a hostile work environment to work in. Another

co-worker and I are of African American descent as well, and if

there was racial discrimination it would be towards all of us not

just one person.” (Def. 56.1 Statement ¶ 105; ECF No. 53-28, Def.

Ex. 28, Vargas Aff. at 2, 5-6.)

1. Plaintiff’s Assignments

Plaintiff was assigned to work on four projects while employed

at the VA: “(1) St. Albans Install Generator Project, (2) Oncology

Pharmacy Renovation Project, (3) Design Upgrade Architectural

Finishes, and (4) Critical Life Safety Project.” (Def. 56.1

Statement ¶ 63.)

As to the St. Albans Install Generator Project, Plaintiff

submitted an “Independent Government Cost Estimate” (“ICGE”) for

the project on April 17, 2019.5 (Def. 56.1 Statement ¶ 67; ECF

5 The St. Albans ICGE submitted by Plaintiff appears to erroneously list April

17, 2018 as the date of submission, however, Plaintiff was not employed by the

VA until February 3, 2019 and Defendant’s exhibits demonstrate that Plaintiff

emailed the St. Albans ICGE to Philip Civello on April 17, 2019. (ECF No. 53-

9, Def. Ex. 9, St. Albans ICGE at 2; ECF No. 53-10, Def Ex. 10, E-mail from

Plaintiff to Mr. Civello dated Apr. 17, 2019 at 2.)

No. 53-9, Def. Ex. 9 at 2.) The ICGE included line items for “1.

Construction Work Breakdown,” which is split into further

subcategories for line items such as electrical, plumbing,

structural, demolition, exterior improvement, abatement,

temperature systems, and earth work; “2. Construction Profit and

Overhead Cost”; “3. Construction Materials Cost”; and “4. A/E

Design Fee.” (Def. 56.1 Statement ¶¶ 68-69; ECF No. 53-9, Def.

Ex. 9 at 2.) The ICGE also included columns for “Estimated Hours,”

“Rate[ ] Per Hour ($),” and “Total Estimated Cost ($).” (ECF No.

53-9, Def. Ex. 9 at 2.)

To “determine the total estimated cost, Plaintiff was

required to multiply the estimated hour[s] by the rate per hour,

and add up all the subcategories and categories [set forth on] the

ICGE.”6 (Def. 56.1 Statement ¶ 70.) On the St. Albans ICGE,

however, Plaintiff determined a total project cost of

$1,430,000.00, but “left blank the [columns for] estimated hours

and rates per hour.”7 (Def. 56.1 Statement ¶¶ 71-72; ECF No. 53-

6 Plaintiff’s response does not specifically dispute Defendant’s statement and

instead states that “he never visited the site and specifically asked to visit

but was denied and followed the prior SOW completed by another General Engineer

and the instructions and directions of his supervisor Philip Civello.” (Def.

56.1 Statement ¶ 70, Pl. Response.) As set forth in Footnote 3, supra,

Plaintiff’s response does not establish a material dispute of fact. Local Rule

56.1 provides that each statement of fact “will be deemed admitted for purposes

of the motion unless specifically controverted” by the opposing

party. “Accordingly, 56.1 statements not explicitly denied by [P]laintiff are

deemed admit[ted].” Buckman v. Calyon Sec. (USA) Inc., 817 F. Supp. 2d 322,

328 n.42 (S.D.N.Y. 2011) (citing Stepheny v. Brooklyn Hebrew Sch. For Special

Children, 456 F. Supp. 2d 248, 255 n.4 (E.D.N.Y. 2005)).

7 Plaintiff denies these statements, but his cited materials do not support his

contention or establish a disputed fact. Local Rule 56.1(d) provides that

9, Def. Ex. 9 at 2.)

In an email dated April 17, 2019, Plaintiff’s direct

supervisor, Mr. Civello, informed Plaintiff that his “estimate

[for the project of $1,430,000.00] does not include the cost of

the new generator itself,” which would need to be included in the

St. Albans ICGE. (Def. 56.1 Statement ¶ 75.) In an April 24,

2019 email, Mr. Civello also asked Plaintiff, “[d]idn’t you get

the A/E’s construction estimate cost estimate for the Replace 250

Penske generator[?] That estimate should be broken down by labor

and material and should show the hourly rates and hours for each

trade. This is not what I said to do.” (Def. 56.1 Statement ¶ 76;

ECF No. 53-10, Def. Ex. 10 at 4.) Ultimately, Plaintiff

underestimated the cost of the St. Albans Install Generator Project

by “over $1 million,” in part due to his failure to factor in the

cost of the generator and his failure to detect the need to replace

antiquated switchgear, an issue later identified by the General

Engineer who took over the St. Albans Install Generator Project

from Plaintiff. (Def. 56.1 Statement ¶¶ 77-80.)

“[e]ach statement of material fact by a movant or opponent must be followed by

citation to evidence which would be admissible” as required by Fed. R. Civ. P.

56(e). “[D]istrict courts in the Southern and Eastern Districts of New York

have interpreted current Local Rule 56.1 to provide that ‘where there are no[

] citations or where the cited materials do not support the factual assertions

in the Statements, the Court is free to disregard the assertion.’” Holtz v.

Rockefeller & Co., Inc., 258 F.3d 62, 73-74 (2d Cir. 2001) (emphasis added)

(collecting cases). Accordingly, facts Plaintiff disputes without citing to

admissible evidence or without citing to evidence that supports the factual

assertions in his response, will be deemed admitted. Id.

Mr. Fares, who recommended that Plaintiff be terminated,

testified that Plaintiff did not understand the assigned projects,

had “no urgency to move the project forward,” and was “more focused

on . . . self-development, getting his certificate, [and] getting

some training.” (Def. 56.1 Statement ¶ 85; ECF No. 53-1, Def. Ex.

1 at 22.)

2. Plaintiff’s Requests for Training

General Engineers at the VA are required to complete the

Contracting Officer Representative Training (“COR Training”),

which gives General Engineers “the legal authority to provide

direction [and] coordination throughout [a] project.”8 (Def. 56.1

Statement ¶¶ 109-10; ECF No. 53-1, Def. Ex. 1, Fares Tr. at 11.)

Plaintiff completed COR Training in March 2019 and was designated

8 Plaintiff denies this statement and cites to “Fares 2021 EEOC Hearing Trs pp.

59-63,” which is purportedly attached to the Amended Declaration of Anthony

Ofodile as Exhibit 1. (See Def. 56.1 Statement ¶ 109, Plaintiff’s Response;

ECF No. 62, Am. Decl. Anthony Ofodile ¶ 2.) As an initial matter, the Court

notes that Mr. Fares’s EEOC Hearing Transcript was not attached as Exhibit 1 to

Mr. Ofodile’s Declaration, but was submitted by Defendant as Ex. B to a Letter

dated February 28, 2025. (See ECF No. 57, Letter dated Feb. 28, 2025.) On

August 27, 2025, Plaintiff filed a letter advising the Court that certain

exhibits—including Mr. Fares’ EEOC Hearing Transcript—were misfiled or not filed

at all, and seeking to re-file the correctly labelled exhibits. (See ECF No.

69 at 1.) On September 3, 2025, Defendant advised the Court that they did not

object to Plaintiff’s motion, and, on September 9, 2025, Plaintiff filed the

corrected exhibits. (See ECF No. 73, Def. Resp.; ECF Nos. 75 & 76, Corrected

Ofodile Decls. & Exhibits; ECF No. 77, Pl. Letter dated Sept. 9, 2025.)

Having reviewed the EEOC Hearing Transcript for Mr. Fares, the cited transcript

does not support Plaintiff’s assertion that any training beyond the COR Training

was required to perform the job of General Engineer. Accordingly, as noted in

Footnote 3, supra, facts Plaintiff disputes without citing to admissible

evidence or without citing to evidence that supports the factual assertions in

his response, will be deemed admitted. Holtz v. Rockefeller & Co., Inc., 258

F.3d 62, 73-74 (2d Cir. 2001) (emphasis added) (collecting cases).

for work as a COR immediately thereafter. (Def. 56.1 Statement

¶¶ 112-13.) Despite being trained and qualified as a COR,

Plaintiff could not articulate the role of a Contracting Officer.

(Def. 56.1 Statement ¶ 61.)

The VA also requires employees to complete administrative

training on topics such as ethics, time keeping, and attendance.

(Def. 56.1 Statement ¶ 114.) Technical trainings, such as Life

Safety Code Trainings and Occupational Safety and Health

Administration (“OSHA”) Trainings are occasionally available to

General Engineers at the VA, but do not “take precedence over any

priority for the [VA] medical center.” (Def. 56.1 Statement ¶ 115;

ECF No. 53-1, Def. Ex. 1, Fares Tr. at 10-11.)

On February 28, 2019, Peter Leszczak sent an email stating

that it was the “Last Call” to sign up for Life Safety Code

Training, which Mr. Civello forwarded to Plaintiff the same day

with the message, “Chris, please make sure you sign up to take

this training. This is the last call to register so review it and

let me know if there’s any action required by me.” (Def. 56.1

Statement ¶ 116; ECF No. 53-29, Def. Ex. 29 at 2.) Plaintiff did

not submit a request for the Life Safety Code Training referenced

in Mr. Leszczak’s February 28, 2019 E-mail until March 15, 2019,

five days before the training was scheduled to take place. (Def.

56.1 Statement ¶ 117.) Mr. Civello approved Plaintiff’s request

on March 18, 2019, but Plaintiff failed to request a travel

authorization and did not attend the training. (Def. 56.1

Statement ¶ 118.)

On May 10, 2019, Mr. Civello nominated Plaintiff for the next

available OSHA-30 Training. (Def. 56.1 Statement ¶ 119.) On May

14, 2019, Plaintiff emailed Mr. Leszczak to ask when the next Life

Safety Code and OSHA training would be held, and Mr. Leszczak

informed Plaintiff that none were currently scheduled. (Def. 56.1

Statement ¶ 120.)

On May 19, 2025, Plaintiff sought to attend an electrical

continuing education seminar for his New Jersey Electrical

Inspector HHS License. (Def. 56.1 Statement ¶ 123.) Mr. Fares

informed Plaintiff that a New Jersey Electrical Inspector HHS

License was “not required by the agency” and, as a result,

Plaintiff could use annual leave to attend the training, but Mr.

Fares could not authorize the VA to pay for the training. (Def.

56.1 Statement ¶ 125.)

C. Plaintiff’s Evaluations and Termination from the VA

On May 3, 2019, Plaintiff had a 90-day progress review with

Mr. Fares, Mr. Civello, and Plaintiff’s union representative, Pete

Marsala. (Pl. 56.1 Counterstatement ¶ 19, Def. Response; ECF No.

56-5, Def. Ex. 39.) As part of the 90-day progress review,

Plaintiff received a letter titled “Placement follow up evaluation

and progress review,” signed by Mr. Fares and Plaintiff, which

made the following observations regarding Plaintiff’s performance:

1. Lack of understanding of agency goals and

vision; 2. Lack of job knowledge such as cost

estimating, SOW writing, project management and COR

responsibilities; 3. Incapable of adapting to

teamwork environment; 4. Unprofessional behaviors

towards coworkers; 5. Multiple tardiness; [and] 6.

Abuse of time.

(Def. 56.1 Statement ¶ 126; ECF No. 53-16, Def. Ex. 16 at 2.) The

letter also informed Plaintiff that his performance was “adversely

impacting” VA operations and that if Plaintiff did “not immediately

improve [his] performance and sustain it at an acceptable level or

if there are any other performance problems, [Plaintiff] will be

subject to further disciplinary action up to and including

termination of employment.” (Def. 56.1 Statement ¶¶ 127-28; ECF

No. 53-16, Def. Ex. 16 at 2.)

On July 8, 2019, Plaintiff emailed an Equal Employment

Opportunity (“EEO”) Specialist in the VA’s New York Harbor

Healthcare System EEO Office, Milagros M. Andino, and stated that

he was “not trying to file a complaint,” but had “questions about

workplace harassment/bullying” that he would like to discuss.

(Def. 56.1 Statement ¶¶ 129-30; ECF No. 53-17, Def. Ex. 17 at 4.)

On July 19, 2019, Plaintiff attended another progress

evaluation meeting with Mr. Fares, Mr. Civello, and Mr. Marsala.

(Def. 56.1 Statement ¶ 132; ECF No. 56-5, Def. Ex. 39, Evaluation

Tr. at 2.) Plaintiff received a “NOT SATISFACTORY” performance

grade in the “Job Knowledge and Performance Evaluation” review,

which was signed only by Mr. Fares and a witness, Mr. Marsala, as

Plaintiff refused to sign.9 (Def. 56.1 Statement ¶ 132; ECF No.

53-5, Def. Ex. 5 at 2-3; ECF No. 56-5, Evaluation Tr. at 2.) The

“Job Knowledge and Performance Evaluation” review provided

examples of Plaintiff’s unsatisfactory performance, including,

among other things, “poor performance and understanding of duties

and responsibilities,” “accus[ing] coworkers of setting [him] up

for failure, which is a continuation of poor team work, failure to

maintain professional behaviors and creating [a] hostile work

place,” and “complaining about workload.” (ECF No. 53-5, Def. Ex.

5 at 2; Def. 56.1 Statement ¶ 132.)

Later the same day, on July 19, 2019, Mr. Fares sent a letter

to the Chief of Human Resources with the subject “Termination

Request,” and requested that Plaintiff be terminated due to

unsatisfactory performance and “unprofessional conduct towards his

coworkers.” (Def. 56.1 Statement ¶ 133; ECF No. 53-35, Def. Ex.

35 at 2.) On February 19, 2020, Linda Dawson, chief Human Resource

Management Service, submitted a sworn affidavit as evidence in the

9 Plaintiff alleges that the July 19, 2019 evaluation was “backdated,” but cites

no admissible evidence in support of this statement other than his own

Affidavit. (Pl. 56.1 Counterstatement ¶ 38; ECF No. 65, Oji Aff. ¶¶ 30, 34.)

This is not sufficient. Fed. R. Civ. P. 56(c)(4) requires supporting and

opposing affidavits to “be made [based] on personal knowledge [and to] set forth

such facts that would be admissible in evidence.” An affidavit “grounded on

suspicion, and bound together with rumor and hearsay” that is not grounded in

“personal knowledge . . . of the events recounted in the affidavit” is not

sufficient to allege material facts to withstand summary judgment. Applegate

v. Top Assoc., Inc., 425 F.2d 92, 96-97 (2d Cir. 1970); see also Butler v.

Raytel Med. Corp., 150 F. App’x 44, (2d Cir. 2005) (rejecting employee’s

affidavit that was “not supported by other record evidence or by specific

examples in [employee’s] own testimony”). Moreover, even if his evaluation was

backdated, Plaintiff does not explain why that would be a material factual

dispute warranting denial of Defendant’s motion for summary judgment.

adjudication of Plaintiff’s EEOC Complaint, confirming Mr. Fares

had requested Plaintiff’s termination prior to his termination on

August 16, 2019, and had also provided documents in support of

Plaintiff’s unsatisfactory performance. (Pl. 56.1 Counterstatement

¶ 39.)

On July 19, 2019, Plaintiff again emailed EEO Specialist Ms.

Andino and stated, “I work in the Engineering building and have

endure[d] hostile work environment, discrimination, and bullying.

I am attach[ing] a performance review which is bad and

unacceptable. I want to file a complaint and open up an

investigation.” (Def. 56.1 Statement ¶ 134; ECF No. 53-17, Def.

Ex. 34 at 3.) Ms. Andino responded the same day and informed

Plaintiff that he may request mediation or facilitation with his

supervisor, but if he wished to file a complaint of discrimination,

“contacting the local EEO office does not constitute an initial

contact for complaint processing purposes.” (Def. 56.1 Statement

¶ 135; ECF No. 53-34, Def. Ex. 34 at 2.) Ms. Andino also provided

the contact information for the Office of Resolution Management

(“ORM”) for filing a complaint of discrimination so that Plaintiff

could “preserve [his] EEO rights.” (Def. 56.1 Statement ¶ 135;

ECF No. 53-34, Def. Ex. 34 at 2.)

On July 22, 2019, a different EEO Specialist, Walter L.

Williams, also provided Plaintiff with certain policies and

informed Plaintiff that contacting the local New York Harbor

Healthcare System (“NYHHS”) EEO Office did “not constitute an

initial contact for complaint processing purposes.” (Def. 56.1

Statement ¶ 136; ECF No. 53-17, Def. Ex. 17 at 2.) Mr. Williams

also provided the contact information for the VA’s ORM for filing

a complaint of discrimination. (Def. 56.1 Statement ¶ 136; ECF

No. 53-17, Def. Ex. 17 at 2.) Both Ms. Andino and Mr. Williams

informed Plaintiff that he must contact ORM within 45 calendar

days of the incident or personnel action that he considered to be

discriminatory in nature. (ECF No. 53-17, Def. Ex. 17 at 2; ECF

No. 53-34, Def. Ex. 34 at 2.) Plaintiff initiated contact with an

EEO counselor in the VA’s ORM on July 22, 2019. (Def. 56.1

Statement ¶ 137.)

On July 23, 2019, Plaintiff emailed Mr. Civello and informed

Mr. Civello that he would not come in to work due to a doctor’s

appointment. (Def. 56.1 Statement ¶ 138; ECF No. 53-37, Def. Ex.

37 at 2-3.) The same day, Mr. Civello forwarded Plaintiff’s email

to Mr. Fares and noted that he advised Plaintiff “on Friday and

Monday to enter his S[ick] L[eave] request in VATAS[, the Veterans

Affairs Time and Attendance System]. The previous two S[ick]

L[eave] request[s] have not been entered. He was in yesterday at

his desk for a while but did not enter today’s S[ick] L[eave]

request into VISTA either.” (ECF No. 53-37, Def. Ex. 37 at 2.)

Mr. Fares responded, copying Plaintiff and others, and noted that

Plaintiff “failed to follow supervisor instructions and violated

VA time and attendance policy. Therefore, he will be charged AWOL

for the time that he failed to request.” (ECF No. 53-37, Def. Ex.

37 at 2.) On July 29, 2019, Plaintiff received “Written

Counseling” for insubordination, failure to carry out supervisor

instructions, and violating agency time and attendance procedure,

which led to Plaintiff being marked Absent Without Leave (“AWOL”).

(Def. 56.1 Statement ¶ 138; ECF No. 53-38, Def. Ex. 38.)

On August 13, 2019, at Mr. Fares’ recommendation, the VA

terminated Plaintiff’s employment during his one-year probationary

period, citing “unsatisfactory performance” that was “adversely

impacting the operations of [the] Section, the medical center,

[and] patient care.” (Def. 56.1 Statement ¶¶ 41, 140; ECF No. 53-

4, Def. Ex. 4, Termination Letter dated Aug. 13, 2019.)

Plaintiff’s termination became effective on August 16, 2019. (Def.

Ex. 4, Termination Letter dated Aug. 13, 2019.)

LEGAL STANDARD

Summary judgment shall be granted to a movant who demonstrates

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

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

P. 56(a). “A fact is ‘material’ for these purposes when it ‘might

affect the outcome of the suit under the governing law.’” Rojas

v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d Cir.

2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). No genuine issue of material fact exists “unless there

is sufficient evidence favoring the nonmoving party for a jury to

return a verdict for that party.” Anderson, 477 U.S. at 243. “If

the [non-moving party's] evidence is merely colorable, or is not

significantly probative, summary judgment may be granted.” Id. at

249-50 (citations omitted).

When bringing a motion for summary judgment, the movant

carries the burden of demonstrating the absence of any disputed

issues of material fact and entitlement to judgment as a matter of

law. Rojas, 660 F.3d at 104. In deciding a summary judgment

motion, the court “must resolve all ambiguities and draw all

reasonable inferences against the moving party.” Flanigan v. Gen.

Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001) (citing Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

A moving party may indicate the absence of a factual dispute by

“showing . . . that an adverse party cannot produce admissible

evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B). Once

the moving party has met its burden, the nonmoving party “must

come forward with admissible evidence sufficient to raise a genuine

issue of fact for trial in order to avoid summary

judgment.” Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d

Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986)). Finally, the “mere existence of a scintilla of evidence

in support of the plaintiff's position will be insufficient; there

must be evidence on which the jury could reasonably find for the

plaintiff.” Anderson, 477 U.S. at 252.

DISCUSSION

I. Plaintiff’s Title VII Discrimination Claims based on a

Failure to Train (Claims One and Two)

Plaintiff’s First and Second Causes of Action allege in part

racial discrimination and discrimination in the terms and

conditions of Plaintiff’s employment when he was denied “necessary

and required training,” in violation of Title VII.10 (Am. Compl.

¶¶ 54, 56.)

Title VII prohibits an employer from discriminating against

any individual with respect to “compensation, terms, conditions,

or privileges of employment, because of such individual's race,

color, religion, sex or national origin.” 42 U.S.C. § 2000e-

2(a)(1). “Before bringing a federal lawsuit under Title VII,

[however,] a ‘federal government employee must timely exhaust the

administrative remedies at his disposal.’” Tassy v. Buttigieg, 51

F.4th 521, 530 (2d Cir. 2022), aff’d, 51 F.4th 521 (2d Cir. 2022)

(quoting Mathirampuzha v. Potter, 548 F.3d 70, 74 (2d Cir. 2008));

see also Hardaway v. Hartford Pub. Works Dep't, 879 F.3d 486, 489

(2d Cir. 2018) (“As a precondition to filing a Title VII claim in

federal court, a plaintiff must first pursue available

administrative remedies and file a timely complaint with the

10 Plaintiff’s First Cause of Action also alleges racial discrimination and

discrimination in the terms and conditions of Plaintiff’s employment when he

was denied training in violation of Section 1981, which the Court addresses in

Section II, infra. (Am. Compl. ¶¶ 54.)

EEOC.”).

EEOC regulations “establish the applicable administrative

procedures that a federal employee must exhaust prior to filing

suit,” Mathirampuzha, 548 F.3d at 74–75, and include, among other

things, that a claimant “must initiate contact with a[n] [EEO]

[c]ounselor within 45 days of the date of the matter alleged to be

discriminatory.” 29 C.F.R. § 1614.105(a)(1). This “45-day period

serves as a statute of limitations; thus, as a general rule, claims

alleging conduct that occurred more than 45 days prior to the

employee's initiation of administrative review are time-

barred.” Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001)

(citations omitted).

“In considering the timeliness of discrete act claims, [the

Second Circuit has] held that each actionable discrete act

‘occur[s] on the day that it happened.’” Tassy, 51 F.4th at 531

(quoting Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 79

(2d Cir. 2015)). Indeed, courts in this Circuit routinely find

that a “failure to train is a discrete act.” Id. at 235

(citing Harvin v. Manhattan & Bronx Surface Transit Operating

Auth., No. 14-cv-5125 (CBA) (RER), 2018 WL 1603872, at *4 (E.D.N.Y.

March 30, 2018), aff'd, 767 F. App'x 123 (2d Cir. 2019); Bright v.

Coca-Cola Refreshments USA, Inc., No. 12-cv-234 (BMC), 2014 WL

5587349, at *13 (E.D.N.Y. Nov. 3, 2014), aff'd, 639 F. App'x 6 (2d

Cir. 2015); Thomas v. City of New York, 953 F. Supp. 2d 444, 452

(E.D.N.Y. 2013)).

The VA’s EEO Policy Statement advises employees that to file

an EEO complaint pursuant to 29 CFR § 1614 they “must contact the

Office of Resolution Management (“ORM”) within 45 calendar days”

of the most recent incident of alleged discrimination or

retaliation. (Def. 56.1 Statement ¶ 15; ECF No. 53-19, Def. Ex.

19 at 2 (emphasis added).) When Plaintiff reached out to the VA’s

local NYHHS EEO office on July 8, 2019 and July 19, 2019, both EEO

employees informed Plaintiff that his email did not constitute an

initial contact for filing a discrimination complaint and that he

must contact the VA’s ORM to file a discrimination complaint and

preserve his EEO rights. (ECF No. 53-17, Def. Ex. 17 at 3; ECF

No. 53-34, Def. Ex. 34 at 2.) Nevertheless, Plaintiff did not

initiate contact with an EEO counselor in the VA’s ORM and file a

discrimination complaint until July 22, 2019. (Def. 56.1 Statement

¶ 137.) Based on the July 22, 2019 date of contact, any discrete

act of discrimination that occurred prior to June 7, 2019 is

“barred by the applicable statute of limitations.” Tassy, 51 F.4th

at 531.

Plaintiff cannot point to a single instance in which he was

denied training during this limitations period. Accordingly,

Plaintiff’s First and Second Causes of Action based on an alleged

failure to train in violation of Title VII “must be dismissed as

time-barred.” Tassy, 51 F.4th at 533.

II. Plaintiff’s Remaining Discrimination Claims under Section

1981 and Title VII (Claims One and Six)

Plaintiff’s First Cause of Action also alleges racial

discrimination and discrimination in the terms and conditions of

Plaintiff’s employment when he was denied “necessary and required

training,” in violation of Section 1981. (Am. Compl. ¶ 54.)

Plaintiff’s Sixth Cause of Action alleges Plaintiff was

“discriminated against when he was given [an] unsatisfactory

evaluation, declared AWOL and his employment [was] terminated in

August 2019 because he is Black and of Nigerian national origin”

in violation of Section 1981 and Title VII. (Am. Compl. ¶ 64.)

A. Legal Standard

As noted above, Title VII prohibits an employer from

discriminating against any individual with respect to

“compensation, terms, conditions, or privileges of employment,

because of such individual's race, color, religion, sex or national

origin.” 42 U.S.C. § 2000e-2(a)(1). “As relevant here, [Section]

1981 claims of racial discrimination are analyzed under the same

[substantive] standard as Title VII claims of discrimination.”

McKinney v. County of Dutchess, No. 24-1195, 2025 WL 1499364, at

*2 (2d Cir. May 27, 2025) (Summary Order) (citing Vivenzio v. City

of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010)).

Under the Supreme Court's McDonnell Douglas burden-shifting

framework, “a plaintiff must first establish a prima facie case of

discrimination by showing: (1) [he] belonged to a protected class,

(2) was qualified for the position [he] held or sought, and (3)

suffered an adverse employment action (4) under circumstances

giving rise to an inference of discriminatory intent.” Fanelli v.

New York, 200 F. Supp. 3d 363, 370 (E.D.N.Y. 2016) (citing Terry

v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003)); see also

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). “The burden

that an employment discrimination plaintiff must meet in order to

defeat summary judgment at the prima facie stage is de minimis.”

McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997) (citing

Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203-04 (2d Cir. 1995);

Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994);

Dister v. Cont’l Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)).

“[O]nce a plaintiff has established a prima facie case, the

burden shifts to the defendant, which is required to offer a

legitimate, non-discriminatory rationale for its actions.” Terry,

336 F.3d at 138 (citing McDonnell Douglas, 411 U.S. at 802).

“[O]nce the defendant has made a showing of a neutral reason for

the complained of action, ‘to defeat summary judgment . . . the

plaintiff's admissible evidence must show circumstances that would

be sufficient to permit a rational finder of fact to infer that

the defendant's employment decision was more likely than not based

in whole or in part on discrimination.’” Terry, 336 F.3d at 138

(quoting Stern v. Trustees of Columbia Univ. in the City of N.Y.,

131 F.3d 305, 312 (2d Cir. 1997)).

B. Application

1. Prima Facie Case of Discrimination

Here, the Parties do not dispute that Plaintiff is a member

of a protected class. The Parties dispute, however, whether

Plaintiff was qualified for the position of General Engineer as a

GS level 12 employee and whether Plaintiff suffered an adverse

employment action. The Court will address each of these arguments

in turn.

a. Qualifications

First, the Court finds Plaintiff has established he was

qualified to be hired on a probationary basis for the role of

General Engineer. “The Court’s task in assessing Plaintiff’s

qualifications at the prima facie stage is a limited one.”

E.E.O.C. v. Town of Huntington, No. 05-cv-4559 (DRH) (WDW),

2008 WL 361136, at *6 (E.D.N.Y. Feb. 8, 2008). The Second Circuit

has “long emphasized that the qualification prong must not be

interpreted in such a way as to shift into the

plaintiff's prima facie case an obligation to anticipate and

disprove the employer's proffer of a legitimate, non-

discriminatory basis for its decision.” Gregory v. Daly, 243 F.3d

687, 696 (2d Cir. 2001) (citation omitted). “Rather, [Plaintiff]

need only make the ‘minimal showing’ that [he] possesses the basic

skills necessary for the performance of the job.” Id.

Here, Defendant admits that Mr. Fares testified that he

believed Plaintiff had the experience the VA was looking for in

the role of General Engineer when Plaintiff was hired. (See Pl.

56.1 Counterstatement ¶ 7, Def. Resp.) Moreover, it is undisputed

that Mr. Fares interviewed approximately five applicants for the

role of General Engineer before offering the position to Plaintiff.

(See Pl. 56.1 Counterstatement ¶ 14, Def. Response.) Plaintiff’s

resume also includes experience in the engineering field,

including experience doing cost estimates and reviewing

engineering design drawings. (Pl. 56.1 Counterstatement ¶¶ 3-5,

8, 10.) Before hiring Plaintiff, Defendant conducted a background

check, which involved checking Plaintiff’s work history, prior to

offering Plaintiff the role. (Pl. 56.1 Counterstatement ¶ 13.)

Accordingly, based on these factors, contrary to Defendant’s

contentions that Plaintiff was not qualified for the position,

Plaintiff has made the “minimal showing” that he “possesses the

basic skills necessary for performance of [the] job,” particularly

where, as here, he was ultimately hired for the position. Owens v.

N.Y. City Housing Auth., 934 F.2d 405, 409 (2d Cir. 1991) (quoting

Powell v. Syracuse Univ., 580 F.2d 1150, 1155 (2d Cir. 1978), cert.

denied, 439 U.S. 984 (1978)); see also Gregory, 243 F.3d at 696

(“In a discharge case in which the employer has already hired the

employee into the job in question, the inference of minimal

qualification is . . . easier to draw.”).

b. Adverse Employment Action

Next, Defendant argues that Plaintiff cannot establish that

unsatisfactory performance evaluations and placement on absent

without leave (“AWOL”) status (Claim Six), as well as a denial of

training (Claim One) constitute “legally actionable adverse

employment action[s].”11 (ECF No. 51, Def. Mot. at 14.) This

Court agrees. Moreover, Plaintiff fails to provide any response

to Defendant’s argument as to the third element of a prima facie

case of discrimination.12

A materially adverse employment action must be “more

disruptive than a mere inconvenience or an alteration of job

responsibilities” and must cause “a materially adverse change in

the terms and conditions of employment.” Schultz v. Congregation

Shearith Israel of City of N.Y., 867 F.3d 298, 304 (2d Cir. 2017)

(citation omitted). “Examples of such a change include 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

11 Defendant does not dispute that Plaintiff’s termination constitutes an adverse

action. (See ECF No. 51, Def. Mot. at 14 n.2.)

12 As set forth below, the Court finds that unsatisfactory performance

evaluations, placement on AWOL status, and denial of training do not constitute

adverse employment actions and, therefore, Plaintiff has failed to establish a

prima facie claim of discrimination as to these claims. Nevertheless, even

assuming arguendo these actions could be considered adverse employment actions,

Plaintiff has “abandoned these claims by failing to respond to Defendant’s

argument as to the third element of the prima facie case.” Townsend v. First

Student, No. 18-cv-1684 (VLB), 2021 WL 4798825, at *8 (D. Conn. Oct. 14, 2021),

aff’d, 2023 WL 1807719 (2d Cir. Feb. 8, 2023).

indices . . . unique to a particular situation.” E.E.O.C. v.

Bloomberg L.P., 967 F. Supp. 2d 816, 843 (S.D.N.Y. 2013) (quoting

Sanders v. N.Y.C. Human Resources Admin., 361 F.3d 749, 755 (2d

Cir. 2004)).

First, it is well settled in this Circuit that absent any

effect on Plaintiff’s compensation, benefits, or title, a negative

review or placement on an employment improvement plan is

insufficient to constitute an adverse employment action. See Brown

v. Am. Golf Corp., 99 F. App’x 341, 343 (2d Cir. 2004) (Summary

Order); Kunik v. N.Y. City Dep’t of Ed., 842 F. App’x 668, 672 (2d

Cir. 2021) (“An ‘unsatisfactory’ performance review is not an

adverse employment action where it does not affect a person's

‘compensation, benefits, or job title.’”) (quoting Fairbrother v.

Morrison, 412 F.3d 39, 56-57 (2d Cir. 2005)). Moreover, even

where, as here, an unsatisfactory review and improvement plan

states that failure to abide by the terms could lead to

termination, that fact “does not transform the [employment

improvement plan] into a materially adverse employment action.”

Gorman v. Covidien, LLC, 146 F. Supp. 3d 509, 525 (S.D.N.Y. 2015)

(citing McGrath v. Thomson Reuters, No. 10-cv-4944 (JSR) (JCF),

2012 WL 2119112, at *11 (S.D.N.Y. Apr. 30, 2012) (collecting

cases), report and recommendation adopted, No. 10 Civ. 4944 (JSR)

(JCF), 2012 WL 2122325 (S.D.N.Y. June 12, 2012), aff'd, 537 F.

App’x 1 (2d Cir. 2013) (summary order)).

Second, placing Plaintiff on AWOL status after he failed to

follow VA procedures for requesting sick leave does not constitute

an adverse action because Plaintiff’s AWOL status “was the direct

result of [Plaintiff’s] failure to provide [medical]

documentation” in support of his request for leave. Pierre v.

Napolitano, 958 F. Supp. 2d 461, 479 (S.D.N.Y. 2013). Indeed,

courts in this district have repeatedly held that “[r]equiring an

employee to provide medical documentation is not a materially

adverse action.” Gentile v. Potter, 509 F. Supp. 2d 221, 240–41

(E.D.N.Y. 2007). Accordingly, this Court finds that Plaintiff’s

AWOL status did not constitute a materially adverse action. See

Nicastro v. Runyon, 60 F. Supp. 2d 181, 186 (S.D.N.Y. 1999)

(“[M]any of the actions complained of by plaintiff, such as

scrutiny from his supervisors that he deemed excessive, requiring

documentation for sick leave, scrutiny of his wife's sick leave,

the unexplained absence of certain documents that he thinks should

be in his employment file, or threatening to investigate medical

fraud, do not constitute ‘adverse employment actions.’”).

Third, and finally, the alleged denial of training does not

constitute an adverse employment action because the training at

issue was not a prerequisite for Plaintiff’s employment and

Plaintiff did not suffer any adverse consequences for not

completing the training he requested. See Trachtenberg v. Dep’t

of Educ. of City of N.Y., 937 F. Supp. 2d 460, 468 (S.D.N.Y.

2013) (“[Plaintiff] has not alleged any negative consequences

resulting from the alleged denial of professional training, and

therefore any such denial does not rise to the level of an adverse

employment action.”).

Plaintiff received the only necessary training—COR Training—

within a month of starting his job and was designated for work as

a COR immediately thereafter. (Def. 56.1 Statement ¶¶ 112-13.)

Plaintiff also received approval to attend each training he

requested that was scheduled and available, but failed to attend

due to his own failure to take necessary actions. For example,

Plaintiff did not submit a travel authorization to attend the

scheduled Life Safety Code Training, Plaintiff was nominated for

the next available OSHA-30 training, but none were available to

any employee at the time of Plaintiff’s request, and Plaintiff

received permission to use his annual leave to attend the New

Jersey electrical license seminar, but was informed that the VA

could not pay for it because it was not necessary to Plaintiff’s

job responsibilities. (Def. 56.1 Statement ¶¶ 118, 120, 125.)

Ultimately, Plaintiff has failed to demonstrate any “material

harm from the [alleged] denial [of training], such as a failure to

promote or a loss of career advancement opportunities.”

Trachtenberg, 937 F. Supp. 2d at 468 (internal quotation marks and

citation omitted). Thus, “any failure by Defendants to provide

Plaintiff with training does not rise to the level of an adverse

employment action.” Sekyere v. City of New YOrk, No. 05–cv–7192

(BSJ) (DCF), 2009 WL 773311, at *4 (S.D.N.Y. Mar. 18, 2009).

Accordingly, based on the undisputed facts, the Court finds

that “viewed both individually and cumulatively” Plaintiff’s

unsatisfactory performance evaluations and placement on absent

without leave (“AWOL”) status (Claim Six), as well as the alleged

denial of training (Claim One) “do not amount to adverse employment

actions sufficient to establish a prima facie case of

discrimination to form the basis of a claim under Title VII” or

Section 1981. Sekyere, 2009 WL 773311, at *6. Accordingly,

Defendant’s motion for summary judgment as to Claim One is GRANTED

in its entirety and Defendant’s motion for summary judgment as to

Claim Six is GRANTED as to Plaintiff’s unsatisfactory performance

evaluations and placement on absent without leave (“AWOL”) status.

2. Plaintiff has Abandoned his Final Discrimination

Claim Arising out of his Termination

Turning to Plaintiff’s final claim of discrimination arising

out of his termination from his probationary position (Claim Six),

the Court finds that Plaintiff abandoned this claim by failing to

make any arguments in opposition to Defendant’s motion. “Where,

as here, a counseled non-moving party submits ‘a partial response

arguing that summary judgment should be denied as to some claims

while not mentioning others,’ that response ‘may be deemed

an abandonment of the unmentioned claims.’” Camarda v. Selover,

673 F. App’x 26, 30 (2d Cir. 2016) (quoting Jackson v. Fed.

Express, 766 F.3d 189, 195 (2d Cir. 2014)). “Even ‘[w]here

abandonment by a counseled party is not explicit,’ a court may

infer abandonment ‘from the papers and circumstances viewed as a

whole.’” Id. (quoting Jackson, 755 F.3d at 196).

Although Plaintiff responded to each of Defendant’s proposed

undisputed facts, Plaintiff argues only that summary judgment

should be denied as to his retaliation and hostile work environment

claims, but not his discrimination claim based on his termination.

(See ECF No. 59, Pl. Opp. at 23 (“Based on the foregoing, plaintiff

respectfully requests that the Court deny the defendant’s motion

for summary judgment seeking to dismiss his claims of retaliation

and hostile work environment.”)); see Jackson, 766 F.3d at 195

(“[A] partial response arguing that summary judgment should be

denied as to some claims while not mentioning others may be deemed

an abandonment of the unmentioned claims.”).

Moreover, Plaintiff’s only argument in support of his

discrimination claims is that he was qualified for the role of

General Engineer as a GS level 12 employee. (See ECF No. 59, Pl.

Opp. at 4-6.) Plaintiff fails to respond to any of Defendant’s

remaining arguments that the VA had legitimate, non-discriminatory

reasons for Plaintiff’s termination and that Plaintiff did not

demonstrate with admissible evidence any pretext that Defendant’s

reasons for Plaintiff’s termination were based in whole or in part

on discrimination. (See ECF No. 51, Def. Mot. at 19-25.)

Plaintiff does, however, provide a fulsome opposition to

Defendant’s motion for summary judgment as to his retaliation and

hostile work environment claims, thereby supporting an inference

that “abandonment [of his discrimination claims] was intended.”

Jackson, 766 F.3d at 196 (“Generally . . . a partial response

reflects a decision by a party’s attorney to pursue some claims or

defenses and to abandon others.”).

Accordingly, the Court finds that Plaintiff has abandoned his

remaining discrimination claims and Defendant’s motion for summary

judgment as to Plaintiff’s discrimination claim arising out of his

termination (Claim Six) is GRANTED. See Kovaco v. Rockbestos–

Surprenant Cable Corp., 834 F.3d 128, 144 (2d Cir. 2016) (affirming

district court’s finding of abandonment where defendant moved for

summary judgment on all claims and plaintiff opposed the motion

with respect to all but one variety of claim).

III. Plaintiff’s Retaliation Claims (Claims Three, Four, and Five)

Plaintiff alleges three causes of actions based on

retaliation. Plaintiff’s Third Cause of Action alleges that

Plaintiff was “retaliated against when he was denied necessary

training because he complained about what he believed to be

discrimination” in violation of Section 1981 and Title VII. (Am.

Compl. ¶ 58.) Plaintiff’s Fourth Cause of Action alleges that

Plaintiff was “retaliated against when he was given an

unsatisfactory evaluation in August 2019 because he complained

about what he believed to be discrimination” in violation of

Section 1981 and Title VII. (Am. Compl. ¶ 60.) Plaintiff’s Fifth

Cause of Action alleges that Plaintiff was “retaliated against

when he was declared AWOL and/or terminated in August 2019 because

he complained about what he believed to be discrimination” in

violation of Section 1981 and Title VII. (Am. Compl. ¶ 62.)

A. Legal Standard

As with Plaintiff’s discrimination claims, “[a]ll of

[Plaintiff’s] retaliation claims [under Section 1981] are analyzed

pursuant to Title VII principles.” Hicks v. Baines, 593 F.3d 159,

164 (2d Cir. 2010) (citing Patterson v. County of Oneida, 375 F.3d

206, 225 (2d Cir. 2004) (“Most of the core substantive standards

that apply to claims of discriminatory conduct in violation of

Title VII are also applicable to claims of discrimination in

employment in violation of § 1981 or the Equal Protection

Clause.”)). Title VII’s anti-retaliation provision makes it

unlawful “for an employer to discriminate against any . . .

employee[ ] or applicant[ ] . . . because [that individual] opposed

any practice” made unlawful by Title VII or “made a charge,

testified, assisted, or participated in” a Title VII investigation

or proceeding. 42 U.S.C. § 2000e–3(a). “This anti-retaliation

provision is intended to further the goals of the anti-

discrimination provision ‘by preventing an employer from

interfering (through retaliation) with an employee's efforts to

secure or advance enforcement of [Title VII's] basic guarantees.’”

Hicks, 593 F.3d at 164 (quoting Burlington N. & Santa Fe Ry. Co.

v. White, 548 U.S. 53, 63 (2006)).

These claims are also assessed under the “burden-shifting

framework laid out in McDonnell Douglas.” Summa v. Hofstra

Univ., 708 F.3d 115, 125 (2d Cir. 2013); McDonnell Douglas, 411

U.S. at 802-05. First, Plaintiff must establish a prima facie case

of retaliation by demonstrating: “(1) [he] engaged in protected

activity; (2) the employer was aware of this activity; (3) the

employee suffered a materially adverse employment action; and (4)

there was a causal connection between the alleged adverse action

and the protected activity.” Kelly v. Howard I. Shapiro & Assocs.

Consulting Eng'rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (per

curiam) (quoting Lore v. City of Syracuse, 670 F.3d 127, 157 (2d

Cir. 2012)). Here again Plaintiff’s burden is “de minimis” and

“the court's role in evaluating a summary judgment request is to

determine only whether proffered admissible evidence would be

sufficient to permit a rational finder of fact to infer a

retaliatory motive.” Jute v. Hamilton Sundstrand Corp., 420 F.3d

166, 173 (2d Cir. 2005) (internal quotation marks omitted).

Nevertheless, “[i]t is axiomatic that, to be retaliatory, the

adverse employment action must occur after the plaintiff complains

of discriminat[ion].” Lawson v. City of New York, 595 F. App’x

89, 90 (2d Cir. 2015) (emphasis added).

Should Plaintiff satisfy this initial burden, “a presumption

of retaliation arises” and the Defendant must then “articulate a

legitimate, non-retaliatory reason for the adverse employment

action.” Jute, 420 F.3d at 173. If Defendant satisfies this

burden, “the presumption of retaliation dissipates, and the

plaintiff must show that, but for the protected activity, [he]

would not have been terminated.” BowenHooks v. City of New York,

13 F. Supp. 3d 179, 221 (E.D.N.Y. 2014) (quoting Univ. of Tx. S.W.

Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013) (emphasis added)

(holding that a plaintiff “must establish that his or her protected

activity was a but-for cause of the alleged adverse action by the

employer”)). This “requires proof that the unlawful retaliation

would not have occurred in the absence of the alleged wrong action

or actions of the employer.” Id. at 231 (citing Nassar, 570 U.S.

at 360).

B. Application

1. Plaintiff’s claims of retaliation based on failure

to train, negative performance reviews, and

termination.

Here, Plaintiff cannot establish a prima facie case of

retaliation based on failure to train, negative performance

reviews, and termination because he cannot demonstrate a “causal

connection between the protected activity and the adverse

employment action.” Kwan v. Andalex Group LLC, 737 F.3d 834, 844

(2d Cir. 2013). Moreover, these alleged adverse actions occurred

before he engaged in protected activity. As noted above, “[i]t is

axiomatic that, to be retaliatory, the adverse employment action

must occur after the plaintiff complains of discriminat[ion].”

Lawson, 595 F. App’x at 90 (emphasis added).

Plaintiff first engaged in protected activity on July 19,

2019 when he emailed an EEO Specialist in the local VA NYHHS Office

and wrote, “I work in the Engineering building and have endure[d]

hostile work environment, discrimination, and bullying. I am

attach[ing] a performance review which is bad and unacceptable. I

want to file a complaint and open up an investigation” (the “July

19 Email”)13 (Def. 56.1 Statement ¶ 134; ECF No. 53-17, Def. Ex.

34 at 2.) Plaintiff asserts that he was denied training, received

negative performance reviews, marked AWOL, and terminated in

retaliation for engaging in this protected activity.

It is undisputed, though, that each of Plaintiff’s requests

for training occurred between March and May 2019, before the July

13 Plaintiff asserts that he also engaged in protected activity on May 26, 2019

when he emailed Mr. Fares and Mr. Civello raising concerns about Plaintiff’s

relationship with Mr. Ha, and again on July 8, 2019 when he emailed an EEO

Specialist in the local VA NYHHS Office and stated that he was “not trying to

file a complaint,” but had “questions about workplace harassment/bullying” that

he would like to discuss. (ECF No. 59, Pl. Opp. at 7; ECF No. 63-1, Pl. Ex. 5

at 2-3 (Pl. email to Mr. Fares and Mr. Civello dated May 26, 2019); Def. 56.1

Statement ¶¶ 129-30; ECF No. 53-17, Def. Ex. 17 at 4 (Pl. email to EEO Specialist

dated July 8, 2019).) Neither of these emails make any reference to racial or

national origin discrimination, retaliation, or a hostile work environment and,

as a result, they do not constitute protected activity as they “cannot

reasonably be construed as an implicit complaint about unlawful conduct.”

Marseille v. Mount Sinai Hosp., No. 21-2140, 2022 WL 14700981, at *2 (2d Cir.

2022) (Summary Order).

19, 2019 email. (Def. 56.1 Statement ¶¶ 117, 118, 120, 123, 125.)

Moreover, Plaintiff’s first progress review occurred on May 3,

2019. (Def. 56.1 Statement ¶ 126; ECF No. 53-16, Def. Ex. 16 at

2.) During this review, Plaintiff was advised that his performance

was “adversely impacting” VA operations and his supervisors had

observed, among other things, a “lack of understanding of agency

goals and vision”; a “lack of job knowledge”; an inability to adapt

to a teamwork environment; “unprofessional behaviors”; and

tardiness. (Id.) Plaintiff’s next progress review occurred on

July 19, 2019, during which Plaintiff was advised that his

performance continued to be unsatisfactory for the same reasons

stated during his May 19, 2019 Progress Review, except for

tardiness. (ECF No. 53-5, Def. Ex. 5 at 2.) The same day, on

July 19, 2019, Mr. Fares submitted a request for Plaintiff’s

termination to Human Resources, citing unsatisfactory performance.

(Def. 56.1 Statement ¶ 133; ECF No. 53-35, Def. Ex. 35 at 2.)

Plaintiff’s July 19 Email to the VA’s EEO Specialist plainly

occurred after Plaintiff’s performance review as it both

references and attaches the performance review letter. (Def. 56.1

Statement ¶ 134; ECF No. 53-34, Def. Ex. 34 at 2.) Moreover,

although Plaintiff did not receive a termination letter until

August 13, 2019, his termination was set in motion based on his

negative performance review on July 19, 2019 and “it is well-

settled that an adverse employment action cannot serve as the basis

for a retaliation claim [where, as here,] the action was set in

motion before a plaintiff engaged in protected activity.”

Cayemittes v. City of N.Y. Dep’t of Hous. Pres. & Dev., 974 F.

Supp. 2d 240, 262 (S.D.N.Y. 2013) (collecting cases).

Accordingly, Plaintiff cannot establish a causal nexus to

support his claims for retaliation based on failure to train,

negative performance reviews, and termination, and summary

judgment is granted in favor of Defendant on this aspect of

Plaintiff’s retaliation claim. See Slattery v. Swiss Reins. Am.

Corp., 248 F.3d 87, 95 (2d Cir. 2001) (Where, as here, “timing is

the only basis for a claim of retaliation, and gradual adverse job

actions began well before the plaintiff had ever engaged in any

protected activity, an inference of retaliation does not arise.”).

2. Plaintiff’s claims of retaliation based on his AWOL

status

Although Plaintiff was marked AWOL for insubordination,

failure to carry out supervisor instructions, and violating agency

time and attendance procedure on July 29, 2019, after he engaged

in protected activity, Plaintiff “has not identified any evidence

from which it may be reasonably inferred that his being charged

with AWOL . . . on the dates in question constitutes a materially

adverse action for purposes of his retaliation claim.” Johnson v.

Lew, No. 13-cv-1072 (GTS) (CFH), 2017 WL 3822047, at *14 (N.D.N.Y.

Aug. 30, 2017) (citing Hicks v. Baines, 593 F.3d 159, 165 (2d Cir.

2010) (“Actions are materially adverse if they are harmful to the

point that they could well dissuade a reasonable worker from making

or supporting a charge of discrimination.”)).

Mr. Fares’ request to terminate Plaintiff on July 19, 2019

listed unsatisfactory performance and unprofessional conduct as

the reasons for the recommendation. (ECF No. 53-35, Def. Ex. 35

at 2.) Moreover, Plaintiff’s Termination Letter dated August 13,

2019 stated that he was terminated at Mr. Fares’ recommendation

due to unsatisfactory performance, not for attendance or being

marked AWOL. (ECF No. 53-4, Def. Ex. 4 at 2.) Thus, “the record

does not support the conclusion that Plaintiff was disciplined or

that he was terminated, was demoted, or suffered any other

employment-related consequences as a result of being charged with

AWOL on the dates at issue (or, for that matter, on any dates) .

. . [and] being charged with AWOL would not have dissuaded a

reasonable worker from making or supporting a charge of

discrimination.” Johnson, 2017 WL 3822047 at *14.

Accordingly, for the foregoing reasons, Defendant’s motion

for summary judgment as to Plaintiff’s retaliation claims based on

Plaintiff’s AWOL status is GRANTED.

IV. Plaintiff’s Hostile Work Environment Claim (Claim Seven)

Plaintiff’s Seventh, and final, Cause of Action alleges that

he was subjected to a hostile work environment based on his race

and national origin and “in retaliation for complaining about what

he believed to be discriminatory terms and conditions of

employment” in violation of Section 1981 and Title VII. (Am.

Compl. ¶ 66.)

A. Legal Standard

Hostile work environment claims under Title VII and Section

1981 are evaluated under the same substantive standards. Rivera

v. Rochester Genesee Reg. Transp. Auth., 743 F.3d 11, 20 n.4 (2d

Cir. 2014). To establish a claim of hostile work environment, a

plaintiff must establish (1) “that the workplace was ‘permeated

with discriminatory intimidation, ridicule and insult . . . that

is sufficiently severe or pervasive to alter the conditions of his

work environment’” and (2) “that a specific basis exists for

imputing the conduct that created the hostile environment to the

employer.” Dayes v. Pace Univ., 2 F. App’x 204, 207 (2d Cir. 2001)

(quoting Howley v. Town of Stratford, 217 F.3d 141, 153-54 (2d

Cir. 2000)) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21

(1993)).

The first element of a hostile work environment claim

requires allegations that demonstrate that the environment was

both objectively and subjectively hostile and

abusive. See Gregory, 243 F.3d at 691–692. “It is axiomatic that

the plaintiff also must show that the hostile conduct occurred

because of a protected characteristic.” Tolbert v. Smith, 790

F.3d 427, 439 (2d Cir. 2015) (citing Alfano v. Costello, 294 F.3d

365, 374 (2d Cir. 2002)). Moreover, the conduct in question “must

be severe or pervasive enough to create an environment that ‘would

reasonably be perceived, and is perceived, as hostile or abusive.’”

Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (quoting

Harris, 510 U.S. at 22).

To determine whether a work environment is sufficiently

hostile, “courts consider the totality of the circumstances,

including such factors as ‘(1) the frequency of the discriminatory

conduct; (2) its severity; (3) whether the conduct was physically

threatening or humiliating, or a mere offensive utterance; (4)

whether the conduct unreasonably interfered with plaintiff's work;

and (5) what psychological harm, if any, resulted.’” Lumhoo v.

Home Depot USA, Inc., 229 F. Supp. 2d 121, 152 (E.D.N.Y.

2002) (citing Richardson v. New York State Dep't of Correctional

Serv., 180 F.3d 426, 437 (2d Cir. 1999)).

When evaluating the “quantity, frequency, and severity” of

the incidents, the court must look at the incidents “cumulatively

in order to obtain a realistic view of the work

environment.” Schwapp, 118 F.3d at 111. “The incidents at issue

must be ‘more than episodic; they must be sufficiently continuous

and concerted in order to be deemed pervasive.’” Bacchus v. New

York City Dep't of Educ., 137 F. Supp. 3d 214, 240 (E.D.N.Y.

2015) (citing Das v. Consolidated School Dist. of New Britain, 369

F. Appx 186, 190 (2d Cir. 2010)).

B. Application

Though it is undisputed that Plaintiff subjectively viewed

his working environment as a hostile one, Plaintiff has cited no

legal authority that Plaintiff experienced an objectively hostile

work environment. Looking at the incidents Plaintiff cites to

“cumulatively,” it is clear that they are the kind of “offhand

comments and isolated incident[s]” that do not “amount to

discriminatory changes in the terms and conditions of employment.”

Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (quotation

marks and citation omitted). Accordingly, the court grants

Defendant summary judgment as to Plaintiff's hostile work

environment claim.

Plaintiff testified that Mr. Ha, who did not supervise

Plaintiff, told him about an experience Mr. Ha had in high school

being bullied by African Americans that affected Mr. Ha’s view of

African Americans. (ECF No. 57-4, Pl. Tr. at 23-24.) Plaintiff

also testified that Mr. Ha informed Plaintiff that he “didn’t like

the fact that [Plaintiff] was hired as a GS [level] 12 [employee]

because . . . [Plaintiff] should have [been] hired . . . as a GS

[level] 5 employee.” (ECF No. 57-4, Pl. Tr. at 25.) On May 26,

2019, Plaintiff sent an email to Mr. Fares and Mr. Civello

detailing his interactions with Mr. Ha, including Mr. Ha’s comment

that Plaintiff should have been hired as a GS level 5 employee,

Mr. Ha’s refusal to answer Plaintiff’s questions, the fact that

Mr. Ha discouraged Plaintiff from seeking training or following

certain instructions, such as adding Plaintiff’s signature to

emails, and Mr. Ha saying he does not give an “F” about Plaintiff

in the presence of Mr. Fares and Mr. Civello.14 (ECF No. 63-1,

Ofodile Ex. 5 at 3.)

These comments, considered in the context of the totality of

Plaintiff’s employment, are not so “severe or pervasive . . . to

create an environment that ‘would reasonably be perceived, and is

perceived, as hostile or abusive.’” Schwapp, 118 F.3d at 110

(quoting Harris, 510 U.S. at 22). For example, although Mr. Ha,

who did not supervise Plaintiff, allegedly refused to answer

Plaintiff’s questions, during this time another General Engineer,

Mr. Vargas, acted as a mentor to Plaintiff, answering Plaintiff’s

14 Although Plaintiff does not address these claims in his Opposition Brief,

Plaintiff previously raised denial of training and poor performance reviews as

evidence of a hostile work environment and Defendant addresses these arguments

in their motion for summary judgment. (See ECF No. 51, Def. Mot. at 29-32.)

First, it is well settled in the Second Circuit that performance management and

negative reviews are not evidence of a hostile work environment. See Littlejohn

v. City of New York, 795 F.3d 297, 321 (2d Cir. 2015) (finding evidence that a

supervisor “wrongfully reprimanded” Plaintiff, among other things, was not

sufficient to establish a finding of hostile work environment). Second,

Plaintiff’s claims premised on a denial of training are, as set forth above,

untimely, and the undisputed facts demonstrate that Plaintiff did not submit

the necessary documentation to receive a travel stipend to attend the Life

Safety Code Training, the OSHA-30 training Plaintiff requested was not available

to any employee at the time of Plaintiff’s request, and Plaintiff received

permission to use his paid time off to attend the New Jersey electrical license

seminar, but the VA could not pay for it because it was not necessary to his

job responsibilities. (Def. 56.1 Statement ¶¶ 118, 120, 125.) Accordingly,

even these incidents, taken together with Mr. Ha’s comments, do not demonstrate

a workplace “permeated with discriminatory intimidation, ridicule, and insult

that is sufficiently severe or pervasive to alter the conditions of the victim's

employment and create an abusive working environment.” Wiercinski v. Mangia

57, Inc., 787 F.3d 106, 113 (2d Cir. 2015) (citing Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21 (1993)).

questions, assisting Plaintiff with his day-to-day

responsibilities, and showing Plaintiff how to complete tasks.

(Def. 56.1 Statement ¶ 99.) Moreover, Mr. Vargas, who also

identifies as African American, provided sworn testimony during

Plaintiff’s EEO proceeding that Mr. Vargas did not perceive “the

office [to be] a hostile work environment to work in,” noting that

“if there was racial discrimination against [African Americans] it

would be towards all of us not just one person.” (Def. 56.1

Statement ¶ 105.)

Considering the totality of these circumstances, Plaintiff’s

“allegations could not support a finding of hostile work

environment that is so severe or pervasive as to have altered the

conditions of [Plaintiff’s] employment.” Littlejohn v. City of

New York, 795 F.3d 297, 321 (2d Cir. 2015) (citing Fleming v.

MaxMara USA, Inc., 371 F. App’x 115, 119 (2d Cir. 2010) (concluding

that no hostile work environment existed even though “defendants

wrongly excluded [the plaintiff] from meetings, excessively

criticized her work, refused to answer work-related questions,

arbitrarily imposed duties outside of her responsibilities, threw

books, and sent rude emails to her”); Davis–Molinia v. Port Auth.

of N.Y. & N.J., No. 08-cv-7586 (GBD), 2011 WL 4000997, at *11

(S.D.N.Y., Aug. 19, 2011) (finding that “diminished [job]

responsibilities,” “exclu[sion] from staff meetings,” deliberate

“avoid[ance],” “yell[ing] and talk[ing] down to,” and an increased

workload of menial tasks, among other factors, was not enough to

show that defendants' conduct was sufficiently severe or

pervasive), aff'd, 488 F. App’x 530 (2d Cir. 2012)). Moreover,

Mr. Ha was “not [P]laintiff’s supervisor, and there is no evidence

that [he] had the ability to affect the terms of [P]laintiff’s

employment.” Perard v. Jamaica Hosp. Med. Center, No. 18-cv-6661

(KAM)(RER), 2020 WL 5633153, at *16 (E.D.N.Y. Sept. 20, 2020).

Having considered the evidence before the court in the light

most favorable to the non-moving party, and based on the totality

of the circumstances, the Court finds that Plaintiff has not

demonstrated a sufficiently hostile and pervasive environment.

Accordingly, Defendant’s motion for summary judgment on

Plaintiff's hostile work environment claim is GRANTED.

CONCLUSION

For the foregoing reasons, Defendant’s motion for summary

judgment as to all of Plaintiff’s claims is GRANTED. Plaintiff’s

claims are dismissed with prejudice. The Clerk of Court is

respectfully directed to enter judgment in favor of Defendant and

close this case.

So ordered.

Dated: September 11, 2025

Brooklyn, New York _______________________________

Kiyo A. Matsumoto

United States District Judge

Eastern District of New York