Petition for Writ of Certiorari — Gerard Nguedi, Petitioner v. Federal Reserve Bank of New York

19-907

Nguedi v. Federal Reserve Bank ofN.Y.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE

(WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING TO A

SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT

REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit,

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the

City of New York, on the 5th day of May, two thousand twenty.

i

PRESENT: GUIDO CALABRESI,

RICHARD C. WESLEY,

RICHARD J. SULLIVAN,

Circuit Judges.

GERARD NGUEDI,

Plaintiff-Appellant,

No. 19-907-cv

v.

FEDERAL RESERVE BANK OF NEW YORK,

Defendant-Appellee.

FOR PLAINTIFF-APPELLANT:

Gerard Nguedi, pro se, Woodbridge,

VA.

FOR DEFENDANT-APPELLEE:

Michael M. Brennan, Michele

Kalstein, Federal Reserve Bank of

New York, New York, NY.

;

Appeal from a judgment of the United States District Court for the Southern

District of New York (Gregory H. Woods, /.).

UPON

DUE

CONSIDERATION,

IT

IS

HEREBY

ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

Plaintiff-Appellant Gerard Nguedi, pro se, sued the Federal Reserve Bank of

New York (the "Fed") for discriminating against him based on his race by

terminating him from his job in violation of Title VII of the Civil Rights Act, the

■s:

New York State Human Rights Law ("NYSHRL"), and the New York City Human

Rights Law ("NYCHRL"), and by subjecting him to a hostile work environment in

violation of Title YE and the NYCHRL. Nguedi was terminated after he brought

an illegal weapon - a taser - into the Fed. The district court (Woods, J.) dismissed

Nguedi's Title Vn hostile work environment claim and all claims based on conduct

by persons other than his supervisor. The district court subsequently granted

summary judgment on Nguedi's remaining claims: discriminatory termination

under Title VII, the NYSHRL, and the NYCHRL, and hostile work environment

2

under the NYCHRL. Nguedi appeals, contending that the district court erred in

granting summary judgment to the Fed. We assume the parties' familiarity with

the underlying facts, the procedural history of the case, and the issues on appeal.

"We review [the] district court's grant of summary judgment de novo,"

Garcia v. Hartford Police Dep't, 706 F.3d 120,126 (2d Cir. 2013) (quoting Lombard v.

Booz-Allen & Hamilton, Inc., 280 F.3d 209, 214 (2d Cir. 2002)), "resolv[ing] all

ambiguities and draw[ing] all inferences against the moving party," id. at 127.

"Summary judgment is proper only when, construing the evidence in the light

most favorable to the non-movant, 'there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law."' Doninger v.

Niehoff, 642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). A party

cannot defeat a motion for summary judgment with mere speculation and

conclusory assertions. See Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d

Cir. 2001) (explaining that a nonmoving party "may not rely on conclusory

allegations or unsubstantiated speculation" to survive summary judgment

(internal quotation marks omitted)).

Upon review of the record below, we conclude that the district court did not

err in granting summary judgment because there was no genuine dispute of

3

whether a plaintiff is treated "less well" because of a discriminatory intent. See id.

at 110 (quoting Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27,39 (1st Dep't 2009)).

We also opined that the "totality of the circumstances" should be considered in

evaluating the plaintiffs claims and the defendant's affirmative defense, and that

a single incident could be actionable. Id. at 111 (quoting Hernandez v. Kaisman, 957

N.Y.S.2d 53, 59 (1st Dep't 2012)). Finally, we explained that while it was unclear

whether the burden shifting framework that we applied in federal and state

discrimination claims had been modified for NYCHRL claims, "[t]he employer

[could] present evidence of its legitimate, non-discriminatory motives to show the

conduct was not caused by discrimination, but it is entitled to summary judgment

on this basis only if the record establishes as a matter of law that 'discrimination

play[ed] no role' in its actions." Id. at 110 n.8 (quoting Williams, 872 N.Y.S.2d at

38). More recently, in Ya-Chen Chen v. City University of New York, 805 F.3d 59, 7576 (2d Cir. 2015), we held that, after a plaintiff established a prima facie case under

the NYCHRL, the defendant could "offer legitimate reasons for its actions." "If

the defendant satisfie[d] that burden, summary judgment [was] appropriate if no

reasonable jury could conclude either that the defendant's 'reasons were

pretextual' or that the defendant's stated reasons were not its sole basis for taking

5

action, and. that its conduct was based at least 'in part on discrimination/" Id. at

76 (quoting Melman v. Montefiore Med. Ctr., 946 N.Y.S.2d 27,35,41 (1st Dep't 2012)).

Second, Nguedi raises three procedural arguments on appeal. Each claim

fails. He first contends that he presented numerous witnesses that the district

court ignored. However, Nguedi received notice, pursuant to Vital v. Interfaith

Medical Center, 168 F.3d 615, 620-21 (2d Cir. 1999), that his claims could be

dismissed without a trial if he did not respond to the Fed's summary judgment

motion by filing sworn affidavits and/or other documents, such as witness

statements, to counter the facts asserted by the Fed. Nguedi never offered any

c-

such evidence from his purported witnesses, and his speculation about what those

witnesses might have said was insufficient to defeat summary judgment. See

Fujitsu, 247 F.3d at 428.

Nguedi next maintains that the district court ignored his pro se status and

deprived him of a trial. However, the district court explicitly recognized his pro se

status and acknowledged its obligation to liberally construe his pleadings "to raise

the strongest arguments that they suggest." Suppl. App'x at 407 (quoting Corcoran

v. N.Y. Power Auth., 202 F.3d 530,536 (2d Cir. 1999)). Nevertheless, as noted above,

Nguedi's pro se status did not eliminate his obligation to support his claims with

6

material fact as to whether the Fed discriminated against Nguedi in violation of

Title VII, the NYSHRL, or the NYCHRL, or subjected him to a hostile work

environment under the NYCHRL. We affirm for substantially the same reasons

stated by the district court in its March 7,2019 Memorandum Opinion and Order.

Several points, however, warrant brief discussion.

First, the district court cited nonbinding caselaw for several propositions

under the NYCHRL: (1) that "[a] plaintiff may bring claims under the NYCHRL

for both discrimination and hostile work environment," Suppl. App'x at 412;

(2) that a court considers the totality of the circumstances, and even a single

incident may be actionable in the proper context; and (3) that a defendant may

come forward with "legitimate, non-discriminatory motives" to defeat a NYCHRL

discriminatory termination claim, id. at 413 (internal quotation marks omitted).

We considered all of these propositions in Mihalik v. Credit Agricole Cheuvreux

North Anierica, Inc., 715 F.3d 102,108-4.2 (2d Cir. 2013). In that case, we reviewed

both discriminatory treatment and hostile work environment claims under the

NYCHRL, explaining how the changes to the NYCHRL in 2005 required district

courts to both analyze such claims separately from federal and state law claims,

and to construe its provisions broadly in favor of a plaintiff - i.e., to analyze

4

some evidence to survive summary judgment.

His reliance on "conclusory

allegations" and "unsubstantiated speculation" could not suffice. See Fujitsu, 247

F.3d at 428 (internal quotation marks omitted).

Nguedi finally asserts that the district court failed to consider "the fact that

[the Fed] was caught lying to the court and misrepresenting facts and arguments

so many times they had to change lawyers at least 4 times." Nguedi's Br. at 8.

Again, Nguedi does not provide any factual support for this bald assertion.

Accordingly, we hold that the district court did not err in granting summary

judgment to the Fed.

We have considered Nguedi's remaining contentions and conclude that

they are without merit. For the foregoing reasons, the judgment of the district

court is AFFIRMED.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk of Court

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Case 1:16-cv-00636-GHW Document 110 Filed 03/07/19 Page 1 of 24

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

X

USDCSDNY

DOCUMENT

ELECTRONICALLY FILED

DOC #: ________________

DATE FILED: 3/7/2019

GERARD NGUEDI,

Plaintiff,

l:16-cv-636-GHW

MEMORANDUM OPINION

-against-

AND ORDER

THE FEDERAL RESERVE BANK OF NEW

YORK,

Defendant.

X

GREGORY H. WOODS, United States District JudgePlaintiff Gerard Nguedi, proceeding pro se, alleges that Defendant, the Federal Reserve Bank

of New York (the “NY Fed”) subjected him to a hostile work environment and terminated his

employment due to racial animus. Employing unsupported and anti-Semitic speculation,1 Plaintiff

claims that Defendant discriminated against him due to his race as part of their scheme to “own

freedom and enslave the American people with infinite debt.” PL’s Local Rule 56.1 Resp. (ECF No.

102) (“56.1”) ^1 26. The alleged scheme involved, inter alia, multiple job opportunities meant to

entice Plaintiff, an assassin in the guise of a deliveryman sent to Plaintiffs home, the personal

involvement of former New York City Police Commissioner William Bratton, and a workplace

environment in which undercover police officers constantly surrounded Plaintiff and Plaintiff was

poorly treated due to his race. According to Plaintiff, Defendant utilized the undisputed fact that

that on December 23, 2015, Plaintiff entered the NY Fed with an illegal weapon in his luggage as a

pretextual excuse to mask Defendant’s discriminatory motives for terminating his employment. On

that basis, Plaintiff brings claims for violations of Title VII, the New York State Human Rights Law

(“NYSHRL”), and the New York City Human Rights Law (“NYHCRL”) due to his allegedly

discriminatory termination and the allegedly hostile work environment fostered by Defendant.

Case l:16-cv-00636-GHW Document 110 Filed 03/07/19 Page 2 of 24

Before the Court is Defendant’s motion for summary judgment as to all of Plaintiffs

remaining claims. As articulated below, Plaintiff has failed to adduce any evidence in support of his

claims beyond his conclusory allegations and speculations, and, in any event, Plaintiffs decision to

bring an illegal weapon onto the premises constitutes a legitimate, non-pretextual reason for

Plaintiffs termination. Accordingly, Defendant’s motion for summary judgment is GRANTED and

this case is dismissed.

I.

BACKGROUND2

A. Facts

“Plaintiff is an African-American man from Cameroon” who, prior to his termination,

worked as a Project Manager in the Electronic Payments Project Management Office of the NY

Fed. P56.1 ^115; Nguedi v. Fed. Reserve Bank of New York, No. 16-cv-0636-GHW, 2017 WL 2557263,

at *3 (S.D.N.Y. June 12, 2017) (“Nguedi i”). Plaintiff was not hired directly by the NY Fed, rather

Defendant contracted for his services on an hourly basis through Source of Future Technology Inc.

(“SOFT”), a third-party staffing agency. 56.1 ^ 6. Plaintiff was paid on an hourly basis for work

performed—and was not compensated for “vacation/holidays.” Letter from SOFT to PL, (ECF 984) (the “Job Offer”). Defendant and SOFT describe employees working at the NY Fed in “long

term contract role[s],” email correspondence, May 29, 2015 (ECF No. 98-6) (“Job Description”),

but who are not employees of the NY Fed, as being “[c]ontingent [w]orker[s].” PL’s Work Order

(ECF No. 93-3) (the “Work Order”) at 2. Contingent workers, such as Plaintiff, do not have a

direct contractual relationship with Defendant. 56.1

9-10. Rather, when Defendant contracts for

the services of contingent workers with SOFT, it does so through the vehicle of work orders, which

are made pursuant to the March 23, 2015 Master Staffing Agreement between Defendant and SOFT

(the “Master Staffing Agreement”). Id; see, generally, Master Staffing Agreement (ECF. No. 93-4).

Under the terms of the Master Staffing Agreement, unless superseded by language in a particular

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Case l:16-cv-00636-GHW Document 110 Filed 03/07/19 Page 3 of 24

work order, Defendant has the right to terminate any work order, and the corresponding contingent

worker’s work assignment, “upon notice to [SOFT] given at any time, for any reason, or for no

reason.” Master Staffing Agreement

1.4 (terms of Master Staffing Agreement incorporated by

reference into subsequent work orders); 1.5 (conflicting terms in work orders given precedence over

terms in Master Staffing Agreement); 10.2 (termination provision).

1. Events Prior to August 5, 2015

In May 2015, Donna Crouch, a Vice President of the NY Fed, contacted Frankois

Alburquerque of the Contingent Workforce Office in the NY Fed’s Human Recourses Group and

requested his assistance in retaining the services of a contingent worker for a six-month assignment.

56.1 Tfl] 2-3; Decl. of Frankois Alburquerque, May 31, 2018 (ECF No. 93) (“FA Deck”)

Deck of Donna Crouch, May 31, 2018 (ECF No. 95) (“DC Deck”)

13-14;

5-7. Including Plaintiff,

eleven candidates for the job were considered. 56.1 ^[ 6. After interviewing Plaintiff telephonically

and in person, and discussing his candidacy with other NY Fed Employees who also interviewed

Plaintiff, Mrs. Crouch decided to retain Plaintiffs services. See 56.1 fflj 6-7. Plaintiff was well

qualified for the position, id. and requested that his hourly compensation be increased from the

original offer off $90 per hour, to $95 per hour. Id.

6, 8. Defendant agreed, ultimately paying

SOFT $125 per hour for Plaintiffs work; SOFT in turn compensated Plaintiff at the rate of $95 per

hour. Work Order (ECF No. 93-3); Offer Letter (ECF No. 98-4). In order to retain Plaintiffs

services, Defendant entered into the Work Order with SOFT dated August 28, 2015 which

incorporated the terms of the Master Staffing Agreement. Work Order. The Work Order included

an expected end date of December 29, 2015 for Plaintiffs work assignment. 56.1

12; Work Order.

Plaintiffs contract was with SOFT’S sister organization, not Defendant. See Job Offer (“This

position will be with our sister organization Softworks, through which SOFT’S hourly employees

work.”).

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Case l:16-cv-00636-GHW Document 110 Filed 03/07/19 Page 4 of 24

2. Plaintiffs Term of Employment: August 5, 2015-Deeember 23,

2015

On August 5, 2015 Plaintiff began providing services to the NY Fed as a Project Manager in

the Electronic Payments Project Management Office. 56.1 ^ 15. Plaintiff and two other workers

reported to Mrs. Crouch during the period of Plaintiffs employment. 56.1 TJ18. Neither of those

other two employees were Caucasian, and one, like Plaintiff, was also a contingent worker. 56.1

16-17. Early in Plaintiff s employment, Plaintiff participated in a training program which included

information on the NY Fed’s anti-discrimination and anti-harassment policies, and provided

references to the NY Fed’s Equal Employment Opportunity Office with contact information. 56.1

U19; see email from PL, Aug 11, 2015 (ECF No. 96-2) (demonstrating PI. took the “Ethics for

Contingent Workers and Rules of Conduct Certification Course”); printout of Pl.’s “Ethics for

Contingent Workers and Rules of Conduct Certification” (ECF No. 96-3) at 28-29. During his

work assignment, Plaintiff never filed a complaint with the EEO, nor is there any evidence that

Plaintiff complained of discrimination during his employment. 56.1

20; see Pl.’s Dep. (ECF. No.

96-1) at 98:4-99:24.3 All parties agree that Plaintiffs work was, at a minimum, satisfactory. 56.1

U 21. On September 16, 2015 Mrs. Crouch extended the duration of Plaintiffs work assignment to

January 29, 2016. 56.1 ^ 13; emails to Donna Crouch, Sept. 16-17, 2015 (ECF No. 95-1); FA Deck

1122.

3. Plaintiffs Termination on December 23, 2015

On the morning of December 23, 2015, Plaintiff arrived at the NY Fed with luggage because

he intended to travel to visit his sister that evening. 56.1 ffij 26-27; PL’s Dep. at 47:10-17. Inside his

luggage was a taser and a cannister of pepper spray. 56.1 ^ 26; PL’s Dep. 42-12-21 (“I had a Taser

and a thumb-size pepper spray that I wanted to give my little sister, and that was in my luggages.”)

The Federal Reserve Law Enforcement (“FRLE”) is a police force, independent of the New

York City Police Department (“NYPD”), which secures the NY Fed 56.1 ^ 24. The FRLE requires

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that “all non-employee visitors (including contingent workers)” submit their bags to an x-ray scan at

a security checkpoint before entering the premises. 56.1

25. Upon entering the building on

December 23, 2015, and before his bag was scanned, Plaintiff voluntarily informed the FRLE that

he had a taser and pepper spray in his luggage. 56.1

26.

In the State of New York, it is illegal for a private citizen to possess a taser. NY P.L.

§ 265.01 (Criminal Possession of a Weapon in the Fourth Degree); 56.1

26 (citing id).

Accordingly, the FRLE officers on duty' informed Plaintiff that the taser was illegal in the State, and

confiscated both it and the pepper spray. 56.1 TJ 27; Pl.’s Dep. 47:20-48:2 (“They say, well, in fact, its

not permitted in New York State, so we will have to confiscate it.”). Then, the FRLE officers

“summoned Delayne Hurley” the FRLE’s “Director of Uniform Operations, who had never before

interacted with either Mrs. Crouch or Plaintiff.” 56.1

(ECF No. 92) (“DH Deck”)

28; deck of Delayne Hurley, May 31, 2018

10. Pursuant to the FRLE’s practice of contacting law enforcement

when they believe a crime has been committed, the FRLE contacted the NYPD regarding Plaintiffs

actions. DH Deck

7. The NYPD subsequently arrived on the scene and arrested Plaintiff. 56.1

H30.

Mr. Hurley then contacted Mrs. Crouch, informed her of the events described above, and

further informed her that he considered Plaintiff to be “risk to the New York Fed going forward.”

DH Deck

14-15; 56.1

32, DC Deck ffl|23-24. Mr. Hurley’s assessment of Plaintiff as a risk was

based on three factors: 1) Plaintiffs possession of an illegal weapon; 2) his short term, indirect, and

contingent relationship with the NY Fed; and 3) Plaintiffs demeanor in his interactions with

Plaintiff on December 23, 2015. 56.1 ^ 33 (citing DH Deck 1J16). Mr. Hurley then recommended

that Plaintiffs work assignment be terminated. Id.

34; DH Deck

17; DC Deck ^ 24. Mrs.

Crouch, and her immediate superior Gail Aremndinger, discussed the issue, and “agreed to defer to

Mir. Hurley’s recommendation, given his knowledge and experience in in law enforcement.” 56.1

5

Case l:16-cv-00636-GHW Document 110 Filed 03/07/19 Page 6 of 24

H 36; DC. Decl. U 26; decl. of Gail Aremndinger, May 31, 2018 (ECF No. 94) (“GA Dec!.”) ffl[ 9-10.

After Mrs. Crouch communicated that information to Mr. Hurley, Mr. Hurley “called Mr.

Albuquerque and requested that he commence the off boarding process for Plaintiff.” Id.

Decl. Tf 18; FA Decl.

37; DH

24-25. As a result, the NY Fed’s Contingent Workforce Force Office

terminated the Work Order with SOFT, with the ultimate effect of terminating Plaintiffs work at

the NY Fed Id.-, FA Decl. f26.

The criminal charge against Plaintiff was dismissed on February 22, 2016.4 Pl.’s Opp., Ex.

H (ECF No. 98-8).

B. Plaintiffs Unsupported Factual Allegations5

Plaintiff has alleged numerous additional facts, which are without support in the record

beyond his own statements. The most colorful of those allegations include that Defendant is

affiliated with the Knights of the Klu Klux Clan, Pl.’s Opp. at 10; that “Defendant is a criminal

organization that targeted Plaintiff for assassination,” id. at 3, potentially because Plaintiff believes

himself to be “the second coming of Jesus Christ,” Pl.’s Dep. at 48:7-14; that Defendant continues

to target Defendant and is “using police services to harass Plaintiff in every areas [sic] of Plaintiffs

life, in different states/country,” Decl. of Gerard Nguedi, July 3, 2018 (ECF No. 99) (“Pl.’s Decl.”)

at 1, a scheme which included “multiple job opportunities” meant to entice Plaintiff into

Defendant’s web, PL’s Opp. at 7; and that, as part of Defendant’s scheme against him, Police

Commissioner William Bratton himself effected Plaintiffs December 23, 2015 arrest, PL’s Dep. at

141:4-143:19; PL’s Decl. at 14-15,—though Plaintiff contends that the “video surveillance footages

[sic] . . . were all edited to remove Mr. Bratton’s intervention.” 56.1 ^[ 28. Those allegations are

totally lack evidentiary support beyond Plaintiffs conclusory allegations and speculations.

The Court does not attempt to discuss each of Plaintiffs myriad unsupported factual

allegations. Suffice to say those allegations do not provide support for Plaintiffs claims of

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Case l:16-cv-00636-GHW Document 110 Filed 03/07/19 Page 7 of 24

discrimination here. The following allegations, however, bear on the Court’s analysis below, and are

accordingly discussed in greater depth.

1. Allegations Regarding Plaintiffs Employment Status

Plaintiff claims that he. was told by Mrs. Crouch and others that his contract would “turn

permanent,” and that he would not have accepted the position at the NY Fed if he had understood

it to be a contingent contract. PL’s Opp. at 6. The only relevant evidence Plaintiff cites for this

proposition is a job description which described his position as a “long term contract role.” Job

Offer. At most, that language is ambiguous. Plaintiff claims he understood it to mean a long-term

role, meaning a year or more—with the potential to become permanent employment. 56.1

4-6.

However, a more natural reading is that it is a contract role—as compared to a full-time role—which

is comparatively long term. Regardless, Plaintiff s understanding or misunderstanding of the nature

of his employment does not change the undisputed fact that he was employed by SOFT, not

Defendant, and was classified as a contingent worker. Work Order; see Master Staffing Agreement.

There is evidence that Plaintiff was confused by the nature of his role, email from PL, Dec. 2, 2015

(ECF No. 98-21) (“I was a little confused because I thought these were longer term contracts. I

probably didn’t pay attention.”), but there is no evidence that his role was anything other than as a

contingent worker.

2. Allegations Regarding Plaintiffs Work Identification Badge

Plaintiff alleges that Mrs. Crouch laughed at the photograph on his identification badge, a

photograph which Plaintiff found to be embarrassing, and further alleges that Mrs. Crouch would

not assist him in getting a new picture taken. See 56.1 ^ 46. Mrs. Crouch denies this event took

place. DC Deck

31. Despite mentioning in his deposition that other employees, such as one Bob

Gallo, witnessed portions of that interaction, Plaintiff has adduced no evidence beyond his

conclusory allegations and speculations to support his version of events. PL’s Dep. at 67:18-23.

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And even assuming, arguendo, that these events did occur, Plaintiff has adduced no evidence that

Mrs. Crouch’s alleged refusal to assist him was due to racial animus. See id. 68:6-71:4 (Q: Other

than your statements, are you aware of any evidence supporting these allegations? ... A. Any

evidence like video? You have all the videos. You edit them and hide the crucial stuff in it.

Remember? All the evidences, you have. Bring out that woman. Talk to her. That’s the

evidence.”) compare id. with DC Decl.

31 (“These events did not occur. Mr. Nguedi never asked me

to help him get his photograph retaken. In my 33 years at the New York Fed, no one reporting to

me has ever asked for assistance in getting their identification badge photograph retaken.”). Even in

Plaintiff s own account, Mrs. Crouch never made any facially discriminatory comments, nor could

Plaintiff identify any other person whom Mrs. Crouch helped with a similar request, much less a

relevant comparator. See PI.’s Dep. 69:9-71:4.

3. Allegations Regarding Mrs. Crouch’s Verbally Abusive Conduct

Plaintiff has alleged that “every day” he worked at the NY Fed, Mrs. Crouch yelled at him in

front of “everyone.” Pl.’s Dep. 71:13-72:11. Other than Plaintiff himself, no witness has provided

testimony which supports Plaintiffs allegations, and Mrs. Crouch denies they took place. DC Decl.

If 30. In one such contested event, Plaintiff alleges the Mrs. Crouch told him to “show less

leadership” in staff meetings. 56.1

45. Mrs. Crouch, again, denies this event took place. DC Decl.

1129.

Plaintiff has testified that he understood that alleged comment to mean that “as a black

person, you don’t. . . speakQ in a room full of white people with leadership.” PI. Dep. 76:7-77:8.

However, even in Plaintiffs own account, Mrs. Crouch did not say anything beyond asking him to

show less leadership—Plaintiff claims to have “understood what she want fed],” Pl.’s Dep. 76:4-12,

but he does not even allege Mrs. Crouch ever made any reference to race or national origin in any of

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her alleged comments, nor has he provided any evidence of context from which the Court could

imply a discriminatory animus behind Mrs. Crouch’s alleged statement. Id.; 56.1 ^ 45.

4.

Allegations Regarding Mr. Hurley’s Racial Animus

As a general matter, Plaintiff has accused essentially every actor in this fact pattern of racism,

without any evidence beyond his own conclusory allegations and speculations. As his indirect

allegations against Mr. Hurley bear on the analysis below, the Court takes up the issue here.

Plaintiff has alleged that he was “classified as a risk only because [he] is a black man.” 56.1

U 35. As he was classified as a risk by Mr. Hurley, the Court interprets that statement as an

allegation that Mr. Hurley classified Plaintiff as a risk due to racial animus on Mr. Hurley’s part.

There is no evidence supporting that assertion.

The uncontroverted evidence shows that Mr. Hurley classified Plaintiff as a risk due to 1) his

possession of an illegal weapon; 2) Plaintiffs short term, indirect, and contingent relationship with

the NY Fed; and 3) Plaintiffs demeanor in his interactions with Plaintiff on December 23, 2015.

56.1 T] 33 (citing DH Deck ^|16). The uncontroverted evidence also shows that, prior to their

interaction on December 23, 2015, Plaintiff and Mr. Hurley had never met or had any interaction

with each other. 56.1 ^ 28; DH Deck

10.

C. Procedural History

Plaintiff filed this case on January 27, 2016. Since that time, he has amended his complaint

five times. The Fourth Amended complaint was the subject of a motion to dismiss, which the Court

granted in full on June 11, 2017- Nguedi I, 2017 WL 2557263, at *8 (dismissing Pl.’s false'arrest claim

with prejudice). The Fifth Amended Complaint was the subject of another motion to dismiss,

which was granted in part on December 1, 2017. Nguedi v. Fed. Reserve Bank ofNew York, 16-0636GHW, 2017 WL 5991757, at *12 (S.D.N.Y. Dec. 1, 2017) (‘Nguedi IF). In its December 1, 2017

opinion, the Court dismissed with prejudice Plaintiffs “Title VII hostile work environment claim,

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NYCHRL claim premised on the cafeteria worker’s and ID clerk’s conduct, and claims against the

NYPD and Mr. Bratton.” Id. at *12. “Plaintiffs Title VII discrimination claim, NYSHRL

discrimination claim, and NYCHRL claim, to the extent the NYCHRL claim is based on [Mrs.]

Crouch’s conduct, survivefd].” id.

On June 1, 2018, Defendant moved for summary judgment on all remaining claims. Notice

of Mot. (ECF No. 89). Pro se Plaintiff was provided with notice of his obligations in opposing that

motion on the same date. Notice to Pro Se Litigant who Opposes a Mot. For Summary Judgment

(ECF No. 97). That motion was fully briefed by July 20, 2018, and is now before the Court.

II.

LEGAL STANDARD

Summary judgment is appropriate when “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“[Sjummary judgment is proper ‘if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.’” (quoting former Fed. R. Civ. P. 56(c))). A

genuine dispute exists where “the evidence is such that a reasonable jury could return a verdict for

the nonmoving party,” while a fact is material if it “might affect the outcome of the suit under the

governing law.” Anderson v. Liberty Lobby, Inc., All U.S. 242, 248 (1986). “Factual disputes that are

irrelevant or unnecessary will not be counted.” Id.

The movant bears the initial burden of demonstrating “the absence of a genuine issue of

material fact,” and, if satisfied, the burden then shifts to the non-movant to present “evidence

sufficient to satisfy every element of the claim.” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.

2008) (citing Celotex, All U.S. at 323). To defeat a motion for summary judgment, the non-movant

“must come forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita

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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting former Fed. R. Civ. P. 56(e)).

“The mere existence of a scintilla of evidence in support of the [non-movant’s] position will be

insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].”

Anderson, 477 U.S. at 252. Moreover, the non-movant “must do more than simply show that there is

some metaphysical doubt as to the material facts,” Matsushita, 475 U.S. at 586 (citations omitted),

and she “may not rely on conclusory allegations or unsubstantiated speculation,” Fujitsu Ltd. v. Fed.

Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (internal quotation marks and citation omitted).

In determining whether there exists a genuine dispute as to a material fact, 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.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012)

(internal quotation marks and citation omitted). The Court’s job is not to “weigh the evidence or

resolve issues of fact.” Lucente v. Inti Bus. Machs. Corp., 310 F.3d 243, 254 (2d Cir. 2002) (citation

omitted); see also Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996) (“In applying th[e]

[summary judgment] standard, the court should not weigh evidence or assess the credibility of

witnesses.”). “Assessments of credibility and choices between conflicting versions of the events are

matters for the jury, not for the court on summary judgment.” Jeffreys v. City ofNew York, 426 F.3d

549, 553 (2d Cir. 2005) (citation omitted).

In employment discrimination cases, where direct evidence of intentional discrimination is

rare, “affidavits and depositions must be carefully scrutinized for circumstantial proof’ of

discrimination. Turner v. NYU Hosps. Ctr., 784 F. Supp. 2d 266, 275 (S.D.N.Y. 2011) (citing Gallo v.

Prudential Residential Servs., Ltd. Pshp., 22 F.3d 1219, 1224 (2d Cir. 1994)), affd, 470 F. App’x 20 (2d

Cir. 2012). “However, even in such cases, a plaintiff must provide more than conclusory allegations

of discrimination to defeat a motion for summary judgment and show more than some metaphysical

doubt as to material facts.” Id. at 275-76 (internal quotations omitted) (citing Schwapp v. Town of

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Avon, 118 F. 3d 106 (2d Cir. 1997); Gorymski v. Jetblue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010));

Brown v. Johnson <& Johnson Consumer Products, Inc., 92-cv-7886-KTD, 1994 WL 361444, at *3 n.3

(S.D.N.Y. July 11, 1994) (“To assert that [defendant’s] witnesses may be lying, without any evidence

to contradict the witnesses’ testimony cannot defeat a motion for summary judgment.”) (citation

omitted).

Where, as here, the party opposing summary judgment is proceeding pro se, the Court must

construe that party’s submissions “liberally and interpret them to raise the strongest arguments that

they suggest.” Corcoran v. N.Y. Power Auth., 202 F.3d 530, 536 (2d Cir. 1999) (internal quotation

marks and citations omitted). Proceeding pro se, however, “does not. . . relieve [the opposing party]

from the usual requirements of summary judgment.” Fitzpatrick v. New York CornellHosp., No. 00cv-8594, 2003 WL 102853, at *5 (S.D.N.Y. Jan. 9, 2003).

III.

DISCUSSION

A. Title VII

Title VII makes it an “unlawful employment practice for an employer to fail or refuse to hire

or to discharge any individual, or otherwise to discriminate against any individual with respect to his

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. Plaintiff has alleged that he was

classified as a risk and then terminated due to his race, in violation of Title VII.

“The ultimate issue in any employment discrimination case is whether the plaintiff has met

his burden of proving that the adverse employment decision was motivated at least in part by an

impermissible reason—i.e., that there was discriminatory intent.” Sharpe v. MCI Commc’ns Sews., Inc.,

684 F. Supp. 2d 394, 401 (S.D.N.Y. 2010) (quotation marks deleted). A plaintiff may prove a

discrimination claim either through direct evidence of intent to discriminate or by indirectly showing

circumstances giving rise to an inference of discrimination. Vega v. Hempstead Union Free Sch. Dist.,

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801 F.3d 72, 87 (2d Cir. 2015). Where, as here, a Plaintiff alleging discrimination under Title VII

does not present direct evidence of discriminatory intent, a summary judgment motion is subject to

the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See

Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (applying McDonnell Douglas framework to

Tide VII summary judgment motion). Under that framework, Plaintiff bears the initial burden of

establishing a prima facie case of discrimination by demonstrating that: (1) he belonged to a protected

class; (2) he was qualified for the position; (3) he experienced an adverse employment action; and (4)

the adverse employment action took place under circumstances giving rise to an inference of

discrimination. Abrams v. Dep’tofPub. Safety, 764 F.3d 244, 251-52 (2d Cir. 2014). “A plaintiff may

raise such an inference by showing that the employer subjected him to disparate treatment, that is,

treated him less favorably than a similarly situated employee outside his protected group.” Graham v.

Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). “When considering whether a plaintiff has raised an

inference of discrimination by showing that she was subjected to disparate treatment, [the Second

Circuit has] said that the plaintiff must show she was similarly situated in all material respects to the

individuals with whom she seeks to compare herself.” Id. (quotation marks omitted). “What

constitutes ‘all material respects’ therefore varies somewhat from case to case and . . . must be

judged based on (1) whether the plaintiff and those he maintains were similarly situated were subject

to the same workplace standards and (2) whether the conduct for which the employer imposed

discipline was of comparable seriousness.” Id. at 40.

“Establishment of a prima facie case ‘in effect creates a presumption that the employer

unlawfully discriminated against the employee.’” Adeniji v. Admin, for Children Servs., NYC, 43 F.

Supp. 2d 407, 419 (S.D.N.Y. 1999) (quoting Fisher v. Vassar College, 114 F. 3d 1332, 1335 (2d Cir.

1997), affdsub nom. Adeniji v. Admin. For Children’s Sens., F.3d 430 (2d Cir. 1999); Texas Dep’t Cmty.

Affairs v. Burdine, 450 U.S. 248 (1981)). If the plaintiff meets that initial burden, the burden shifts to

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the employer to offer a legitimate, non-discriminatory reason for the adverse employment action.

Abrams, 764 F.3d at 251. If the employer offers such a reason, the presumption of discrimination

raised by theprimafacie case is rebutted, and the burden returns to the plaintiff to point to evidence

from which a reasonable jury could conclude that the employer’s stated reasons are merely a pretext

for unlawful discrimination. See Kovaco v. Kockbestos-Surprenant Cable Corp., 834 F.3d 128,136 (2d Cir.

2016).

1. Plaintiffs Title VII Claim of Discriminatory Termination

Even assuming, arguendo that Defendant, rather than SOFT, was Plaintiffs employer for the

purposes of Title VII, Plaintiff has not adduced evidence sufficient to establish a primafacia case of

discriminatory termination. There is no question that Plaintiff is a member of a protected class, was

qualified for his position, and suffered an adverse employment action when he was terminated.

Abrams, 764 F.3d at 251-52. However, Plaintiff has failed to adduce evidence sufficient to

demonstrate that his termination “took place under circumstances giving rise to an inference of

discrimination.”

Plaintiff has failed to identify a comparator who is “similarly situated” to himself, and was

treated better, which is fatal to this potential basis to establish his primafacia case. Graham, 230 F.3d

at 39; Pierre v. New York State Dep’t ofCorr. Seres., 5-cv-0275-RJS, 2009 WL 1583475, at *12 (S.D.N.Y.

June 1, 2009) (“A court can properly grant summary judgment [on a discrimination claim] where no

. reasonable jury could find the similarly situated prong met.”) (quoting Spiegler v. Israel Disc. Bank of

N.Y., l-cv-6364-WK, 2003 WL 21983018, at *2 (S.D.N.Y. Aug. 19, 2003). Assuming, arguendo, that

the standards governing discipline of employees who bring illegal weapons into the NY Fed are the

same for all contingent workers, in order to demonstrate a primafacie case, Plaintiff would need to

demonstrate that another contingent worker, who was outside Plaintiffs protected class, brought an

illegal weapon into the NY Fed or engaged in similarly serious misconduct, and suffered lesser

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consequence's than Plaintiff.

Mr. Hurley, the Director of Uniform Operations for the NY Fed, has declared that is

unaware of any other NY Fed personnel, contingent worker or otherwise, who brought an illegal

weapon into the bank. DH Deck

21; 56.1 ^[31. Indeed, the only evidence of anyone other than

Plaintiff bringing an illegal weapon into the NY Fed is of two job applicants who brought weapons

into the NY Fed. Supplemental Declaration of Delayne Hurley, July 19, 2018 (ECF No. 104) (“DH

Sup. Dec!.”) ffll 2-3. One of those men, Mr. Elliot A. Ray, is the only person Plaintiff has identified

as a potential comparator. See Pl.’s Opp. (ECF No. 98) at 5-6. According to Plaintiff, Mr. Ray, “as a

white man received better treatment from Defendant despite the fact that he was carrying a loaded

gun” when he entered the NY Fed. Id.

Even assuming arguendo that Mr. Ray is Caucasian, despite the lack of evidentiary support for

that proposition, Mr. Ray was a job applicant, not an employee. DH Sup. Decl. fflj 2-3, 10. He is

therefore not an adequate comparator to Plaintiff. See Graham 230 F.3d at 39 (“A plaintiff may raise

such an inference by showing that the employer subjected him to disparate treatment, that is, treated

him less favorably than a similarly situated employee outside his protected group.”) (emphasis added).

While the circumstances of the comparator need not be identical, the comparator must, at

minimum, also be an employee. Id. Accordingly, Mr. Ray is not a valid comparator, and Plaintiff

has failed to identify any other “similarly situated” comparator, which is fatal to his Title VII claim

because there is no basis for a reasonable jury to infer that Plaintiffs termination had anything to do

with his race. Pierre, 2009 WL 1583475, at *12 (S.D.N.Y. June 1, 2009).

Furthermore, even if Mr. Ray were a comparator, and assuming arguendo that Mr. Ray is

Caucasian, Mr. Ray was not treated better by the NY Fed than Plaintiff was. On December 18, 2012

Mr. Ray entered the NY Fed carrying a firearm and ammunition. DH Sup. Deck

5. He was

detained by the FRLE, and subsequently released to the United States Federal Protective Services

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(“FPS”). DH'S'up. Decl.

7-9. Similarly, when Plaintiff entered the NY Fed with an illegal

weapon, he was detained by FRLE, and subsequently released to the NYPD. The only difference in

the NY Fed’s treatment of the two men is which law enforcement body the NY Fed contacted in

each case. Mr. Ray claimed he legally possessed his firearm as part of his employment with the FPS.

DH Sup. Decl.

7. Therefore, the FRLE released Mr. Ray to the FPS as the law enforcement body

best situated to determine if Mr. Ray had committed a crime. DH Supp. Decl.

9. Similarly,

Plaintiff was released to the NYPD, the law enforcement entity best situated to determine if Plaintiff

had committed a crime. So even if Mr. Ray were a valid comparator, his treatment by the NY Fed

was not more favorable than Plaintiffs.6 Any actions taken by the NYPD are not relevant to this

inquiry. The inquiry is as to the treatment of Plaintiff, and the potential comparator, by the NY Fed.

Beyond Plaintiffs failure to identify a similarly situated employee, Plaintiff has otherwise

failed to produce any evidence upon which a reasonable jury could conclude that his termination

was discriminatory. The uncontroverted evidence indicates that Mr. Hurley’s recommendation

initiated Plaintiffs offboarding and eventual termination.7 56.1

34; DH Decl. ^]17; DC Decl. f 24.

Plaintiff claims that Mr. Hurley identified him as a risk going forward and recommended his

termination “simply because [he] is a Black man.” Pl.’s Decl. at 13. However, other than Plaintiffs

allegations, the record is bereft of any evidence supporting an inference that Mr. Hurley acted due to

a discriminatory animus. On the other hand, the uncontroverted evidence shows that Mr. Hurley

identified Plaintiff as a risk going forward on the basis of three factors: 1) the fact that Plaintiff

entered the NY Fed with an illegal weapons; 2) Plaintiffs demeanor during Mr. Hurley’s subsequent

interaction with Plaintiff and 3) his status as a contingent worker without a long term relationship to

the NY Fed. 56.1

33; DH Decl.

16. “[A]ssert[ing] that [the witness] may be lying, without any

evidence to contradict [his] testimony cannot defeat a motion for summary judgment.” Brown v.

Johnson &Johnson Consumer Products, Inc., 92-cv-7886-KTD, 1994 WL 361444, at *3 n.3 (S.D.N.Y. July

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It, 1994). This is especially the case here, as Plaintiff had never met Mr. Hurley befofe the events

leading to his termination, and, even in his own account, has no basis for his accusation of racial

animus other than Mr. Hurley’s decision to classify him as a threat and recommend his termination.

Accordingly, upon review of the record, the Court finds that no reasonable jury could

conclude that Plaintiff has demonstrated aprimafacie case of discriminatory termination, and grants

summary judgment to Defendant as to Plaintiffs remaining Title VII claims.1

B. New York State Human Rights Law9

Discrimination claims pursuant to the NYSHRL are subject to the same standard as Title

VII claims. Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007); Salazar v. Ferrara Bros. Bldg. Materials

Corp., No. 13-cv-3038-JG, 2015 WL 1535698, at *5 (E.D.N.Y. Apr. 6, 2015). Therefore, summary

judgment is granted to Defendant as to Plaintiffs NYSHRL claim for the reasons described in

Section 111(A), above.

C. New York City Human Rights Law10

Section 8-107(l)(a) of the NYCHRL makes it “an unlawful discriminatory practice . . . [fjor

an employer or an employee or agent thereof, because of the . .. race,. . . color[, or] national origin .

. . of any person,... to refuse to hire or employ or to bar or to discharge from employment such

person or to discriminate against such person in compensation or in terms, conditions or privileges

of employment.” N.Y.C. Admin. Code § 8-107(l)(a). A plaintiff may bring claims under the

NYCHRL for both discrimination and hostile work environment. See Dillon v. NedMgmt., Inc., 85 F.

Supp. 3d 639, 658 (E.D.N.Y. 2015). “Because claims for hostile work environment and

discrimination are governed by the same provision of the NYCHRL, they are analyzed under the

same standard.” Bacchus v. N.Y. City Dep’tofEduc., 137 F. Supp. 3d 214, 246 (E.D.N.Y. 2015).

Unlike Title VII, the NYCHRL “does not require ‘a connection between the discriminatory

conduct and a materially adverse employment action.’” Garrigan v. Ruby Tuesday, Inc., No. 14-cv-155,

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—2014\VL2r346T3,at*3-(S:D.N.Y. May 22, 2014) (quoting Mihalik v. Credit Agricole ChemremcN.

Am., Inc., 715 F.3d 102, 114 (2d Cir. 2013)). Indeed, the NYHRL is a “one-way ratchet, by which

interpretations of state and federal civil rights statutes can serve only as a floor below which the

[NYCHRL] cannot fall.” Mihalik, 715 F.3d at 109 (quotation marks omitted). The proper inquiry

under the NYCHRL is whether the plaintiff “was treated less well’ because of her [membership in a

protected class].” Pena-Barrero v. City ofNew York, No. 14-cv-9550, 2017 WL 1194477, at *15

(S.D.N.Y. Mar. 30, 2017) (quotingMihalik, 715 F.3d at 111) (alterations in original).

The NYCHRL must be construed “broadly in favor of discrimination plaintiffs, to the

extent that such a construction is reasonably possible.” Mihalik, 715 F.3d at 109 (quoting Albunio v.

City ofNew York, 16 N.Y.3d 472, 477-78 (Ct. App. 2011)). “The Court considers the totality of the

circumstances, and while courts may dismiss truly insubstantial cases, even a single comment may be

actionable in the proper context.” Bacchus, 137 F. Supp. 3d at 245. Nonetheless, the NYCHRL “is

not a ‘general civility code.’” Mihalik, 715 F.3d at 110 (citing Williams v. N.Y.C. HousingAutb., 872

N.Y.S. 2d 27, 40-41 (App. Div. 1st Dep’t 2009)). “The plaintiff still bears the burden of showing

that the conduct is caused by a discriminatory motive. It is not enough that a plaintiff has an

overbearing or obnoxious boss. [He] must show that [he] has been treated less well at least in part

‘because of [his protected characteristic].”’ Id. (citing Williams, 872 N.Y.S. 2d at 39, 40 n.27).

“To defeat summary judgment on a discrimination or hostile work environment claim, the

plaintiff need only show that her employer treated her less well, at least in part for a discriminatory

reason.” Bacchus, 137 F. Supp. 3d at 246 (quotation marks and quotation omitted). “The employer

may then present evidence of its legitimate, non-discriminatory motives to show the conduct was

not caused by discrimination but is only entitled to summary judgment where the record establishes

as a matter of law that discrimination played no role in its actions.” Id. (alterations, quotations, and

quotation marks omitted).

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In'its December 1, 2017 decision, the Court held that Plaintiff had plausibly alleged “that

[Mrs.] Crouch treated him ‘less well’ than other similarly situated employees outside of his protected

classes.” Nguedi II, 2017 WL 5991757, at *11. As Mrs. Crouch was Plaintiffs supervisor, and the

NY Fed is vicariously liable for any actions taken by Mrs. Crouch which may have violated the

NYCHL, Plaintiff s hostile work environment claim survived to the extent it related to Mrs. Crouch.

Id. at *12. However, to the extent that Plaintiffs hostile work environment claim related to actions

or comments by “the cafeteria employee and the ID clerk,” those claims were dismissed. Id.

Accordingly, Plaintiff s remaining NYCHRL claims are 1) his claim for discriminatory

termination and 2) his claim as to a hostile work environment created by Mrs. Crouch. For the

reasons that follow, no reasonable jury could find for Plaintiff on either claim, and accordingly

summary judgment is granted to Defendant as to Plaintiffs NYCHRL claims..

1. Plaintiffs NYCHRL Discriminatory Termination Claim

As discussed above in § 111(A), Plaintiff has adduced no evidence other than his allegations

and speculations that his termination was “caused by a discriminatory motive.” Mihalik, 715 F.3d at

110 (citing Williams v. N.Y.C. HousingAutb., 872 N.Y.S. 2d 27, 40-41 (App. Div. 1st Dep’t 2009)).

Nor is there any basis in the record upon which the Court could conclude that Plaintiffs

termination was “because” of, or had anything to do with, his race. Pena-Barrero, 2017 WL 1194477,

at *15. Nor is there any evidence that Plaintiffs termination meant he was treated at all “less well”

than anyone else would have been in his circumstance. Accordingly, even under the liberally

construed NYCHRL, Plaintiff has failed to adduce even that minimal quantum of evidence

necessary to preclude summary judgment in favor of Defendant.

Moreover, Defendant had “legitimate, non-discriminatory motives” for terminating Plaintiff,

and there is no evidence, outside Plaintiffs conclusory allegations and speculations, that

discrimination played any role in his termination. Bacchus, 137 F. Supp. 3d at 246. It is an

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uncontested’fact that Defendant brought an illegal weapon into the NY Fed. 56.1 Tf 26; Pl.’s Dep.

42-12-21; see NY P.L. § 265.01. That is a legitimate, non-discriminatory motive for Plaintiffs

termination. If Plaintiff had advanced any evidence beyond his own conclusory allegations and

speculations which' tended to show that discrimination played any role in his termination, his

NYHCRL claim might have survived summary judgment. Bacchus, 137 F. Supp. 3d at 246 (“The

employer may then present evidence of its legitimate, non-discriminatory motives to show the

conduct was not caused by discrimination but is only entitled to summary judgment where the

record establishes as a matter of law that discrimination played no role in its actions.”) (quotation

marks and alterations omitted). Here, however, Plaintiff has adduced no such evidence.

Accordingly, summary judgment is granted to Defendant as to Plaintiffs claim for discriminatory

termination under the NYCHRL.

2. Plaintiffs NYCHRL Hostile Work Environment Claim

Plaintiff has also completely failed to adduce any evidence, outside his own conclusory

allegations and speculations, which tends to show that he was subjected to discriminatory treatment

while employed at the NY Fed. Accordingly, summary judgment is granted to Defendant as to

Plaintiffs surviving hostile work environment claims under the NYCHRL.

Broadly speaking, Plaintiff has advanced four possible grounds for his hostile work

environment claim. First, he alleges that Mrs. Crouch yelled at him “every day” of his work

assignment in front of “everyone.” 56.1 ][ 43, Pl.’s Dep. 71:13-72:11. Second, he alleges that Mrs.

Crouch once told him to “show less leadership.” 56.1

45; Depo 74:13-16. Third, he alleges that

Mrs. Crouch laughed at an identification badge photograph he found embarrassing and refused to

• help him get the picture retaken and replaced. 56.1 fflj 46-47; Pl.’s Dep. 67:13-17. And fourth,

Plaintiff alleges that “since day one” of his employment, his work area was consistently monitored

by three police officers under the guise of co-employees. 56.1 ^ 48; Pl.’s Dep. 94:4-195:18. Beyond

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his own conclusory allegations and speculations, Plaintiff has submitted no evidence to Support his

claims that these events took place, or that even if those events did take place, they had any nexus to

his membership in a protected class.

Taking Plaintiff s allegations in reverse order: Plaintiff admits that his belief that the

“coworkers” stationed near him were in reality undercover police officers is based purely on his

speculation. See Depo 95:22-97:14.n On the other hand, both Mrs. Crouch and Mr. Hurley have

submitted declarations categorically denying that Plaintiffs claim has any basis in fact. 56.1^] 49; DC

Deck Tf 28; DH Deck ^ 26-27. Plaintiff “may not rely on conclusory allegations or unsubstantiated

speculation,” to survive summary judgment. Fujitsu Ltd v. Fed. Express Corp., 247 F.3d 423, 428 (2d

Cir. 2001). Given the lack of evidence supporting his claim, and the evidence to the contrary, the

Court concludes that no reasonable jury could determine that the NY Fed used undercover officers

to surround Plaintiff in his workspace. Accordingly, the Court need not further consider this aspect

of Plaintiffs claim.

As to the remaining three allegations, they all suffer from the same fatal flaw—the total lack

of evidence connecting these purported events with a discriminatory animus. Even assuming,

arguendo, that Mrs. Crouch yelled at Plaintiff every day, told him to show less leadership, and laughed

at him while refusing to help him get his identification photograph replaced—as described those are

all facially neutral acts untethered to discriminator)' intent.12

The NYCHRL “is not a ‘general civility code.’” Mihalik, 715 F.3d at 110 (citing Williams v.

N.Y.C. Housing Autb., 872 N.Y.S. 2d 27, 40-41 (App. Div. 1st Dep’t 2009)). “The plaintiff still bears

the burden of showing that the conduct is caused by a discriminatory motive. It is not enough that a

. plaintiff has an overbearing or obnoxious boss. [He] must show that [he] has been treated less well

at least in part ‘because of [his protected characteristic].”’ Id. Plaintiff has made it clear that he

believes these events took place, and that he believes he was targeted “simply because [he is] a Black

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man and solely based on race” 56.1

26. However, he failed to produce evidence of the context of

these alleged events, statements from other employees who witnessed the alleged events, or any

other evidence beyond his own speculations from which the Court could infer a discriminatory

animus motivating these actions (even assuming, arguendo, that they took place). Nor has Plaintiff

even claimed that Mrs. Crouch or any other NY Fed employee ever made a facially discriminatory

statement. In sum, there is no evidence upon which a reasonable jury could conclude that Plaintiff

was treated less well, and even assuming arguendo that he was treated less well, there is no evidence

upon which a reasonable jury could conclude that that any ill treatment he endured “was because of’

his membership in a protected class.” Mihalik, 715 F.3d at 110. Accordingly, Defendant’s motion

for summary judgment is granted as to Plaintiffs hostile work environment claim.

II.

CONCLUSION

For the reasons state above, Defendants motion for summary judgment is GRANTED in its

entirety.

The Clerk of Court is directed to enter judgment for Defendant, and to terminate this case.

The Clerk of Court is further directed to mail this opinion and order to Plaintiff, by certified mail, at

both the address listed on the docket, and the address referenced in the Court’s July 26, 2018 order.

(ECF No. 107).

SO ORDERED.

Dated: March 7, 2019

New York, New York

greGo^h. WOODS

United States District Judge

E.g. Plaintiffs allegation that Defendant “is a “MONSTROUS JEWISH ORGANISATION.” 56.11) 26.

2 The facts presented in this opinion are, in large part, taken from the parties Local Rule 56.1 statements, as well as the

declarations of various witnesses, and Plaintiffs deposition. In his 56.1 response, blanketly denies many of the facts,

presented here, often failing to cite any evidence in support of his denial. E.g. 56.1 at 35 (“Other than Plaintiff, no one

who reported to Mrs. Crouch has ever possessed a weapon of any kind on New York Fed premises or has been deemed

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a risk by Federal Reserve Law Enforcement. DC Deck H 25. PLAINTIFF RESPONSE: NOT TRUE. Plaintiff was

not there during the 33 plus years Mrs. Crouch has been working for Defendant to attest of such a statement and

Plaintiff was deemed a risk by Defendant only because Plaintiff is a Black man. Additionally, Plaintiff saw many people

with all sorts of weapons inside the Defendant [sic] facilities and has no ways [sic] of tracking how all these weapons got

in there, every day of the week 24 hours a day but yet Plaintiffs little key-chain pepper spray some how makes Plaintiff a

‘Risk.’ Triggering the same question again, there are plenty of weapons and guns at the Federal Reserve, so Defendant

cannot argue nobody ever for in there with a key chain knife or key chain tool similar to what Plaintiff had in his

luggage. Who else is Defendant classifying as a ‘risk’ and a risk of what exactly? What tangible risk Defendant saw [sic]

in Plaintiff Plaintiff is classified as a risk only because Plaintiff is a black man. What other bogus classifications like that

[does] Defendant applies [sic] on black people? .How many? And what are they doing to these people? And who is

determining if what they do to the people they classify as [sic] ‘risk’ or anything else they can come up with, is consistent

with the United States Constitution? Defendant believe it has life and death rights on citizens as they can use the police

to execute innocent citizen simply because of their race, as plaintiff [sic] experienced first hand. Plaintiff [sic] mere

possession of these [sic]safety equipment is not a crime and Plaintiff should have never been arrested as Plaintiff had no

intention to use these [sic] equipment against Defendant.”)

In the instances where Plaintiff did cite to evidence, the evidence cited most often either did not support his position or

was simply inapposite. Eg. 56.1 J| 20 (“During his work assignment, Plaintiff never raised any discrimination concerns

though [the NY Fed’s applicable] procedure. PL Dep. 88:19-19. PLAINTIFF RESPONSE: NOT TRUE. Plaintiff

raised discrimination and other issues and was never helped. Appendix G”; compare id. with App’x G to Pl.’s Opp. (ECF

No. 100-7) (email from Plaintiff reporting an alleged incident in which a delivery man appeared at Plaintiffs home

without Plaintiff having ordered anything, and without any reference to discrimination—or even race in general); see also

Pl.’s Dep. (ECF No. 96-1) at 91:18-20 (“That’s how I know the Federal Reserve was trying to kill me. Because that guy

was not a delivery guy.”).

As was done in this case, “if the moving party seeks summary judgment against a pro se litigant, the moving party is also

required to notify the pro se litigant of the requirements of Rule 56 and Local Civil Rule 56.1.” Wall v. One Source Co., 678

F. Supp. 2d 170,178 (S.D.N.Y. 2009); tee Notice to Pro Se Litigant Who opposes a Motion for Summary Judgment (ECF

No. 97). “Pro se litigants are not then excused from meeting the requirements of Local Rule 56.1. Id. (citing Vt. Teddj

Bear Co. v. 1—800—BEARGRAM Co., 373 F.3d 241, 246 (2d Cir.2004). However, “where a pro se plaintiff fails to submit a

proper Rule 56.1 statement in opposition to a summary judgment motion, the Court retains some discretion to consider

the substance of the plaintiffs arguments, where actually supported by evidentiary' submissions.” Id. (citing Ho/ty v.

Rockefeller & Co., 258 F.3d 62, 73 (2d Cir.2001); Johnson v. New York, 4-cv-1070-DLI-LB, 2007 WL 764514, at *6, 2007

U.S. Dist. LEXIS 17212, at *18—19 (E.D.N.Y. Mar. 9, 2007). In light of Plaintiffs pro se status the Court has

independently reviewed the complete record in its attempts to substantiate Plaintiffs assertions—and has, in the vast

majority of instances, been unable to find any evidence supporting those assertions.

3 Pl.’s Dep. at 99:4-15(“Q. The conduct that you’re claiming is discriminatory'. Did you tell anyone here that ‘I’m being

discriminated against’? A. Yeah. Q. Who did you tell? A. I'm not going to tell ymu. Q. Why not? A. Because I don't

want to. I told a few people. Q. You’re going to withhold that information. A. I will until I need it to come out.); id. at

99:11-18 (Q. But did you tell them verbally'? A. I told everyone. Let me answer that question. I told everyone in the

universe that the Federal Reserve is a crappy place filled with racists, racist white Jews, racist white people that are out

there to destroy everybody else and enslave everybody who is not interested in paying attention in what they’re doing.”).

4 The fact that the criminal case against Plaintiff was ultimately dismissed on February 22, 2016 could not have been

known to any party when the decision to terminate Plaintiff was made on December 23, 2015, and could not have

impacted the decision making of any NY Fed employ'ee, or any NYPD officer on December 23, 2015, despite Plaintiffs

protestations that he was eventually “completely exonerated” of that crime. 56.1 ^[ 29.

5 Beyond Plaintiffs conclusory' allegations and speculations, he offers almost no evidence to support his claims—which

is insufficient at the summary judgment stage. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)

(the non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts”)

(citations omitted); she Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (non-movant may not “may not

rely on conclusory' allegations or unsubstantiated speculation”) (internal quotation marks and citation omitted).

6 Of course, as a job applicant, Mr. Ray could not have been, and was not, terminated—demonstrating why he cannot be

considered a valid comparator. And even if the analogy between Plaintiff and Mr. Ray were stretched beyond its

23

Case l:16-cv-00636-GHW Document 110 Filed 03/07/19 Page 24 of 24

breaking point, there is no evidence that Mr. Ray was hired by the NY Fed after his firearm related incident.

7 The vast majority of Plaintiffs allegations relate to Mrs. Crouch’s alleged discriminatory animus. Plaintiff has not

produced evidence sufficient to support those claims, but even if he had, there is no evidence that Mrs. Crouch had

anything to do with Plaintiffs termination beyond Plaintiffs claim that “Mrs. Crouch and her supervisors are lying”

about their lack of involvement in his termination. 56.1 Resp. 35.

® Even if, arguendo, Plaintiff had demonstrated his prima facie case of discriminatory termination, the Court would still

have granted summary judgment to Defendant due to Defendant’s legitimate, non-pretextual basis for terminating

Plaintiff. Simply put, it is undisputed that Plaintiff, a contingent worker working pursuant to an at will contract, brought,

an illegal weapon into the NY Fed. That is a legitimate, nondiscriminatory ground for termination. Beyond Plaintiffs

speculations and conclusory allegations, he has adduced no evidence that his illegal conduct was a mere pretext

justifying his termination. On the other hand, four NY Fed employees have testified, and contemporaneous

documentation confirms, that Plaintiff s termination was, in fact, due to his decision to bring an illegal weapon into the

NY Fed. See, generally, DH Decl.; DC Decl.; GA Deck; FA Deck In sum, Defendant has a compelling, non­

discriminatory, and legitimate basis for Plaintiffs termination, and Plaintiff has advanced no evidence supporting his

allegations that those reasons were mere pretext masking discriminatory animus. On the record presented, no

reasonable jury could conclude that Plaintiffs termination was discriminatory.

9 Defendant asserts that both the NYSHRL and the NYSHRL, as applied to Defendant in Plaintiffs claims, are

preempted by federal law. Def.’s Br. (ECF No. 90) at 21. The Court need not, and does not, reach that issue, as

Defendant has been granted summary judgment on all claims.

10 See n.8, above.

11 “Q: How do you know that these individuals were police officers? A. Because they looked, smelled, walked, talked,

and did everything like police officer except having a badge, because I'm pretty sure they have guns. I saw some of

them with guns. So people with guns don’t work in technology in general. Q. Did you inform anyone else at the New

York Fed that these people around you had guns? A. What? It’s not my business.”

12 To be clear, beyond Plaintiffs own statements, there is no evidence supporting his claim that these events took

place. Nor is there evidence supporting Plaintiff allegation that Mrs. Crouch sent an assassin to his apartment under

guise of a delivery man. Pl.’s Dep. 92:7 (“Everyone was suspecting [Mrs. Crouch] sent a killer to my house.”).

24

Case l:16-cv-00636-GHW Document 107 Filed 07/26/18 Page 1 of 4

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

X

USDCSDNY

DOCUMENT

ELECTRONICALLY FILED

DOC #: _________________

DATE FILED: 7/26/18

GERARD NGUEDI,

Plaintiff,

l:16-cv-636-GHW

-against-

ORDER

THE FEDERAL RESERVE BANK OF NEW

YORK,

Defendant.

X

GREGORY H. WOODS, District Judge:

On July 26, 2018, the Court received a letter from Plaintiff, dated July 20, 2018 (“Pl.’s Ltr.”).

In that letter, Plaintiff explains that he was arrested on July 16, 2018 and is currently incarcerated at

the Prince William-Manassas Regional Adult Detention Center in Virginia. Plaintiff seeks the

Court’s assistance.

First, Plaintiff asks that the Court “shut down the current accusation against Plaintiff as part

of 16-cv-636 and 16-cv-4430 so that Plaintiff does not have to have this many different lawsuits and

bring these charges from Prince William County to an end.” Pi’s Ltr. at 4. The Court understands

this request to be twofold: that the Court take some action to bring the Virginia state criminal

action against him to an end and, to the extent the Virginia state criminal matter proceeds, that the

Court consolidate that criminal matter with the two cases that Plaintiff currendy has pending in this

district (Nos. 16-cv-636 (GHW) and 16-cv-4430 (RA)). With apologies to Plaintiff, the Court is

unable to do either. Article III of the United States Constitution provides that the federal courts are

courts of “limited jurisdiction.” Russman v. Bd. ofEduc. ofEnlarged City Sch. Dist. of City ofWatervliet,

260 F.3d 114, 118 (2d Cir. 2001) (citing U.S. Const, art. Ill, § 2). That is, only certain matters may

be adjudicated by a federal district court judge. Because of this limitation, this Court does not have

Case l:16-cv-00636-GHW Document 107 Filed 07/26/18 Page 2 of 4

plenary jurisdiction over a state criminal proceeding in another state, such as the one that is currently

pending in Virginia against Plaintiff. Therefore, the Court cannot “shut down” that proceeding or

otherwise direct the Virginia state court to terminate the criminal proceedings against Plaintiff.

The Court is also unable to consolidate all of Plaintiffs pending cases. As a threshold

matter, as the Court has just explained, it has no jurisdiction over the Virginia state criminal action

and cannot hear that matter in connection with the case currently pending before this Court.

Therefore, the Court cannot order that the Virginia matter be transferred to this Court or that it be

consolidated with either of the cases that Plaintiff has pending in this district.

With respect to the cases pending in this district, the Court is also unable to grant Plaintiff

the relief that he seeks. In this district, there are two mechanisms by which a plaintiff may seek to

have multiple cases heard by the same judge. First, a plaintiff may notify the Court that a case he

has filed is related to another pending case. Rule 13 of the Local Civil Rules of the United States

District Courts for the Southern and Eastern Districts of New York (“Local Civil Rules”) explains

that “a civil case . . . will be deemed related to one or more civil cases . . . when the interests of

justice and efficiency will be served.” To determine whether two cases are related under this Rule, a

court considers “whether (A) the actions concern the same or substantially similar parties, property,

transactions or events; (B) there is substantial factual overlap; (C) the parties could be subjected to

conflicting orders; and (D) whether absent a determination of relatedness there would be a

substantial duplication of effort and expense, delay, or undue burden on the Court, parties or

witnesses.” Local Civil Rule 13(a)(1). Notwithstanding these considerations, “[cjivil cases shall not

be deemed related merely because they involve common legal issues or the same parties.” Local

Civil Rule 13(a)(2)(A).

The Court understands that Plaintiff has filed two cases in the Southern District of New

York. The first is the case currently pending before this Court, Nguedi v. The Federal Reserve Bank of

2

Case l:16-cv-00636-GHW Document 107 Filed 07/26/18 Page 3 of 4

New York, No. 16-cv-636 (GHW), filed on January 27, 2016. The second case is a case pending

before Judge Abrams, Nguedi v. City ofNew York, No. 16-cv-4430 (RA), which was filed on June 13,

2016. The case pending before this Court is an action against Plaintiffs former employer in which

Plaintiff brings federal, state, and municipal employment discrimination claims. See Dkt. No. 51,

Nguedi v. The Federal Reserve Bank ofNew York, No. 16-cv-636 (GHW). The case pending before

Judge Abrams is an action brought pursuant to 42 U.S.C. § 1981 and 42 U.S.C. § 1983 and alleges

claims for excessive force, equal protection violations, and municipal liability in connection with

Plaintiff s March 1, 2016 involuntary commitment. See Dkt. No. 27, Nguedi v. City ofNew York, 16cv-4430 (RA). Plaintiff references the termination of his employment in his complaint against the

City of New York. See id. However, the causes of action that are pleaded and the facts underlying

those causes of action differ substantially in each case. Because there is no substantial overlap of

facts and because both actions do not concern the same transactions or events, the Court cannot

conclude that they are related under Local Civil Rule 13.

The second method by which cases may be heard by the same judge is by consolidation of

the cases under Federal Rule of Civil Procedure 42. That Rule provides that “[i]f actions before the

court involve a common question of law or fact, the court may . . . consolidate the actions.” Fed. R.

Civ. P. 42(a). District courts have broad discretion to determine whether consolidation is

appropriate. See Johnson v. Cektex Corp., 899 F.2d 1281,1284-85 (2d Cir. 1990). Consolidation is

warranted where it promotes “judicial economy,” id. at 1285, and serves to eliminate “the waste

associated with duplicative discovery and multiple trials, and the danger of inconsistent verdicts,”

Internal Law Library, Inc. v. Southridge Capital Mgmt. LLC, 208 F.R.D. 59, 61 (S.D.N.Y. 2002). Here, as

explained above, the claims that Plaintiff brings in each case pending in the Southern District of

New York are based on entirely different factual predicates. The cases do not present common

3

Case l:16-cv-00636-GHW Document 107 Filed 07/26/18 Page 4 of 4

questions of fact or of law, and trying the cases together would not promote judicial economy.

Therefore, the Court will not consolidate these two cases.

Plaintiff also has expressed concern in his letter that the United States Postal Sendee has

caused delays in the mailing of his submissions in opposition to Defendant’s summary judgment

motion. See Pl.’s Ltr. at 5. To assuage Plaintiffs concerns, the Court confirms that it has received

his summary judgment submissions and will consider them all as timely submitted. Plaintiff

electronically filed his memorandum of law in opposition to the summary judgment motion on July

6, 2018. Dkt. Nos. 98-99. On July 9, 2018, the Court received Plaintiffs response to Defendant’s

Local Civil Rule 56.1 Statement, which was sent to the Court via FedEx. Dkt. No. 102. Defendant

filed its reply to Plaintiffs opposition on July 20, 2018. Dkt. Nos. 103-105. Defendant’s summary

judgment motion is now fully briefed, and the Court has not directed Plaintiff to file any further

submissions in connection with that motion. In the event that the Court directs Plaintiff to submit

any additional documents in the future, Plaintiff may at that time alert the Court to any problems

that he has in either filing such documents electronically or in mailing them to the Court.

The Court understands that Plaintiff has a court appearance in the pending criminal matter

scheduled for August 21, 2018. To the extent that the criminal matter interferes with Plaintiffs

ability to comply timely with any future orders of this Court, Plaintiff should notify the Court, and

the Court expects it will accommodate Plaintiff to the extent reasonably feasible.

The Clerk of Court is directed to mail a copy of this order to Plaintiff by certified mail to

Gerard Nguedi, Inmate No. 17-02364, Prince William-Manassas Regional Adult Detention Center,

9320 Lee Avenue, Manassas, Virginia 20110.

SO ORDERED.

Dated: July 26, 2018

New York, New York

GREGORYsH. woods

United States District Judge

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