Petition for Writ of Certiorari — Allah v. City of New York Department of Parks & Recreation

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= 02 9B DEC 2 02008

NO. ogrice&oF THE CLERK

In the

Supreme Court of the Anited States

SHATIEK ALLAH, -

Petitioner,

¥.

Crty oF NEw YorK DEPARTMENT

OF ParKS & RECREATION,

Respondent.

On PetiTION For Writ Or CERTIORARI

To Tue UNITED States Court Or APPEALS

For THe SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ALAN E. WOLIN

Counsel of Record

Wo.In & WOLIN

420 JERICHO TURNPIKE

SulTE 215

JERICHO, NY 11753

(516) 938-1199

Counsel for Petitioner

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

ee ae ee Po

A es me lM

Cet nn nately Sete

QUESTIONS PRESENTED

: The court below did not give appropriate heed to this

Court’s decision in National R.R. Passenger Corp. v.

Morgan, _ U.S. _,, 122 S.Ct. 2061 (2002), which was

decided during the pendency of the appeal.

y 4 The finding of the court below that petitioner offered

insufficient evidence to allow a reasonable fact finder to

conclude that respondent’s proffered reasons were pretextual

and its real motive discrimination, upon the motion for

summary judgment, was inconsistent with decisions of this

Court.

8 The finding of the court below that there was

insufficient evidence for a reasonable trier of fact to conclude

that retaliation for protected activity motivated actions against

petitioner, upon the motion for summary judgment, was

inconsistent with decisions of this Court.

LIST OF PARTIES

Petitioner

The petitioner, Shatiek Allah, has no corporate

affiliations.

Respondent

The respondent is New York City Department of

Parks and Recreation.

ii

TABLE OF CONTENTS

Questions Presented

List of Parties

Opinions Below

Jurisdiction

Statutory Provision Involved

Statement of the Case

A. Relevant Facts

B. Proceedings Below

Reasons for Granting the Writ

B The court below did not give appropriate heed

to this Court’s decision in National R.R.

Passenger Corp. v. Morgan, _U.S. _, 122

S.Ct. 2061 (2002), which was decided during

the pendency of the appeal

y & The Finding of the Court below That

Petitioner Offered Insufficient Evidence to

Allow a Reasonable Fact Finder to Conclude

That Respondent’s Proffered Reasons Were

Pretextual and its Real Motive Discrimination,

upon the Motion for Summary Judgment, Was

Inconsistent with Decisicns of this Court. ..... 23

a The Finding of the Court below That There

Was Insufficient Evidence for a Reasonable

Trier of Fact to Conclude That Retaliation for

Protected Activity Motivated Actions Against

Petitioner, upon the Motion for Summary

Judgment, Was Inconsistent with Decisions of

gS eee eee ee eee ees 26

ere eee eee eee ee rere E 28

Appendix

Appendix A

Summary Order of the United States Court of

Appeals for the Second Circuit dated

ge eee ore Tee ye re ee la

Appendix B

Transcript of August 23, 2001 proceedings ... 10a

Appendix C

Judgment of the United States District Court

for the Southern District of New York dated

ge eee rer ee ee ee 18a

Appendix D

Order with Bench Decision of the United

States District Court for the Southern District

of New York dated July 31,2001 ......... 20a

TABLE OF CITED AUTHORITIES

Page

Cases:

Adickes v. S.H. Kress & Co.,

oe ere rere ee 24-25

Anderson v. Liberty Lobby, Inc.,

Gee Ws OU CE 6 bk ec eee ee eeda wes 25

Celotex Corp. v. Catrett,

ie Bg) ere ere 24

Harris v. Forklift Systems Inc.,

> Be. rrr eee re as 22

Holtz v. Rockefeller & Co.,

yo Fe Tay Le ee | re rare 26

McDonnell Douglas Corp. v. Green,

ae es TE TEE 6 06 5 48 be oe he 24

National R.R. Passenger Corp. v. Morgan,

__ U.S. __, 122 S.Ct. 2061 (2002) ..... i, Si, ae

St. Mary’s Honor Center v. Hicks,

e 2 ef). Peerere eee eee Te 24

Texas Department of Community Affairs v. Burdine,

Se a DECREED 6 ce tsct ees tewewkes 24

United States v. Diebold, Inc..,

369 U.S. 654 (1962) (per curiam) .......... 25

vi

Statutes:

GS UBL. § GUO cc cece ccseesceess 1, 2, 19, 27

GRUB. DB TOUS ce okie ce eeceetens 1, 19-22, 27

\

>

Vii

Petitioner respectfully petitions for a writ of certiorari

to review the Summary Order of the United States Court of

Appeals for the Second Circuit in this case.

OPINIONS BELOW

The Order with Bench Decision of the United States

District Court for the Southern. District of New York is

reported at 162 F.Supp.2d 270 (SDNY 2001) and is

reproduced in the Appendix. The Summary Order of the

United States Court of Appeals for the Second Circuit is

unreported and is reproduced in the Appendix.

JURISDICTION

The Summary Order of the United States Court of

Appeals for the Second Circuit wds rendered on September

25, 2002. No rehearing was requested.

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved are Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, er

seq. and 42 U.S.C. §1981.

42 U.S.C. §1981 provides:

“(a) Statement of equal rights

All persons within the jurisdiction of the

United States shall have the same right in

every State and Territory to make and enforce

contracts, to sue, be parties, give evidence,

and to the full and equal benefit of all laws and

proceedings for the security of persons and

l

property as is enjoyed by white citizens, and

shall be subject to like punishment, pains,

penalties, taxes, licenses, and exactions of

every kind, and to no other.

(b) ‘Make and enforce contracts’ defined

For purposes of this section, the term ‘make

and enforce contracts’ includes the making,

performance, modification, and termination of

contracts, and the enjoyment of all benefits,

privileges, terms, and conditions of the

contractual relationship.

(c) Protection against impairment

The rights protected by this section are

protected against impairment by

nongovernmental discrimination and

impairment under color of State law.”

42 U.S.C. §2000e-2(a) provides:

(a) Employer practices

It shall be an unlawful employment practice

_ for an employer --

(1) 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; or

(2) to limit, segregate, or classify

his employees or applicants for

employment in any way which would

deprive or tend to deprive any

individual of employment opportunities

or otherwise adversely affect his status

as an employee, because of such

individual’s race, color, religion, sex,

or national origin.”

STATEMENT OF THE CASE

A. Relevant Facts

Petitioner is an African-American and a member of the

Five Percenters religion. He became employed by

respondent, New York City Department of Parks and

Recreation, in or about May, 1985. At that time, petitioner

was employed as a Seasonal Employee. In or about

December, 1985, his status was upgraded to that of a

permanent employee.

At all times during petitioner’s employment, his job

performance was good. At various times during his

employment, petitioner had been “stepped up” to supervisory

positions, including WEP Crew Chief and Seasonal Park

Supervisor. One such time occurred as a result of a letter

from George A. Scarpilli, Chief of Operations, dated May 26,

1995, wherein petitioner was advised that he had been

accepted for a step-up position as a Parks Supervisor. During

most of the times relevant hereto, except for the periods that

he was stepped up, petitioner was employed as a City Park

3

Worker. He was assigned to District 8 in Brooklyn, New

York.

Petitioner’s duties and responsibilities as a City Park

Worker included general maintenance, cleaning, painting over

graffiti and picking up trash. For a large part of the time,

petitioner was assigned to Lincoln Terrace Park in Brooklyn,

New York.

During petitioner’s employment as a City Park

Worker, he was immediately supervised by a Park

Supervisor. During times relevant hereto, he was supervised

by Park Supervisors Henry Roman and James Powers.

Petitioner’s second line supervisor or the immediate

supervisor of the Park Supervisor during his employment as

a City Park Worker was the Principal Park Supervisor.

During times relevant hereto, petitioner’s Principal Park

Supervisor was Jose Cruz. Mr. Cruz became petitioner’s

Principal Park Supervisor in November, 1996 and remained

as such through his termination.

Petitioner’s third line supervisor or the immediate

supervisor of the Principal Park Supervisor was the Park &

Recreation Manager. During times relevant hereto,

petitioner’s Park & Recreation Manager was Lena Neglia.

Ms. Neglia was his Park & Recreation Manager between

October, 1996 and August, 1998. She was succeeded by

Arthur DeCesario. The Park & Recreations Manager reported

to the Chief of Operations. During times relevant hereto, the

Chief of Operations was Nancy Barthold.

All of these individuals, who undertook the

complained of actions against petitioner, are

non-A frican-American and are not of his religion. In fact,

respondent did not have any Park Supervisors who are

African-American.

On or about October 30, 1996, while petitioner was

acting as a Crew Chief for the Work Experience Program

(WEP), he was threatened with arrest and harassed by

respondent’s Advocate’s Office during its investigation of an

individual named Jerry Martin, an employee who had been

arrested for possession of a firearm.

On or about October 31, 1996, petitioner was, again,

interrogated by a representative of respondent’s Advocate’s

Office regarding the circumstances of the arrest of Jerry

Martin. When petitioner, again, indicated that he had no

knowledge of the circumstances regarding Mr. Martin, he was

advised that a urine test, taken two (2) weeks prior to the

interrogations, had yielded a positive result for cocaine. This

information was given to petitioner by respondent’s agents for

the purpose of coercing him into changing his story regarding

Jerry Martin. Petitioner did not believe that he should have

properly tested positive and disputed the finding. Respondent

also attempted to coerce petitioner by having Park

Investigators go into trash cans, take out beer cans and bottles

and try to contend that petitioner was consuming beer on the

job.

During this time, in a further effort to coerce

petitioner, respondent caused a false report to be filed that

petitioner had been arrested for criminal possession of

marijuana in the fifth degree on January 3, 1997. Petitioner

then produced court documentation that he had, in fact, never

been arrested for possession of marijuana.

Petitioner was offered an opportunity to resolve the

discipline associated with the alleged positive test for cocaine.

5

He refused to settle the matter, via stipulation which would

have resulted in a surrendering of any future procedural

safeguards and, instead, wanted to have a full trial or hearing

on the matter. Petitioner retained counsel and his counsel

filed a timely appeal of the initial determination of respondent

Parks Department as to the positive test results.

Unfortunately, respondent did not permit petitioner to have an

independent review of the disciplinary matter, by falsely

_arguing that petitioner’s then attorney did not timely file the

appeal. As a result, respondent refused to hear petitioner’s

appeal and petitioner was held remediless. Respondent should

have proceeded to hold a hearing pursuant to statute.

As a result of respondent’s denying petitioner a

hearing, his pay was docked, he had vacation days taken

away, he was fined a sum of money and he was given four (4)

medical screenings over the course of the next year.

Respondent also recommended that petitioner, for a one year

period, participate in respondent’s Employee Assistance

Program. Despite said recommendation, petitioner was never

required to participate in the Employee Assistance Program.

Petitioner was also stepped-down from his position as Crew

Chief. Petitioner’s complaints to respondent’s Director of

Labor Relations were ignored. It should be noted that Dennis

Mesiano, the individual who issued this determination, was

the same person to whom petitioner personally handed his

EEO complaint with reference to the Jerry Martin situation.

During the period of 1996-1997, two (2)

non-African-American employees who were of a religion

different than petitioner, Edward Pagan, a City Park Worker,

and Anthony Perrone, a Maintenance Worker, also failed

drug tests. Both, unlike petitioner, were stepped-up during

the Summer, 1997. Petitioner, on the other hand, was

advised by Ms. Barthold, in a letter dated June 6, 1997, that

he was not to be stepped-up.

Between 1988 and 1996, respondent had consistently

given petitioner permits to conduct special events, including

events to celebrate Black History Month and certain youth and

family events. These events were held at the Von King

Center, a recreation center located in Brooklyn, New York.

Beginning in or about 1996-1997, Ms. Neglia and

other agents of respondent, denied petitioner permits to

conduct the same events at the Von King Center. These

denials were without justification and were motivated, in part,

by the false disciplinary charges that petitioner had received.

Petitioner was the only employee of respondent so treated.

In a letter dated December 15, 1997 to Ms. Barthold,

petitioner complained of the denial of the -permits and

requested that Ms. Barthold investigate the matter. Ms.

Barthold did nothing. Similar complaints to the

Commissioner’s Office also failed to resolve the situation.

In or about October, 1996 and continuing at least ten

(10) times thereafter, Ms. Neglia and then Mr. DeCesario

wrongfully docked petitioner’s pay. Petitioner’s pay was so

docked, even though he had the appropriate medical

documentation so as not to have his pay diminished. The

reasons Ms. Neglia gave for rejecting petitioner’s

documentation were that they were photostated copies not

containing an original signature or had missing information.

At another time, another witness for respondent stated that

some were submitted untimely. Petitioner denies these

allegations. Respondent obviously did not want a record of

petitioner’s job related stress and was clearly retaliating

against petitioner. i

Respondent has a policy that an employee does not

have to furnish a doctor’s note for every absence, but only

after an employee is absent for three consecutive days.

Moreover, a note is not required to be submitte1 until the

employee has returned for 5 days. Upon information and

belief, no one else had his/her medical documentation refused

for these reasons.

Respondent Parks Department changed and/or altered

petitioner’s work schedule and by changing his day off so that

he could not take care of any personal business without taking

a personal or vacation day. This affected petitioner because

he could no longer schedule certain appointments on Mondays

and this required him to take additional days off. No other

employee of respondent was treated the same way with

reference to the issue of days off or alteration of work

schedule.

An employee, such as petitioner, received a written

performance appraisal once a year. The performance

appraisal was completed by the employee’s immediate

supervisor. It was then reviewed by the third line supervisor,

who places the final signature on it.

In April, 1997, petitioner was issued such a

performance appraisal for the period January, 1996 through

February, 1997. Petitioner was given the overall rating of

“good” by his immediate supervisor. However, upon her

review, Ms. Neglia crossed out “good” and, instead, inserted

“conditional.” Ms. Neglia, during her deposition, could not

enunciate why she changed petitioner’s rating from “good” to

“conditional.”

Ms. Neglia changed the appraisal from “good” to

“conditional” after petitioner had already signed it. She did

8

not speak with petitioner about the change. Ms. Neglia,

before changing the evaluation, should have told petitioner

about it.

As the Park & Recreation Manager, Ms. Neglia

reviewed approximately 25-35 evaluations per year.

Petitioner’s evaluation was only one of two that Ms. Neglia

could remember changing.

At the time she changed the appraisal, Ms. Neglia

advised Mr. Cruz. Mr. Cruz then advised Ms. Neglia that he

did not think that she should change petitioner’s appraisal.

Ms. Neglia was very vague as to why she wanted the

appraisal changed. Mr. Cruz agreed that petitioner should

have been rated as “good.” Mr. Cruz had never before or

after seen a situation where Ms. Neglia changed the overall

rating box. In addition, Mr. Cruz could not enunciate why

Ms. Neglia had changed the appraisal, although he believed

it had something to do with the prior false disciplinary action.

Petitioner has no knowledge of any other employee’s appraisal

being changed without their knowledge in the same manner.

At the time Ms. Neglia changed petitioner’s

performance appraisal, he was seeking to become a Seasonal

Parks Supervisor, a position which he previously held on

several occasions. An individual who has a “conditional”

rating has a less likely chance of becoming a Seasonal Parks

Supervisor than one who has a “good” rating. After this

performance appraisal, petitioner was never again stepped-up

to any supervisory position. Petitioner soon filed one of his

many EEO complaints against Ms. Barthold. The agency, as

with many of petitioner’s other complaints, never properly

investigated his allegations.

On May 2, 1997, Mr. Roman issued a Supervisor’s

Conference to petitioner. Mr. Roman indicated that he issued

the document to petitioner upon the request of Ms. Barthold.

Mr. Roman did not witness the incident, which was the

subject matter of the Supervisor’s Conference and stated that

it was not right for someone else to order him to do a

Supervisor’s Conference for an incident for which he was not

there. Mr. Roman did not remember having to do so with

reference to anyone else.

As a result of the aforesaid actions, petitioner filed a

number of internal Equal Employment Opportunity

complaints with his employer alleging that he was the victim

of discrimination based upon race, religion and retaliation.

These complaints were filed against Ms. Neglia, Mr. Cruz,

Mr. Powers and Ms. Barthold, among others. Some of these

complaints were dated May 14, 1997, October 4, 1997,

October 29, 1997, December 15, 1997, January 30, 1998,

October 2, 1998, October 7, 1998, February 11, 1999,

February 25, 1999, April 20, 1999, July 13, 1999 and

November 23, 1999. All of petitioner’s relevant supervisors

had knowledge of these complaints.-

These complaints were never properly investigated by

respondent and its EEO Office. Petitioner also made Henry

Stern, respondent’s Commissioner, aware of these complaints;

all to no avail.

On March 8, 1999, petitioner was given a Supervisor’s

Conference (Write-Up) by Parks Supervisor Jose Cruz. Mr.

Cruz wrote petitioner up on orders of one Greg Dawson,

neither of whom had direct knowledge of the subject matter

of the write-up or were present at the time of the alleged

incident. Mr. Cruz wrote the memo based on what Greg

Dawson, the Chief of Operations, had told him. The write-up

10

did not enumerate petitioner’s accusers. This write-up

concerned an alleged incident that occurred involving

petitioner at the Brownsville Recreation Center during what

was called a “Right to Know Meeting” wherein petitioner

allegedly disrupted the meeting.

At this meeting, petitioner questioned respondent’s

EEO policy and the length of time it took to process a

complaint. He also inquired as to why respondent did not

have any African-American Park Supervisors. Petitioner did

not disrupt the meeting. Instead, respondent’s representative

was very uncomfortable and incapable of adequately

answering petitioner’s questions. Petitioner had been at the

location in order to speak to Chief of Operations, Mr.

Dawson, and his Manager, Mr. DeCesario, about his EEO

complaints. It was at that time that petitioner was ordered to

attend the “Right to Know Meeting.”

Mr. Cruz emphasized that he was not there, but was

told it was okay anyway. This was the only time that Mr.

Cruz had ever issued a Supervisory Conference for something

that he did not observe.

In conjunction therewith, petitioner corresponded with

Nancy Barthold, Chief of Operations, and Henry J. Stern,

Commissioner, for clarification of the write-up. He requested

the identity of the person charging him with the alleged

misconduct. After receiving no response, petitioner filed

discrimination complaints against Ms. Barthold and

Commissioner Stern for not identifying his accusers.

Subsequent to the filing of several complaints with

respondent’s EEO Office, respondent returned petitioner to

the 316 Park (Elijah Stroud Playground) in or about February,

1999. Petitioner had previously been assigned to Stroud

11

Playground in 1997. During his previous assignment at

Stroud Playground, petitioner had been the subject of a razor

attack and various other threats had been made against him.

Petitioner had also been arrested at that location and had

lodged several complaints concerning his assignment there,

including the safety of the Stroud Playground. ;

During the time that petitioner was assigned to Stroud

Playground in 1997, he was the only City Park Worker so

assigned. Ms. Neglia could not recall any other City Park

Worker assigned to the Stroud Playground.

Respondent and its agents had knowledge of

petitioner’s problems at Stroud Playground, but, nevertheless,

sought to reassign him there in February, 1999. This decision

was made by Mr. Cruz and Mr. DeCesario. Mr. Cruz could

not enunciate a reason why petitioner was reassigned to the

Stroud Playground in February, 1999. At the time petitioner

was reassigned, he was the only one selected to go.

Mr. Cruz and Mr. DeCesario transferred petitioner to

the Stroud Playground in February, 1999, despite

respondent’s policy to place someone there only during the

summer months, since there was no heat at the facility and the

water was turned off for the winter. Mr. DeCesario, during

his deposition, also stated that there was a heat and water

problem at the facility.

Mr. Cruz could not answer why respondent deemed it

necessary for petitioner to be assigned to the Stroud

Playground in February, 1999, despite the fact that

assignments at Stroud Playground were only made during the

summer. During the winter months, the Stroud Playground

was supposed to be a “mobile stop” with no one assigned

there.

12

A meeting was held in March, 1999, between

petitioner, Mr. DeCesario and Greg Dawson. During the

meeting, petitioner exhibited concern about his reassignment

to Stroud Playground. Mr. DeCesario admitted that he knew

of these concerns at the time.

Petitioner complained about his reassignment to the

Stroud Playground in February, 1999 and, as a result of these

complaints, was transferred back to Lincoln Terrace Park, his

previous assignment.

Mr. Roman also had knowledge of petitioner’s

complaints about the Stroud Playground. Mr. Roman advised

Mr. Dawson that there was no heat in the building; about the

previous razor attack and that he had problems with an

individual in the area, but Mr. Dawson did nothing about it.

Mr. Roman further stated that he objected to petitioner being

assigned to the Stroud Playground in 1999 to Mr. DeCesario;

to no avail.

In or about February, 1999, Mr. DeCesario also

learned that petitioner had had an incident during a previous

assignment at Stroud Playground and did not feel safe being

there. Mr. DeCesario also stated that, had he known that

petitioner felt threatened at Stroud Playground, he would not

have assigned him there.

Mr. Cruz advised petitioner that the EEO Officer of

respondent told petitioner’s supervisor not to send him back

to Stroud Playground. Mr. Cruz told petitioner that his

Manager, Mr. DeCesario, disregarded this directive and sent

him back there anyway.

In July, 1999, despite having knowledge of petitioner’s

previous problems and complaints concerning Stroud

13

Playground and after stating that he would not have

transferred him there with such knowledge, Mr. DeCesario

again decided to assign petitioner there.’

This occurred despite there being other employees who

could have been selected for the assignment. This also

occurred after petitioner had filed numerous EEO complaints

against the individuals involved. The reassignment back to

Stroud Playground was blatant retaliation and petitioner

ultimately filed an EEO complaint against Mr. DeCesario for

disregarding the said directive.

Mr. Cruz advised petitioner that he was to again be

transferred to the Stroud Playground on July 13, 1999.

Petitioner became annoyed at again being reassigned to the

Stroud Playground and the incident which led to his being

terminated occurred.

According to Mr. Cruz, petitioner uttered some curses

at him because he was “very very angry at [him] for

something [he guessed I] was annoyed at.” Mr. Cruz said

petitioner, “pushed up against [him], like belly to belly.”

This was the first time that petitioner had exhibited such

behavior, according to Mr. Cruz.

Petitioner also advised Mr. Cruz that he knew where

he lived and was going to “serve” him. By this, petitioner

' During his deposition, Mr. DeCesario seemed to claim

that he had little knowledge of petitioner’s problems and complaints

about Stroud Playground. However, there is no question that Mr.

DeCesario was being deceptive. There is no question in the record

that Mr. DeCesario was present at the March 2, 1999 meeting

wherein petitioner expressed his concerns about Stroud Playground.

14

meant that he was going to see him in court. Petitioner then

left the scene.

Mr. Powers witnessed this incident. He stated that

petitioner was unhappy because he had just been advised that

he was being transferred to another facility and heard him say

that he was being singled out and picked on.

Mr. DeCesario also witnessed the incident. Other than

observing petitioner place his chest up against Mr. Cruz’, he

did not observe petitioner coming into contact with Mr. Cruz

in any other fashion. Mr. DeCesario also stated that

petitioner did not threaten Mr. Powers or him. Petitioner did

not threaten Mr. DeCesario or Mr. Powers. Petitioner denies

striking, pushing or cursing at Mr. Cruz. He also denies

threatening Mr. Cruz.

Subsequently thereto, petitioner complained to

respondent’s Commissioner and was eventually assigned to

Mt. Prospect Park. While at Mt. Prospect Park, on or about

August 17, 1999, petitioner was assigned to clean up the park

by himself after an event. Although petitioner did nothing

wrong and denied disobeying an order to clean the park, he

was written-up by Ms. Barthold as a result.’

Ms. Barthold arrived at Mt. Prospect Park that day

with retaliatory and discriminatory motives. There was a

2 Interestingly enough, Mr. DeCesario wrote or telefaxed

his statement of the alleged July 13, 1999 incident to respondent on

August 17, 1999. It must be more than a coincidence that Mr.

DeCesario wrote his statement, at respondent’s request, more than

one month later and on the same day that Ms. Barthold wrote

petitioner up. Other individuals allegedly involved, such as Mr.

Powers, did not give a statement until September, 1999.

15

special event in the park the weekend prior to August 17,

1999. Petitioner was assigned to the park by himself. There

were hundreds of people at the park for the special event. It

took petitioner two (2) days to clean the park by himself.

Respondent should have assigned, pursuant to its normal

procedure, a large crew to clean the park. Upon her arrival,

Ms. Barthold only inquired as to why the perimeter of the

park was dirty, knowing full well that respondent’s procedure

was to first clean the playground of glass and debris so that

children are not injured. Once that is done, the focus is then

on the perimeter. Ms. Barthold never gave petitioner an

order to clean the perimeter.

It is not normal for only one employee to be assigned

to clean up after an event at Mt. Prospect Park. Mt. Prospect

Park is a fairly large park. Prior to petitioner’s being

assigned there, respondent had several workers assigned

there.

On or about October 1, 1999 and despite never

interviewing Park Supervisor Jose Cruz, respondent and its

agents charged petitioner with various acts of misconduct,

most of which arose from the alleged incident between

petitioner and Mr. Cruz on July 13, 1999. Petitioner was also

accused of threatening Mr. DeCesario and Mr. Powers. As

a result of these allegations, an informal “Step I” conference

was held with respondent’s agents on October 15, 1999, in

which respondent’s agents recommended that petitioner’s

employment be terminated.

A “Step II” conference was held on October 28, 1999

before respondent’s Office of Labor Relations. In a Decision

dated November 16, 1999, the Step II Officer also

recommended that petitioner’s employment be terminated. As

a result, petitioner was advised by Joseph Bernstein,

16

respondent’s Director of Labor Relations, in said decision that

his employment was terminated effective December 10, 1999.

Petitioner submits that Mr. Bernstein did not mail said

decision on November 16, 1999, but actually on November

23, 1999. Mr. Bernstein back-dated the decision so that it

would appear to be timely in light of the fact that respondent

only had ten (10) working days to issue the decision following

the Step II Conference. This is the same Joseph Bernstein who

claimed that petitioner’s appeal of the disciplinary action back

in 1997 was untimely.

On November 19, 1999, in a letter to James Hanley,

Commissioner of Labor Relations for the City of New York,

petitioner stated that Joseph P. Bernstein, Director of

respondent’s Labor Relations, did not issue his decision on

the charges in a timely fashion. Petitioner had written that

letter because he did not want it to be said later that Mr.

Bernstein issued his decision in a timely manner, denying

petitioner the opportunity to have the charges proffered

against him independently reviewed. Petitioner alleges that

after he had written the letter to Commissioner Hanley,

Joseph Bernstein back-dated his decision and mailed it on

November 23, 1999.

Mr. Bernstein indicated in his decision to terminate

petitioner, that “It is the Decision of the Review Officer, after

careful consideration of the facts, consultation with James

Powers, Park Supervisor, Arthur DeCesario, Park Manager,

Greg Dawson, Deputy Chief of Operations, and Nancy

Barthold, Chief of Operations and [petitioner’s] testimony in

conference, that [petitioner] is guilty of all charges and

17

specifications.” These were the same employees against

whom petitioner had filed several EEO complaints.’

Petitioner, thereupon, sought to schedule a hearing

with the New York City Office of Administrative Trials and

Hearings (OATH). Despite proper requests, he was never

afforded such a hearing because respondent inappropriately

claimed that petitioner’s union had not submitted an

appropriate “waiver” of an alternate remedy, which in and of

itself was never pursued. Mr. Bertstein was required by Civil

Service rules to have, in his possession, a waiver of the “Step

II” hearing. Thus, respondent caused petitioner to be

remediless and petitioner was never afforded any independent

administrative review of his dismissal, despite his repeated

requests and his statutory right to such review.

Petitioner commenced this action on March 12, 1999.

His attorney at the time had not filed a timely EEOC

complaint. Petitioner then had to retain new counsel because

of a disciplinary action imposed upon his then counsel.

It was not until petitioner retained new counsel that, on

or about April 19, 2000, he filed a Charge of

Discrimination/Retaliation with the Equal Employment

Opportunity Commission (EEOC). This charge bore Charge

No. 160-AO-1745. On August 28, 2000, the EEOC issued a

“Dismissal and Notice of Rights” with reference to this

charge of discrimination/retaliation.

3 Interestingly, some of these people, including Mr.

DeCeasrio, during depositions, self-servingly stated that they had

nothing to do with petitioner’s dismissal.

18

Ee

An Amended Verified Complaint was served and filed

on or about October 3, 2000.

B. Proceedings Below

Petitioner brought this action against his former

employer, the New York City Department of Parks and

Recreation, alleging violations of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. §2000e, et seq.; 42

U.S.C. §1981; the New York State Human Rights Law and

the New York State Executive Law §296, et seq., under the

theory of race, religious and reprisal discrimination. More

specifically, petitioner alleges that respondent and its agents

engage. in a pattern of discriminatory and retaliatory actions

against him which culminated in his dismissal on December,

10, 1999.

After discovery was completed, respondent moved for

summary judgment on all of petitioner’s claims. Respondent

generally asserted that petitioner could not establish a prima

facie case with reference to his claim. More specifically, with

reference to petitioner’s race and religious claims, respondent

argued that petitioner could not establish that he suffered an

adverse employment action which occurred under

circumstances giving rise to an inference of discrimination.

With reference to petitioner’s reprisal claim, respondent

argued that petitioner could not show that respondent took

adverse employment actions against him and that there was a

causal connection between petitioner’s protected activity and

the adverse employment actions. In addition, respondent

argued that many of petitioner’s claims were time barred.

Petitioner duly opposed respondent’s motion.

Petitioner argued that he had sufficiently met all elements to

the establishment of a prima facie case under the relevant

19

Statutes, so as to establish that genuine issues of material fact

exist herein. Petitioner also asserted that all of his claims

were timely.

However, in its Order dated July 31, 2001 as

supplemented on the record on August 23, 2001, the District

Court granted respondent’s motion for summary judgment in

all respects. In doing so, the District Court adopted

respondent’s arguments and held (1) with respect to

petitioner’s Title VII claim, most of the events alleged were

barred by the applicable statute of limitations and the

“continuing violation” exception did not apply; (2) with

respect to petitioner’s Title VII race and religious claims,

petitioner did not show that he suffered an adverse

employment action under circumstances giving rise to an

inference of discrimination; (3) with respect to petitioner’s

reprisal claim, petitioner did not show that the employer took

adverse employment action against him and that there was a

causal connection between petitioner’s protected activity and

the adverse employment action; and (4) as a consequence,

petitioner’s theory under 42 U.S.C. §1981 must also fail.

In a Summary Order dated September 25, 2002, the

United States Court of Appeals for the Second Circuit

affirmed the Order of the District Court. In doing so, the

Court of Appeals held that (1) petitioner had not established

a continuing violation or hostile environment exception to the

300-day limitation period for filing discrimination claims with

the EEOC; (2) assuming that petitioner had established a

prima facie case of racial discrimination, respondent’s

proffered reasons for its actions were not pretextual nor was

its real motivation discrimination; and (3) there was

insufficient evidence for a reasonable trier of fact to conclude

that retaliation for protected activity motivated respondent’s

20

eS

actions and that (4) petitioner’s claim, pursuant to 42 U.S.C.

§1981, must also resultantly fall.*

This Petition for Writ of Certiorari follows because

several rulings in the Decision sought to be reviewed herein

must be reconciled by this Court.

_REASONS FOR GRANTING THE WRIT

1. The Court below Did Not Give Appropriate

Heed to this Court’s Decision in National

R.R. Passenger Corp. V. Morgan, _ U.S.

__, 122 S.Ct. 2061 (2002), Which Was

Decided During the Pendency of the Appeal

While this appeal was pending before the Court of

Appeals, this Court issued a ruling in National R.R.

Passenger Corp. v. Morgan, _ U.S. _,, 122 S.Ct. 2061

(2002). Petitioner respectfully submits that the court below

did not give appropriate consideration to the affect that this

holding has upon the instant case.

In National R.R. Passenger Corp. v. Morgan, supra.,

this Court held that an employee could recover on a hostile

work environment theory for acts occurring more than 300

days before a charge was filed with the EEOC. Rather than

holding that this rationale applied herein, the court below

determined that petitioner was time barred from introducing

any incidents which occurred more than 300 days prior to his

* For purposes of its discussion of petitioner’s retaliation

claim and because of its ruling with reference to the 300-day rule,

the Court of Appeals only considered petitioner’s transfer and

termination.

21

filing a charge with the EEOC because his allegations did not

State a claim for a hostile work environment. Therefore, the

court below concluded that only petitioner’s termination and

the July, 1999 transfer were actionable under Title VII.

In so ruling, petitioner respectfully submits that the

court below misapplied this Court’s rationale in National R.R.

Passenger Corp. v. Morgan, supra., as well as other holdings

by this Court. The court below concluded that actions which

impact an employee’s pay or benefits cannot be utilized to

support a hostile environment claim. In other words, the

court below seemed to conclude that adverse employment

actions cannot support a hostile work environment claim.

Petitioner respectfully submits that such a conclusion is too

expansive and should be reviewed, clarified and reconciled in

light of this Court’s previous holdings.

To sustain an allegation of hostile work environment

under Title VII, as well as 42 U.S.C. §1981, a claimant must

prove that a reasonable person would find the work

environment was “permeated with discretionary intimidation,

ridicule, and insult, that is sufficiently severe or pervasive to

alter the conditions of the victim’s employment.” Harris v.

Forklift Systems Inc, 510 U.S. 17 (1993). In making this

determination, all of the circumstances, including the

frequency of the discriminatory conduct, its severity, whether

it is physically threatening or humiliating, or a mere offensive

utterance, and whether it unreasonably interferes with an

employees work performance should be considered. Harris

at 23. Harris was further discussed by this Court in the

recent decision in National R.R. Passenger Corp. v. Morgan.

Petitioner submits that the court below took a too

narrow view of what constitutes a hostile environment. This

Court, in light of its prior decisions, should hold that conduct

22

A. °°.

which does impact an employee’s pay or benefits may be part

of a hostile work environment claim. This is especially true

since the court below held that some of the actions alleged by

petitioner did not impact his pay or benefits.> Had the court

below so concluded it would not have limited its discussion of

petitioner’s Title VII claims to the most recent acts.

The harassment, as discussed in the relevant facts, was

sufficiently pervasive and were acts of a nature which can

support a hostile work environment claim under this Court’s

precedents.

This Court should grant the within Petition in order to

review, Clarify and reconcile the court below’s decision in

light of its prior holdings. The issue of what constitutes a

hostile work environment, especially within the context of the

300-day rule, should be reviewed by this Court. Upon such

review, this Court must reverse the court below.

2. The Finding of the Court below That

Petitioner Offered Insufficient Evidence to

Allow a Reasonable Fact Finder to Conclude

That Respondent’s Proffered Reasons Were

Pretextual and its Real Motive

Discrimination, upon the Motion for

Summary Judgment, Was Inconsistent with

Decisions of this Court

This Court set forth the standards for the order and

allocation of proof in an employment discrimination case in

5 The District Court even took a more narrow view,

holding that petitioner had failed to show any adverse employment

actions.

23

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

Under these standards, a plaintiff has the initial burden of

establishing a prima facie case. If a prima facie case is

established, then the burden of production shifts to the

defendant to articulate a legitimate, nondiscriminatory reason

for its adverse employment decision. Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

The plaintiff then has the ultimate burden of demonstrating by

a preponderance of the evidence that the defendant’s proffered

reason was merely a pre-textual mask for discrimination. St.

Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).

In its consideration, the court below assumed that

petitioner established a prima facie case of race

discrimination. However, the court, within the context of

summary judgment, concluded that petitioner “has offered

insufficient evidence to allow a reasonable fact finder to

conclude that [respondent’s] proffered reasons were pretextual

and its real motive discrimination.” [Pet. App. 8a]

Petitioner respectfully submits that, based upon the

record herein as discussed in the relevant facts, the court

below misapplied the principles established by this Court with

reference to summary judgment.

This Court has enunciated the standard for summary ~

judgment which must be applied many times. Under this

standard, a motion for summary judgment may not be granted

unless the court determines that there is no genuine issue of

material fact to be tried and that the facts as to which there is

no such issue warrant judgment for the moving party as a

matter of law. See, e.g., Fed.R.Civ.P. 56(c); see generally

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The

burden of showing that no genuine factual dispute exists rests

on the party seeking summary judgment, see, e.g., Adickes v.

24

S.H. Kress & Co., 398 U.S. 144, 157 (1970), and in

assessing the record to determine whether there is a genuine

issue as to any material fact, the court is required to resolve

all ambiguities and draw all factual inferences in favor of the

party against whom summary judgment is sought, see, e.g.,

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

The inferences to be drawn from the underlying facts revealed

in materials such as affidavits, exhibits, interrogatory answers

and depositions must be viewed in the light most favorable to

the party opposing the motion. See, e.g., United States v.

Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).

The Court’s attention is directed to the relevant facts

herein which petitioner respectfully submits offers sufficient

evidence to allow a reasonable fact finder to conclude that

respondent’s proffered reasons were pretextual and its real

motivation, discrimination. That discussion reveals that

petitioner was singled out for the treatment that he suffered.

Each and every act undertaken against hisn seemed to be as

the result of disparate treatment and conduct which was not

the ordinary course.

For example, Respondent did not act pursuant to its

normal practice and procedure when it (1) retaliated against

Petitioner because he refused to resolve his alleged positive

test for cocaine; (2) refused to step-up Petitioner, despite

stepping-up others who had also failed drug tests; (3) denied

Petitioner permits to conduct special events; (4) docked

Petitioner’s pay, despite having appropriate medical

documentation; (5) altered Petitioner’s work schedule; (6) had

a third line supervisor change a performance appraisal; (7)

issued supervisory conferences where the supervisor did not

witness the subject matter of the supervisor’s conference; (8)

assigned Petitioner to-Stroud Playground during winter

months without heat or water; (9) assigned Petitioner to

25

Stroud Playground, despite an EEO Officer’s directive that

Petitioner not be sent back there; (10) required Petitioner to

clean Mt. Prospect Park after an event by himself, despite

policy that more than one employee is to be so assigned; and

(11) not affording Petitioner a hearing to contest his

termination.

There should be no question, therefore, that, with

reference to petitioner’s race discrimination claim, the court

below misapplied this Court’s prior holdings when it (1) failed

to draw all available inferences and resolve all ambiguities in

favor of petitioner; (2) held petitioner to an evidentiary

standard, which is more appropriate for trial, not summary

judgment; (3) resolved factual issues rather than merely

identifying them; and (4) failed to consider the evidence in the

light most favorable to petitioner.

3. The Finding of the Court below That There

Was Insufficient Evidence for a Reasonable

Trier of Fact to Conclude That Retaliation

for Protected Activity Motivated Actions

Against Petitioner, upon the Motion for

Summary Judgment, Was Inconsistent with

Decisions of this Court

As the court below noted, “A plaintiff in a Title VII

retaliation claim must demonstrate, for the purposes of a

prima facie case, that: “(1) that [he] was engaged in a

protected activity by opposing a practice made unlawful by

Title VII; (2) that the employer was aware of that activity; (3)

that [he] suffered adverse employment action; and (4) that

there was a causal connection between the protected activity

and the adverse action.” Holtz v. Rockefeller & Co., 258

F.3d 62, 79 (2d Cir. 2001); Pet. App. 9a. The court below

held that “there is insufficient evidence for a reasonable trier

26

of fact to conclude that retaliation for protected activity

motivated [petitioner’s] transfer or his termination. ”°

Contrary to the holding of the court below and based

upon the record, as discussed in the relevant facts herein,

petitioner did sufficiently establish, for purposes of summary

judgment, that respondent acted with discriminatory or

retaliatory motives. Petitioner filed several EEO complaints

over a lengthy period of time. Each time he complained, his

complaints were met by increased retaliation. Petitioner

should have had an opportunity to prove his claim at trial.’

This Court should grant the within Petition in order to

review, Clarify and reconcile the court below’s decision with

the standards that this Court has established with reference to

summary judgment.

® Because of its prior ruling, with reference to the 300-day

rule, the court below only considered petitioner’s retaliation claim

based upon his transfer and termination.

’ The court below also dismissed petitioner’s claim under

42 U.S.C. §1981. In doing so, the court below noted that the same

elements that constitute a claim of employment discrimination under

42 U.S.C. §2000e apply to a claim under 42 U.S.C. §1981.

Petitioner respectfully asserts that should this Court reverse the

court below with reference to his Title VII claim, then similar

action should be taken with reference to plaintiff's claim under

§1981.

27

CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

WOLIN & WOLIN, ESQS.

By: Alan E. Wolin, Esq.

Attorney for Petitioner

420 Jericho Turnpike, #215

Jericho, New York 11753

Telephone: (516) 938-1199

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 01-9114

[Filed September 25, 2002]

SHATIEK ALLAH,

Plaintiff-Appellant,

V.

CITY OF NEW YORK

DEPARTMENT OF PARKS &

RECREATION,

Defendant-Appellee.

me ee eee ee”

Appeal from the United States District Court

for the Southern District of New York (Marrero, J.)

JUDGES:

Present: Pierre N. Leval, Guido Calabresi, Rosemary S.

Pooler, Circuit Judges.

SUMMARY ORDER

ON CONSIDERATION WHEREOF, IT IS

HEREBY ORDERED, ADJUDGED, AND DECREED that

la

Second Circuit Summary Order - 9/25/02

the order of said District Court be and it hereby is

AFFIRMED.

Plaintiff Shatiek Allah appeals from an order of the

United States District Court for the Southern District of New

York (Victor Marrero, District Judge) that dismissed,

pursuant to Federal Rule of Civil Procedure 56, Allah’s

employment discrimination complaint against his former

employer the New York City Department of Parks and

Recreation (“Parks”).

Allah, who is African-American and adheres to the

Five Percenter religion, worked for Parks from May 1985

until his termination on December 10, 1999.

On March 12, 1999, Allah filed a civil rights

complaint against Parks in which he made claims of racial and

religious discrimination pursuant to 42 U.S.C. § 1981 and

the New York Human Rights Law. The actions of which

Allah complained began on October 30, 1996, when a

representative of Parks threatened him with arrest while

questioning him concerning the arrest of another Parks

employee. Allah also complained of other incidents including

(1) a 1997 disciplinary proceeding in which Allah was

convicted of several charges including use of cocaine,

excessive absences, and failure to promptly notify Parks of an

arrest; and was disciplined by loss of pay and vacation days;

(2) repeated instances in which Parks docked Allah’s pay for

absences; (3) a change in schedule that prevented Allah from

taking care of personal business without taking a vacation or

personal day; (4) denial of permits for activities Allah wished

to conduct in the parks; (5) a change for the worse in Allah’s

2a

:

i

‘

Second Circuit Summary Order - 9/25/02

1996 performance evaluation after Allah signed it; and (6)

Parks’ failure to adequately investigate Allah’s complaints.

On December 10, 1999, Parks fired Allah based on its

findings that he struck and intimidated a supervisor, used

obscene language with that supervisor, failed to obey the

lawful order of another supervisor, engaged in disruptive

conduct, was late on excessive occasions, and neglected

assigned duties. Allah filed a complaint with the United States

Equal Employment Opportunity Commission (“EEOC”) on

May 4, 2000. He claimed that Parks discriminated against

him based on race and religion and retaliated against him for

protected activities including his filing of the federal court

complaint and a myriad of internal complaints. In addition to

alleging that his termination was discriminatory and

retaliatory, Allah complained of all the conduct set out in his

federal court complaint. He also added new incidents of

allegedly discriminatory and retaliatory conduct: (1) in March

1999, he was counseled in a supervisory conference despite

the fact that the supervisor who counseled him had not

observed the conduct at issue and (2) Parks twice assigned

him to the Elijah Stroud playground despite supervisors’

knowledge that the playground would be dangerous for Allah

and, on one occasion, that it lacked heat and hot water.

On August 28, 2000, EEOC dismissed Allah’s

complaint and notified him of his right to sue. Allah then filed

an amended complaint adding his new factual allegations and

making a Title VII claim.

The district court granted Parks’ motion for summary

judgment. Judge Marrero first found that all of Allah’s Title

VII claims except those occurring after June 24, 1999, were

3a

Second Circuit Summary Order - 9/25/02

barred by the statute of limitations for filing a complaint with

the EEOC. See Allah v. City of New York Dep’t of Parks &

Recreation, 162 F. Supp. 2d 270, 273 (S.D.N.Y. 2001). As

to any remaining discrimination claims, the court found that

Allah failed to establish both that he had suffered an adverse

employment action and that the employment action in question

occurred under circumstances giving rise to an inference of

discrimination. /d. The court also dismissed Allah’s Section

1981 discrimination claims because of Allah’s failure to offer

proof from which a reasonable jury could find an adverse

employment action or could infer discrimination. /d. at 274.

Finally, Judge Marrero dismissed the retaliation claim,

finding that Allah did not offer sufficient evidence of a causal

connection between his protected activity and subsequent

employment actions. Jd. at 274.

Allah appeals, arguing principally that the court erred

by (1) failing to give him the benefit of the continuing

violation or hostile environment exceptions to the 300 day

limitation period for filing discrimination claims with the

EEOC, (2) finding no adverse employment action or

circumstances permitting an inference of discrimination, and

(3) rejecting his retaliation claim. Parks both defends the

district court’s reasoning and contends that because Allah

filed no complaint with the New York State Division of

Human Rights (“DHR”), he had only 180 days to file his

complaint with the EEOC.

For our purposes, we assume that Allah had a full 300

days in which to file his EEOC complaint. Therefore, unless

Allah can establish a continuing violation or hostile

environment exception to the 300-day statute of limitations,

he has no Title VII claim for conduct occurring before late

4a

Second Circuit Summary Order - 9/25/02

June 1999, making only his termination claim and his claim

that Parks discriminated against him by transferring him to a

dangerous playground in July 1999 actionable under Title VII.

He can establish neither.

Assuming that this circuit’s test for a continuing

violation exception remains valid,’ Allah failed to make the

required showing of either “discrete incidents of

discrimination [that] are specifically related and are allowed

to continue unremedied for so long as to amount to a

discriminatory policy or practice” or of an actual

discriminatory practice such as the use of a discriminatory

employment test. Lightfoot v. Union Carbide Corp., 110

F.3d 898, 907 (2d Cir. 1997) (internal quotation marks

omitted). Because Allah alleges many different types of

actions that were committed by different supervisors and that

bear no clear relationship to each other or to the only acts

within the 300-day period, he does not allege a continuing

violation.

Nor do Allah’s allegations describe a_ hostile

environment. Allah complains both of acts that had a tangible

effect on his employment, e.g. transfers to unattractive

environments, termination, loss of pay, loss of vacation,

changes in an evaluation, and of acts that on their face have

' A recent Supreme Court’s decision casts some doubt on

the continued existence of a continuing violation exception if the

continuing violation does not create a hostile environment. See

National R.R. Passenger Corp. v. Morgan, 153 L. Ed. 2D 106, 122

S. Ct. 2061, 2072 (2002) (holding that “discrete discriminatory acts

are not actionable if time barred, even where they are related to acts

alleged in timely filed charges”).

Sa

Second Circuit Summary Order - 9/25/02

nothing to do with his employment, e.g. denials of permits to

hold outside events. An actionable hostile environment claim,

on the other hand, must target conduct like racial taunting,

stereotyping, and intimidation that does not impact an

employee’s pay or benefits but nevertheless is so persistent

and severe that it alters “the conditions of the victim’s

employment and creates an abusive working environment.”

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-23, 126 L. Ed.

2d 295, 114 S. Ct. 367 (1993). Allah does not describe a

hostile environment. Consequently only his termination and

July transfer claims are actionable under Title VII.

However, Allah’s Section 1981 and Human Rights

Law claims both have three-year statutes of limitations. See

Mian v. Donaldson, Lufkin & Jenrette Secs., 7 F.3d 1085,

1087 (2d Cir. 1993) (Section 1981); Quinn v. Green Tree

Credit Corp., 159 F.3d 759, 765 (Human Rights Law).

Therefore, we must address the merits of all of Allah’s

discrimination claims.

This circuit analyzes Section 1981 and Human Rights

Law discrimination claims using the same analytic framework

that it uses for Title VII discrimination claims. See Whidbee

v. Garzarelli Food Specialties, 223 °.3d 62, 69 (2d Cir.

2000) (Section 1981); Tomka v. Seiler Corp., 66 F.3d 1295,

1305 n.4 (2d Cir. 1995). AHah must initially offer proof that,

among other things, the actions taken against him “occurred

in circumstances giving rise to an inference of

discrimination.” Chambers v. TRM Copy Centers Corp., 43

F.3d 29, 37 (2d Cir. 1994). Parks must then articulate non-

discriminatory reasons for the actions it has taken. If Parks

does so, plaintiff bears the “ultimate burden” of proving “that

the legitimate reasons offered by the defendant were not its

6a

Second Circuit Summary Order - 9/25/02

true reasons, but were a pretext for discrimination.” Roge v.

NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001)

(quoting Reeves v. Sanderson Plumbing Prods, Inc., 530 U.S.

133, 143, 147 L. Ed. 2d 105, 120 S. Ct. 2097 (2000)).

Plaintiff's prima facie case plus a showing of pretext may

defeat a properly supported summary judgment but will not

always do so. Lizardo v. Denny’s, Inc., 270 F.3d 94, 103

(2d Cir. 2001). Instead, the court must determine whether

plaintiff's proof could convince a reasonable fact-finder that

discrimination motivated his employer. /d. In making this

determination, the court should consider the strength of the

prima facie case, the proof that defendants’ explanation was

false, and any other probative proof in the record.

For purposes of this discussion, we assume that

plaintiff established a prima facie case of race discrimination,

albeit a very weak one.” The only evidence plaintiff offered

relevant to discriminatory intent was (1) there were no

African American supervisors at Parks; (2) none of the

individuals who acted against Allah were African American

2 We agree with the district court that certain of the acts

of which Allah complained, e.g. denial of permits to use a park for

outside activities, were not adverse employment actions. However,

certain acts, e.g. Allah’s termination, his loss of vacation and pay,

and the 1997 discipline, clearly were adverse employment actions.

We also assume that Allah’s July 1999 transfer to a dangerous and

uncomfortable playground was an adverse employment action.

Allah did not offer even a prima facie case of employment

discrimination based on religion because he described no

circumstances from which a reasonable fact finder could infer

religious discrimination.

Ta

Second Circuit Summary Order - 9/25/02

or Five Percenters; and (3) two other individuals whose urine

tests showed narcotics use and who were neither African

American nor Five Percenters were given temporary

promotions for summer supervisory positions but Allah,

whose urine test was positive for cocaine, was not. Allah

offered no information concerning the relative qualifications

of these employees, their seniority, the type of drug they

took, or whether they, like Allah, were convicted of offenses

in addition to the narcotics charge. In fact, the two, unlike

Allah, stipulated to their guilt, an opportunity Allah also was

offered but declined. Parks, on the other hand, offered

Significant evidence and not just plausible articulations for

most of the actions it took against Allah. For instance, to

justify Allah’s termination, Parks offered testimony from

three supervisors describing Allah’s verbally and physically

abusive conduct toward one of them. Allah offers almost no

evidence of pretext. For instance, he does not dispute that he

used obscene language with his supervisor, that the urine test

underlying the 1997 disciplinary action was positive, or that

he did not obey another supervisor’s order to clean the

perimeter of a park. We conclude that Allah has offered

insufficient evidence to allow a reasonable fact finder to

conclude that Parks’ proferred reasons were pretextual and its

real motive discrimination. Thus, we affirm the district

court’s dismissal of Allah’s discrimination claims.

Plaintiff claimed retaliation only pursuant to Title VII.

Therefore, we consider only his termination and transfer in

determining whether plaintiff provided sufficient proof from

which a reasonable jury could determine Parks retaliated

against him. Allah can make out a prima facie case of

retaliation under Title VII by showing “(1) that [he] was

engaged in a protected activity by opposing a practice made

8a

Second Circuit Summary Order - 9/25/02

unlawful by Title VII; (2) that the employer was aware of that

activity; (3) that [he] suffered adverse employment action; and

(4) that there was a causal connection between the protected

activity and the adverse action.” Holtz v. Rockefeller & Co.,

258 F.3d 62, 79 (2d Cir. 2001) (internal quotation marks

omitted). Assuming that Allah established that some of his

many complaints were protected activity, there is insufficient

evidence for a reasonable trier of fact to conclude that

retaliation for protected activity motivated Allah’s transfer or

his termination. The record depicts an employee who was

perceived by Parks as having (1) failed a urinalysis, (2)

refused to stipulate to the results of that urinalysis, (3) refused

to cooperate in an investigation of a fellow employee, (4) had

excessive absences, (5) disrupted a meeting, (6) disobeyed a

supervisor’s direct order, and (7) engaged in a physical and

verbal altercation with another supervisor. Therefore, the

district court did not err by dismissing Allah’s retaliation

claims.

FOR THE COURT:

ROSEANN B. MACKECHNIE, Clerk

By:

/s/

Lucille Carr

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

No. 99 Civ. 1834 (VM)

[Dated August 23, 2001]

SHATIEK ALLAH,

Plaintiff,

V.

CITY OF NEW YORK

DEPARTMENT OF

PARKS & RECREATION,

Defendant.

Nee Ne Nee Nee ae Se”

Before: HON. VICTOR MARRERO, District Judge

APPEARANCES

WOLIN & WOLIN

Attorneys for Plaintiff

BY: ALAN WOLIN

OFFICE OF THE CORPORATION COUNSEL

FOR THE CITY OF NEW YORK

BY: ISAAC KAUFMAN

Assistant Corporation Counsel

10a

TRANSCRIPT OF PROCEEDINGS

(Case called)

THE COURT: On July 31, 2001, the Court

issued an order granting defendant’s motion for summary

judgment dismissing the complaint in this matter. This matter

expands on and sets out the reasons for the Court’s earlier

decision.

In his amended complaint, plaintiff Shatiek Allah

asserted several claims pursuant to 42 U.S.C. Section 1981,

42 U.S.C. Section 2000e and New York State Law. In short,

Allah charges that he was subject to racial and religious

discrimination, as well as retaliation up to and including the

time he was terminated from his employment by the New

York City Parks Department. Allah points to a finite set of

discrete events to support his claims, which the Court will

review for purposes of this record.

Allah claims that, (1) he was wrongfully interrogated

by the park’s department advocate’s office conducting an

investigation in October 1996; (2) the parks department

wrongfully docked his pay and vacation ten times, beginning

shortly after the October 1996 investigation; (3) the parks

department unlawfully denied his applications for permits to

conduct special events on park property around February

1996; (4) the parks department improperly changed his work

schedule; (5) the parks department failed to properly

investigate his complaints to the Equal Opportunity

Commission, the EEOC; (6) his supervisors improperly

reassigned him to different parks facilities; (7) the parks

department unlawfully changed his evaluations; and (8) the

parks department unlawfully terminated his employment.

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Transcript Proceedings - 8/23/01

Allah presents there assertions in conclusory terms.

On this basis, Allah advances two causes of actions, which

essentially amount to four claims: (1) that he was subject to

racial and religious discrimination in violation of 42 U.S.C.

Section 2000e and New York State Executive Law Sections’

296 and 297; (2) that the parks department engaged in

unlawful retaliation on the impermissible grounds of race,

religion and exercise of his right to file a complaint before the

EEOC, in violation of 42 U.S.C. Section 2000e; (3) that, as

evidenced by the alleged events discussed earlier, he was

subjected to discrimination in the terms and conditions of his

employment on account of his race and religion in violation

of 42 U.S.C. Section 1981 and Section 290 of the Executive

Law of New York State; and (4) that he was discriminated

against on account of his prior criminal conviction in violation

of New York Human Rights Law.

The Second Circuit in Leopold v. Baccarat, Inc., 174

F.3d 261, declared that Claims under the New York Human

Rights Law are judged under the same standards of proof as

Title 7 claims. Therefore, this Court will analyze Allah’s state

claims here in tandem with his federal claims.

First is the claim of racial and religious discrimination.

With respect to the first claim, the Court finds that

most of the events that Allah alleges are barred by the

applicable statute of limitations. Under this circuit’s decision

in Tewksbury v. Ottoway Newspapers, events that occurred

prior to 300 calendar days before the filing of an EEOC

complaint are time-barred. Because Allah filed the operative

EEOC complaint on April 19, 2000, events that occurred

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more than 300 days before that date are precluded by the

Statute of limitations.

In an attempt to extend the statute of limitations, Allah

raises the “continuing violation” exception. However, in

order to show continuing violations, a plaintiff must advance

credible evidence of either a specific discriminatory practice

or policy or related instances of discrimination, unremedied _

for so long as to amount to a discriminatory practice or

policy. The Second Circuit reiterated these requirements in

Quinn v. Green Tree Credit Corp. The Court finds that

Allah's allegations and the evidence he offers to support them

are inadequate to establish a continuing violation under either

prong. It is insufficient to claim that one is a member of a

protected class and then assert that adverse events took place

because of race or religion. The record Allah constructs is

void of any evidence that the events he alleges were the result

of a discriminatory practice or policy. Rather, the events

appear to be routine matters in the ordinary course of the

parks department’s business, such as investigation into

employee misconduct and standard actions taken with respect

to an employce’s terms of employment. Therefore, the Court

finds that Allah’s claims of racial and religious discrimination

brought under 42 U.S.C. Section 2000e pertaining to events

occurring before June 24, 1999 are barred by the statute of

As for the balance of Allah’s charges of racial and

religious discrimination not barred by the statute of

limitations, they fail because he has not adequately stated a

prima facie case pursuant to 42 U.S.C. 2000e and New York

State Law. In Chambers v. TRM Copy Centers, 43 F.3d 29,

the court held that in order to make out a prima facie case

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Transcript Proceedings - 8/23/01

under 42 U.S.C. 2000e, the plaintiff must show, inter alia,

that (1) he suffered an adverse employment decision and (2)

the adverse employment decision occurred under

circumstances giving rise to an inference of discrimination

Allah has failed to establish both of these elements. The parks

department has presented substantial evidence that it had race

and religion neutral reasons for relocating Allah to a different

park and for ultimately terminating his employment. In

addition, Allah has not come forward with any credible or

substantial evidence to support an inference of racial

discrimination in the parks department’s actions. The parks

department, to the contrary, has advanced numerous

legitimate grounds for its actions.

Accordingly, the parks department motion for

summary judgment as to Allah’s claims of racial and religious

discrimination in violation of 42 U.S.C. Section 2000e and

New York State law is granted and those claims are

iotenal

Next is with regard to unlawful retaliation.

Allah’s second claim is that the parks department

engaged in unlawful retaliation by transferring him to a

different work locations and by terminating his employment

because of Allah’s filing of EEOC complaints, an admittedly

protected activity. This claim also fails because Allah has

failed to make out a prima facie case. The elements of a

prima facie case are well-settled in this circuit. In accordance

with Cosgrove v. Sears Roebuck & Co., 9 F.3d 1033, a

plaintiff mush show (1) that the employer took adverse action

against the plaintiff and (2) there was a causal connection

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between the plaintiff's protected activity and the adverse

employment action.

With respect to Allah’s transfer to a different work

location, this Court concurs with recent precedent in this

circuit that a mere reassignment to a new location, without

more, Cannot constitute a materially adverse change in the

terms and conditions of Allah’s employment.

Regarding his termination, Allah has failed to carry

his burden on the fourth element, namely, showing a causal

connection between he protected activity and the adverse

employment action. To establish that causal connection, the

Second Circuit’s decision in Sumner v. United States Postal

Service, held that a plaintiff must show either discriminatory

treatmeni subsequent to the protected activity or evidence of

retaliatory animus. The factual record here, however,

demonstrates nothing more than legitimate termination

proceedings brought on by Allah’s own disruptive behavior at

work. Allah has not established that the proceedings were

discriminatory or animated by retaliatory motives.

On this basis, the parks department’s motion for

summary judgment is granted as to Allah’s unlawful

retaliation claim.

For the same reasons, Allah’s claim of unlawful

discrimination in the terms and conditions of his employment

must also fail. In Choudhury v. Polytechnic Institute of New

York, this circuit held that the same elements that constitute a

claim of employment discrimination under 42 U.S.C. Section

2000e apply to claim under 42 U.S.C. Section 1981. Because

Allah has not demonstrated a materially adverse employment

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Transcript Proceedings - 8/23/01

action and a discriminatory or retaliatory animus, he has

failed to make out a prima facie case under 42 U.S.C. Section

1981.

Finally, Allah claims that he was discriminated against

on account of his prior criminal record in violation of the

New York City Human Rights Law. The record reflects,

however, that Allah’s only criminal conviction occurred 12

years after he was hired. Thus, at the time that he was hired,

Allah had no criminal record. The relevant case law makes

clear that New York Human Rights Law was intended to

protect applicants allegedly discriminated against at the time

of hiring on the basis of a prior criminal record. See Peluso

v. Smith, 540 N.Y.S.2d 631. Allah’s criminal record had no

bearing on his hiring, and furthermore, Allah has failed to

come forward with any meaningful evidence that his

termination had anything to do with his criminal record.

Thus, Allah is unable to establish discrimination pursuant to

Section 296 (15) of the New York State Human Rights Law.

For the foregoing reasons, the Court will issue an

order that the defendant’s motion for summary judgment is

granted and the complaint is dismissed and amending the

Court’s July 31, 2001 earlier order and closing the case.

Given the fact that this amended order will constitute

the operative order for purposes of appeal, should the parties

request, the Court will grant an extension of time in which an

appeal may be filed.

Thank you.

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MR. WOLIN: Your Honor, the judgment in this case

was entered on July 31 which does mean that the plaintiff, if

he wanted to appeal, would have until next week to file a

notice of appeal because I believe it is 30 days from the

judgment. So I do request that your Honor enter an order

extending the plaintiff's time within which to file a notice of

appeal, should he decide to do so, for a period commensurate

with the fact that your Honor first issued this detailed decision

today.

THE COURT: With this order I will direct that

the period for appeal shall be 30 days from the date of this

amended order.

All right. Thank you.

Mr. Kaufman, did you have anything to say?

MR. KAUFMAN: _ Just to say that the defendants

have no objection to Mr. Wolin’s request for a notice of

appeal.

THE COURT: All right. Thank you.

000

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APPENDIX C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

No. 99 CIVIL 1834 (VM)

DOC. # 29

[Filed July 31, 2001]

SHATIEK ALLAH,

Plaintiff,

against

THE CITY OF NY DEPT. OF

PARKS & RECREATION,

Defendant.

Nee Ne Nee eee ees “ee”

JUDGMENT

Defendant having moved for summary judgment

pursuant to Fed. R. Civ. P. 56, and the matter having come

before the Honorable Victor Marrero, United States District

Judge, and the Court, on July 31, 2001, having rendered its

Order granting defendant’s motion for summary judgment and

closing the case, it is,

ORDERED, ADJUDGED AND DECREED: That

for the reasons stated in the Court’s Order dated July 31,

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2001, defendant’s motion for summary judgment;

accordingly, the case is closed.

Dated: New York, New York

July 31, 2001

JAMES M. PARKISON

Clerk of Court

By: /s/

Deputy Clerk

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APPENDIX D

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

No. 99 CIV 1834 (VM)

[Filed July 31, 2001]

SHATIEK ALLAH,

Plaintiff,

against

THE CITY OF NY DEPT. OF

PARKS & RECREATION,

Defendant.

Nee Ne Ne eee eee

ORDER

VICTOR MARRERO, United States District Judge.

This Court, having reviewed the papers submitted in

support of and in opposition to defendant’s motion for

summary judgment, grants the motion. The Court finds that

(1) much of the claims of discrimination plaintiff Shatiek

Allah (“Allah”) asserts occurred more than 300 days prior to

his filing of an EEOC complaint and are thus time-barred and

(2) Allah has not made a prima facie showing to support the

claims set forth in his complaint. The Court’s analysis will be

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set forth in a detailed Decision to be forwarded to the parties

under separate cover.

CONCLUSION AND ORDER

Accordingly, it is hereby

ORDERED that the defendants’ summary judgment

motion is granted.

The Clerk of Court is directed to close this case.

SO ORDERED.

Dated: New York, New York

July 31, 2001

/s/

Victor Marrero

U.S.D.J.

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