Larry E. FEINGOLD, Plaintiff-Appellant,
v.
The State of NEW YORK, the New York State Department of Motor Vehicles, Leon Schulgasser, Kathleen A. Sullivan, Evelyn Waltrous, Sharon Lee-Sang, Fernando Tapia, Phyllis Isaacs, Other Administrative Law Judges and Employees, Defendants-Appellees.
Docket No. 02-7985.
United States Court of Appeals, Second Circuit.
Argued: April 24, 2003.
Decided: April 30, 2004.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Allegra L. Fishel, New York, New York, for Appellant.
Robert H. Easton, Assistant Solicitor General, for Eliot Spitzer, Attorney General of the State of New York (Marion R. Buchbinder, Assistant Solicitor General, on the brief), New York, New York, for Appellees.
Before: CALABRESI, F.I. PARKER,1 and SACK, Circuit Judges.
F.I. PARKER, Circuit Judge.
Plaintiff Larry E. Feingold ("Feingold" or "plaintiff") appeals from a decision and order of the United States District Court for the Southern District of New York (Jed S. Rakoff, J.) entered on July 31, 2002. Feingold alleged that while employed as an Administrative Law Judge ("ALJ") by the New York State Department of Motor Vehicles ("DMV") he was subjected to disparate treatment and a hostile work environment on the basis of race, religion, and sexual orientation, and was retaliated against for complaining of such discrimination. Feingold claimed that both the DMV and the State of New York (the "State") violated Title VII of the 1964 Civil Rights Act ("Title VII"), as amended, 42 U.S.C. §§ 2000e et seq., the New York City Human Rights Law, see N.Y.C. Admin. Code §§ 8-101 et seq. ("NYCHRL"), and 42 U.S.C. § 1983 ("Section 1983"). He also claimed that the named individual defendants in their individual capacities violated the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq. ("NYSHRL"), the NYCHRL, and Section 1983. The district court granted summary judgment to defendants on all of Feingold's claims.2 Feingold now appeals from that decision.3
For the reasons discussed below, we affirm in part and vacate and remand in part. We begin with a Table of Contents.
CONTENTS
I. Background
A. Factual Background
1. Conditions of Employment
2. Termination Decision and Alleged Precipitating Events
B. Feingold's Claims
C. District Court Decision
II. Discussion
A. Claims Against the DMV
1. Disparate Treatment Claims Against the DMV
a. Hostile Work Environment Claim Against the DMV
i. Evidence of a Hostile Work Environment
ii. Evidence to Impute Liability to the DMV
b. Discriminatory Workload and Discharge Claims
i. Prima Facie Case ii. Defendants' Explanation for Feingold's Firing
2. Retaliation Claim Against the DMV
a. Prima Facie Case
b. Defendants' Rationale
B. Claims Against the Individual Defendants
1. New York State Human Rights Law Claims
2. New York City Human Rights Law Claims
3. Section 1983 Claims Against the Individual Defendants
a. Equal Protection Claim
b. First Amendment Claim
C. Claims Against the State of New York
III. Conclusion
I. BACKGROUND
A. Factual Background
1. Conditions of Employment
Feingold, a white, Jewish, gay male, alleges he was discriminated against on the basis of race, religion, and sexual orientation, while employed for approximately eight months as an ALJ by the DMV. Feingold began work at the DMV's Manhattan North Office (the "MNO") of the Traffic Violations Bureau (the "TVB") on October 28, 1999. The senior ALJ supervising the office was Judge Kathleen Sullivan ("Sullivan"), a white, Christian, heterosexual female. The other ALJs in the MNO were Sharon Lee-Sang ("Lee-Sang"), a black, Christian, heterosexual female; Fernando Tapia ("Tapia"), a black, Christian, heterosexual male; Evelyn Waltrous ("Waltrous"), a black, Christian, heterosexual female; and William Sica ("Sica"), a white, non-Jewish, heterosexual male. Also working in the office was Phyllis Isaacs ("Isaacs"), the Chief Clerk, a black, Christian, heterosexual female. The overall supervising ALJ for all TVBs in the state was Leon Schulgasser ("Schulgasser"), a white, Jewish male who worked in the neighboring Brooklyn North Office.4
Feingold alleges that from the time he began working at the MNO, he was subjected to hostile treatment by his African-American colleagues because of his race, religion, and sexual orientation. The MNO's training method called for more experienced ALJs to provide informal guidance to new ALJs. Feingold avers that rather than providing such assistance, the three African-American ALJs largely ignored him, and were unhelpful and even antagonistic when approached for advice. In particular, he alleges that when he asked a question of Waltrous, who was assigned to train him, she snapped at him, "I ain't nobody's teacher." As a result, Feingold contends, within one week of beginning his job, he was adjudicating contested hearings with insufficient training. Feingold alleges that this treatment was significantly different from that of Pauline Haynes, an African-American ALJ hired in May 2000, who, according to the plaintiff, received both more substantial instruction and more time to train before hearing cases.
Once he began to hear cases, Feingold alleges, he was assigned a heavier caseload than the African-American ALJs. He asserts that the African-American judges routinely arrived at work late, took long lunches, left work early, and reassigned their cases to Feingold and Sica. According to Feingold, the African-American judges were never reprimanded for this behavior.
Feingold asserts that the MNO was permeated with anti-Semitic hostility. Feingold says that, rather than addressing him by his own name, Lee-Sang, Tapia, and Isaacs would call him by other "Jewish sounding" names, such as "Feinstein," "Goldstein," "Goldman," "Silverman," and "Feinberg," often in a negative tone. Feingold also alleges that persons having business with the DMV were regularly categorized by Lee-Sang as "Jewish" or "not Jewish;" that Lee-Sang frequently referred to him as Jewish; that she treated Jewish lawyers representing parties differently from non-Jewish lawyers, remarking at least once, "Can you believe it, I got me a Jewish lawyer. I didn't even know he was Jewish;" and that a comment made by Lee-Sang regarding a conference on Holocaust reparations also demonstrated her religious insensitivity.5 Feingold further alleges that in "nearly every" conversation that took place in his presence, Lee-Sang would say something about his religion or hers or tell stories about a Jewish person. According to Feingold, Lee-Sang also regularly proclaimed "Praise Jesus" and "Hallelujah," and asked other employees to join her in these affirmations. On such occasions, Feingold alleges that she would publicly inform him that he was excused from participating because he was Jewish. In addition, Feingold alleges that Waltrous commented negatively on Schulgasser's connections with other Jews, and that she described the food she ate at a work-related conference in the Catskills as "Jewish pig food." Feingold also asserts that Christian symbols were displayed in the office, including in public waiting areas, year-round.
Besides anti-Semitic hostility, Feingold contends that hostile attitudes toward homosexual persons pervaded the office. He alleges the words "fag" or "faggot" were used in his presence at least three times, that Sica advised him not to be "openly gay," and that Lee-Sang made at least three hostile references to his sexual orientation. In addition, he alleges that after he was terminated, he learned that a clerk referred to him as "that faggot judge" in the public area of the office.
Feingold asserts that he first complained about his treatment to a supervisor on May 24, 2000, when he told Schulgasser that he believed that he was experiencing discrimination on the basis of race, sexual orientation, and religion. When Feingold mentioned anti-Semitism, Schulgasser purportedly responded by asking "Judge Lee-Sang?", and offered Waltrous's name when plaintiff complained of racial discrimination. Feingold claims that Schulgasser admitted that Schulgasser himself had experienced anti-Semitism at the MNO, and that he advised Feingold to "sit tight" until a transfer could be arranged. Finally, Feingold alleges that, when the conversation concluded, Schulgasser indicated that he should keep quiet, saying, "Oh, and Larry, we never had that conversation, keep that in mind."
2. Termination Decision and Alleged Precipitating Events
On June 6, 2000, Feingold was in the hearing room preparing to adjudicate a contested traffic violation when he realized that he had left his judge's stamp in another room. He told the witnesses, a police officer and a motorist, to wait while he retrieved it. When he returned, the police officer was no longer present because the officer had decided to move his car.6 Upon discovering that the police officer had left without permission and, allegedly, after waiting several minutes, Feingold entered verdicts of "not guilty" on the charges against the next two motorists on the docket because both cases required testimony from the absent officer. Defendants claim that during this proceeding, Feingold stated "they need to be taught a lesson," indicating that the "not guilty" verdicts were designed to "teach" the police officer. However, in their statement of undisputed facts, defendants admit that Feingold only said "[t]hey have to be taught something," and Feingold's affidavit states that he was referring to motorists needing to learn to go outside the hearing room to pay their fines. Consistent with this explanation, the "purported transcript" of the hearing indicates that the statement occurred after Feingold instructed a motorist to "[g]o out to the cashier and say your name." After the hearing, Feingold went to the judge's library, the room where the ALJs in the MNO have their desks. A pane in the library's glass-paned door shattered after he let go of the door. The parties dispute whether the shattering was Feingold's fault.
Defendants allege that shortly after this incident, Feingold audibly remarked in the hearing room: "I don't give a shit. Let her write me up." Feingold does not admit he made the statement, and we note that we were unable to detect this utterance on the rather muffled portion of the audio disk provided to this Court. However, the statement clearly appears in the "purported transcript" of the hearing provided in the parties' joint appendix.
On June 7, after being informed by a clerk of the events of June 6 and after listening to at least part of the recording of the relevant hearing, Sullivan conferred with Schulgasser and the two tentatively decided to recommend Feingold's dismissal. Later that day, Feingold twice telephoned Schulgasser, once to explain his version of the glass pane event and to state that he no longer felt he could tolerate working at the MNO, and once specifically to discuss his concern about discrimination on the basis of race, religion, and sexual orientation at the MNO. According to Feingold's affidavit, Schulgasser responded that if Feingold did not like working in the MNO, he should leave. Schulgasser then spoke with Sullivan about Feingold's complaint of unlawful discrimination. Sullivan apparently understood that Feingold had accused her of being "out to get him."
The district court stated that, at this point, Sullivan immediately recused herself from further involvement in Feingold's termination. However, both parties agree that after the supposed "recusal," Sullivan communicated her version of the June 6 events to DMV Assistant Commissioner Lucia Ferrara, who was Schulgasser's immediate supervisor. Moreover, Feingold alleges that Sullivan's version of the events was false and that Sullivan knew it to be untrue.
Schulgasser also contacted Ferrara on June 7 to express the view that Feingold's June 6 conduct warranted termination. Defendants admit that based on both Schulgasser's and Sullivan's recommendations, Ferrara ultimately recommended Feingold's termination to Gail Conklin, the DMV's Director of Personnel and the only person named in this opinion thus far who had the power to terminate Feingold.7
Less than a week later, on June 12, Schulgasser met with Feingold and told him that his conduct on June 6 was very serious and that Schulgasser was recommending Feingold's termination. Feingold responded by complaining of illegal discrimination. The next day, June 13, 2000, Feingold was formally terminated by a letter from Conklin which Sullivan delivered to Feingold. Conklin testified at her deposition that when deciding whether or not to terminate Feingold, she considered, among other things, Sullivan's and Ferrara's recommendations. Feingold attests that prior to the termination he was never given an opportunity to explain the June 6 "not guilty" determinations, or to discuss with DMV officials the discrimination complaints he had made to Schulgasser. Feingold's position was subsequently filled by a Christian, heterosexual, African-American woman.
B. Feingold's Claims
On April 23, 2001, Feingold filed the present complaint. He sued each of the named individual defendants8 in both their official and individual capacities, the DMV, and the State, alleging that the State was "responsible for the practices, policies, and customs of the DMV, as well as the hiring, screening, training, supervising, controlling and disciplining of those persons employed by the DMV." His complaint alleged that the defendants had violated his First Amendment rights, his constitutional right to equal protection of the laws, Title VII, the NYSHRL, and the NYCHRL, and requested both money damages and injunctive relief. Although the caption of this case lists "other Administrative Law Judges and employees" as defendants, the roster of parties in Feingold's complaint does not include any such unnamed individuals.
On August 20, 2001, Feingold entered into a stipulated agreement with the defendants to withdraw with prejudice all Section 1983 claims for money damages against the defendants in their official capacities, all Title VII claims against the named individual defendants, and all claims under the NYSHRL against the DMV, the State, and the named individual defendants in their official capacities.
Subsequently, at oral argument before the district court on February 6, 2002, Feingold agreed to dismiss all claims for money damages against the DMV, the State, and the individual defendants in their official capacities. In addition, he agreed that his First Amendment claims against Lee-Sang, Isaacs, Tapia, and Waltrous could not stand. Feingold's counsel also clarified that the plaintiff did not claim that the alleged discrimination on the basis of sexual orientation violated Title VII.
C. District Court Decision
The district court granted summary judgment to defendants on Feingold's claim that his termination was discriminatory. It held that the plaintiff had "failed to offer any competent evidence to rebut defendants' substantial showing that [Feingold's] termination was the result [of] independent, non-discriminatory events." The district court also found that defendants had stated a non-discriminatory reason for Feingold's termination and that Feingold had not provided sufficient evidence to show that that reason was a pretext for unlawful discrimination. The district court reasoned that regardless of why Feingold entered the "Not Guilty" verdicts on June 6, his immediate supervisors saw these decisions as a "serious dereliction" of his duty. The district court determined that the only defendants who had had a material role in Feingold's termination were Sullivan and Schulgasser and that, since Sullivan "immediately recused herself," "the decision to terminate [Feingold] was made by Judge Schulgasser, who, like [Feingold], is a white Jewish male."
The district court also rejected Feingold's claim that defendants had discriminated against him in the assignment of work. It characterized this allegation as "purely conclusory" and found that Feingold's proffered evidence indicated that his relatively heavy workload was the result of the tardiness of the other judges and the consequent reassignment of cases to less senior ALJs rather than of discrimination. Similarly, the court rejected Feingold's claim that he was subjected to a hostile work environment on account of race, religion, and sexual orientation. It concluded that the fact that "[his] African-American colleagues did not like him or even chose to ignore him in social contexts" was not sufficient to make out a claim on the basis of race; that the "sporadic and indirect slurs on homosexuality" were not sufficiently severe or pervasive to support a hostile work environment claim; and that there was no competent evidence that the alleged anti-Semitic remarks unreasonably interfered with Feingold's work. In addition, the district court rejected Feingold's claim of retaliation. The court concluded that the plaintiff failed to offer evidence to rebut Schulgasser's showing that Feingold's misconduct underlay Schulgasser's decision to terminate him. Further, the court found that Sullivan was unaware of Feingold's complaint until June 7, 2000, at which point she immediately recused herself from the termination decisionmaking process. Finally, the district court granted summary judgment to defendants "as to all of the remaining claims" and dismissed the case with prejudice.
Feingold now appeals, claiming that the district court erred in granting summary judgment to defendants.
II. DISCUSSION
This court reviews grants of summary judgment de novo. Scaria v. Rubin,
A. Claims Against the DMV
Feingold seeks injunctive relief from the DMV under Title VII and Section 1983, and both injunctive and monetary relief from the DMV under the NYCHRL. As a preliminary matter, we find that his Section 1983 claim is clearly barred by the Eleventh Amendment because the DMV is a state agency. See Quern v. Jordan,
Similarly, we find that the claim against the DMV brought pursuant to the NYCHRL is also barred by state sovereign immunity. The City of New York does not have the power to abrogate the immunity of the State, and we have found no evidence that the State has consented to suit in federal court under the NYCHRL. See Campbell v. City Univ. Constr. Fund,
Accordingly, we now turn to Feingold's claims under Title VII.
1. Disparate Treatment Claims Against the DMV
A plaintiff may establish a claim of disparate treatment under Title VII either (1) by showing that he has suffered an adverse job action under circumstances giving rise to an inference of discrimination on the basis of race, color, religion, sex, or national origin, or (2) by demonstrating that harassment on one or more of these bases amounted to a hostile work environment. See Raniola v. Bratton,
a. Hostile Work Environment Claim Against the DMV
In order to prevail on a hostile work environment claim, a plaintiff must first show that "the harassment was `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment....'" Alfano v. Costello,
(i) Evidence of a Hostile Work Environment
Proving the existence of a hostile work environment involves showing both "objective and subjective elements: the misconduct shown must be `severe or pervasive enough to create an objectively hostile or abusive work environment,' and the victim must also subjectively perceive that environment to be abusive." Id. at 374 (quoting Harris v. Forklift Sys., Inc.,
As we recently explained:
While the standard for establishing a hostile work environment is high, we have repeatedly cautioned against setting the bar too high, noting that "[w]hile a mild, isolated incident does not make a work environment hostile, the test is whether `the harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.'" (alteration and emphasis in the original).
Terry v. Ashcroft,
Feingold has offered proof sufficient to allow a fact-finder to conclude that he experienced pervasive discriminatory intimidation, ridicule, and insult because he was Jewish. Feingold alleges that anti-Semitic remarks (such as the mocking of his name using other "Jewish-sounding" names, and comments about Jewish lawyers) were routine,9 and that Feingold was singled out by Lee-Sang on an "almost daily" basis on account of his religion. Feingold has produced evidence that is enough to support a finding that these remarks were not merely the result of religious consciousness, but rather stemmed from anti-Semitic hostility. Several ALJs allegedly made comments demonstrating overt animosity (e.g., Lee-Sang asking "What's wrong with these [Jewish] people?" and Waltrous speaking of "Jewish pig food"). Moreover, Feingold contends that defendant Schulgasser admitted to Feingold that he had been aware of anti-Semitism in the office for years.
Feingold's evidence is also sufficient to permit the conclusion that a reasonable employee in his position would have experienced the conditions of his employment as altered for the worse. Feingold alleges that his colleagues' hostility prevented him from receiving proper training. As both parties agree, since no formal instruction was provided to new ALJs, such ALJs relied on more experienced ALJs to provide peer training. Feingold claims that although he did undergo one or two days of observation by senior ALJs, Waltrous, who was assigned to train him, was "hostile" and "belligerent" and "snapped at him, `I ain't nobody's teacher," when he requested assistance. He further contends that he received no feedback or guidance from the other permanent ALJs. By contrast, he asserts that Pauline Haynes, an African-American, heterosexual, Christian ALJ, who was hired in May 2000, received extensive training and mentoring from all three permanent ALJs and was given a longer period of time to prepare before hearing cases. Of course, Feingold's colleagues may have decided not to train him not because of religion-based animus, but rather because they disliked Feingold as an individual, or because of some other motivation not prohibited by anti-discrimination law. Similarly, they may have given Haynes especially good training because they liked her as an individual, irrespective of her racial and religious background. These are the types of factual questions, however, that must be resolved by a jury, rather than by a court at summary judgment.
In addition, on the evidence Feingold presented, a rational fact-finder could conclude that Feingold subjectively experienced a hostile work environment. Feingold declares in his affidavit that the hostile treatment took a psychological toll on him, causing him to become depressed, to dread going to work, to seek a transfer, and to lose his desire to socialize with people in general.10
Feingold's evidence of a religion-based hostile work environment is enough to state a prima facie case of disparate treatment. And, while Feingold has not alleged sufficient facts to make out a hostile work environment claim based solely on race, his allegations of racial animosity can nevertheless be considered by a trier-of-fact when evaluating Feingold's religion-based claim. See Cruz v. Coach Stores, Inc.,
(ii) Evidence to Impute Liability to the DMV
Even if a trier-of-fact were to conclude that Feingold experienced a hostile work environment, the DMV would not be liable unless "a specific basis exist[ed] for imputing the objectionable conduct" to the DMV. Alfano,
b. Discriminatory Workload and Discharge Claims
Feingold may also establish a prima facie case of Title VII disparate treatment by showing 1) that he belonged to a protected class; 2) that he was qualified for the position he held; 3) that he suffered an adverse employment action; and 4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. See Collins v. New York City Transit Auth.,
Once a plaintiff has made out a prima facie case, the employer is required to offer a legitimate, nondiscriminatory business rationale for its conduct. See McDonnell Douglas Corp. v. Green,
(i) Prima Facie Case
Feingold clearly has established the first three elements of a prima facie case for disparate treatment in violation of Title VII. First, he is a member of a protected category, having alleged discrimination on the basis of race and religion. Second, Feingold undisputedly was qualified for the ALJ position, as he had in fact been hired for that position. Third, Feingold's allegations, if true, would show that he experienced two adverse employment actions: the assignment of a disproportionately heavy workload, and termination.
Feingold has also shown that he was subjected to an excessive workload and eventually terminated under circumstances giving rise to an inference of discrimination. Viewing the facts in the light most favorable to Feingold, a reasonable trier-of-fact could infer that Feingold and his white colleague, Sica, were assigned a heavier docket of cases as a result of discriminatory intent. Feingold swore under penalty of perjury that, in Sullivan's absence, Waltrous served as "Acting Senior Judge," and that in that capacity she regularly reassigned cases to the white ALJs that had originally been allocated to the three African-American ALJs. Feingold also attested that Isaacs, who was officially responsible for adjusting assignments, regularly reshuffled them to give white ALJs more work than their African-American counterparts. If a trier-of-fact credited these allegations, it could conclude that Feingold was subjected to disparate treatment under circumstances giving rise to an inference of racial discrimination.
The circumstances surrounding Feingold's discharge are also sufficient to support an inference that he was terminated on the basis of his religion and/or race. First, Feingold has presented enough evidence to support the conclusion that, even assuming the impropriety of Feingold's two not-guilty adjudications, ALJs who were not white and Jewish would not have been fired for such decisions, and indeed, were not penalized when they behaved similarly.11 Specifically, Feingold asserts that Lee-Sang once dismissed an entire calendar of cases because the prosecuting police officer left the hearing room without her permission, and that on another occasion, Tapia dismissed the remainder of his calendar for the day because he was tired. Feingold alleges that neither ALJ was disciplined for these actions.
Defendants argue that even if Feingold's allegations are true, the failure to discipline other ALJs who adjudicated cases improperly does not support an inference of discrimination. Defendants contend that those ALJs were permanent employees, whereas Feingold was merely a probationary employee; therefore Feingold was not "similarly situated" to Lee-Sang and Tapia.12 We disagree. It is true that, as a probationary ALJ, Feingold was not similarly situated to the other ALJs with respect to the conditions under which he could be terminated, and thus the mere fact that he was fired for his adjudications, while they were not, would not by itself support an inference of discrimination. However, evidence that African-American ALJs were not disciplined at all for their allegedly erroneous adjudications — and, indeed, that in at least one case such an adjudication was actually condoned by Sullivan — does support the conclusion that a discriminatory motive underlay Feingold's dismissal.
Defendants also argue that the other ALJs were not similarly situated to plaintiff because the individuals terminating Feingold believed that his two improper adjudications were followed by other inappropriate behavior, including breaking a glass door and audibly swearing in the hearing room. This conclusion, however, is disputed. Feingold argues that: 1) Sullivan never heard his alleged swearing; 2) the allegations of profanity were never relayed to the final decision-maker and therefore were not a basis for his termination; and 3) even if he swore (which he does not admit), he would have done so only out of frustration after Sullivan falsely accused him of intentionally breaking the glass door. In addition, the record includes a statement from Conklin that the glass pane incident alone would not have been sufficient to justify termination. Accordingly, we find that whether or not the non-disciplined ALJs were similarly situated is a matter of factual dispute which is best resolved by a finder-of-fact, and not on summary judgment. Cf. Mandell,
Second, Feingold has presented sufficient evidence to permit the conclusion that the two "not guilty" adjudications for which he allegedly was fired were in fact consistent with the instructions given by his supervisors. Feingold alleges that Schulgasser directed other ALJs to dismiss cases when a police officer leaves the hearing room. This assertion is corroborated by Sullivan's deposition testimony regarding Lee-Sang's dismissal of a number of cases on an occasion when a police officer quit the room. When Sullivan asked Lee-Sang about the incident, Lee-Sang replied that she had been instructed by Schulgasser to dismiss in such situations. Sullivan stated that she had "no doubt this is the case because I heard of other cases where this transpired." Sullivan also acknowledged that dismissal is a valid response when a police officer leaves a hearing room without permission, noting that Lee-Sang's behavior had been "appropriate" under the circumstances. While the facts surrounding the allegedly improper adjudication by Lee-Sang are somewhat different from those of Feingold's June 6 adjudications,13 a reasonable fact-finder could conclude that Feingold's failure to wait until the police officer returned before adjudicating the case could not, in itself, have been seen as improper by either Schulgasser or Sullivan. Feingold further alleges that Sullivan had instructed him not to use a "D — 5" (non-appearance) dismissal code when a police officer failed to appear, but rather to use an "N — 1" (not guilty) code to spare the officer trouble from his supervisors.14 If this allegation is true, it would indicate that at least Sullivan did not in fact disapprove of entering an "N — 1" code where a "D — 5" code was technically accurate. For all these reasons a jury could find that Feingold's behavior in entering the two "not guilty" results was consistent with the combined instructions of Schulgasser and Sullivan, and hence that his termination was grounded in discrimination.
In holding that an inference of discrimination is possible, moreover, we reject defendants' argument that because Sullivan and Schulgasser hired Feingold, an inference must be drawn against Feingold's claim that they recommended his termination for discriminatory reasons. Even if the "same actor inference" applies to Title VII claims,15 it would not necessarily apply here given the changes in circumstances during the course of Feingold's employment. Cf. Carlton v. Mystic Transp., Inc.,
We also reject the district court's suggestion that an inference of discrimination cannot be drawn because Feingold was fired by another Jew (Schulgasser). The Supreme Court has "rejected any conclusive presumption" that an employer or, presumably, his agents, will not discriminate against members of their own race or gender. Oncale,
(ii) Defendants' Explanation for Feingold's Firing
Defendants have offered a legitimate, non-discriminatory business rationale for terminating Feingold's employment. Specifically, defendants claim that Feingold was fired because his supervisors believed he had violated DMV policy when he adjudicated two motorists "not guilty" and had behaved inappropriately when he allegedly swore audibly in the hearing room and broke a glass door. Defendants contend that plaintiff's conduct bespoke a lack of judicial disposition, justifying termination. Defendants have also provided a putatively legitimate, non-discriminatory reason for Feingold's allegedly disproportionate workload. They explain that Feingold and Sica, the white ALJs, were less senior than the African-American ALJs, and assert that Feingold's sizable workload reflected his lack of seniority, not his race.17
These explanations need not, however, detain us long. For, as previously indicated, we find that Feingold has presented sufficient evidence for a reasonable trier-of-fact to conclude that defendants' stated reason for Feingold's termination was pretextual. First, as earlier discussed, a reasonable jury could conclude that in adjudicating the two motorists not guilty on June 6, Feingold was acting in accordance with the combined instructions of Sullivan and Schulgasser. Second, a reasonable fact-finder could determine that, even if Feingold's supervisors disapproved of his adjudications, defendants' proffered reason for Feingold's termination was pretextual since other ALJs were not reprimanded or disciplined for similar mistakes.18 As previously noted, a reasonable fact-finder could infer discriminatory motive by interpreting this failure to indicate that Feingold's June 6 adjudications did not truly excite the disapprobation of his supervisors.
In addition, defendants have provided no admissible evidence that new African-American ALJs (e.g., Pauline Haynes and Feingold's replacement) in the MNO also received disproportionately heavy workloads in comparison to the more senior ALJs, or that white ALJs with greater seniority would not have continued to bear greater workloads. By contrast, Feingold provides the sworn testimony of another ALJ that it is DMV policy that a probationary ALJ is not to carry a heavier load than a permanent ALJ. This evidence could permit a trier-of-fact to conclude that defendants' stated rationale for Feingold's heavy workload was pretextual, and that the workload was the result of unlawful discrimination.
In sum, the district court erred in granting summary judgment to the DMV on Feingold's disparate treatment claim.
2. Retaliation Claim Against the DMV
Feingold also claims that he was discharged in retaliation for his complaints of unlawful discrimination. He argues that given (1) the temporal proximity between his complaints to Schulgasser and his termination, and (2) the fact that Tapia and Lee-Sang were not disciplined for conduct that arguably was more serious than Feingold's actions on June 6, he has alleged facts sufficient to establish a retaliation claim.
a. Prima Facie Case
In order to "establish a prima facie case of retaliation, an employee must show `[1] participation in a protected activity known to the defendant; [2] an employment action disadvantaging the plaintiff; and [3] a causal connection between the protected activity and the adverse employment action.'" Quinn v. Green Tree Credit Corp.,
Feingold has satisfied all three requirements. First, when he complained to Schulgasser of unlawful discrimination on May 24, June 7, and June 12, Feingold participated in a protected activity. Second, he suffered an adverse employment action when he was fired. Third, the requirement that Feingold show a causal connection between his complaints and his termination is satisfied by the temporal proximity between the two. See Lovejoy-Wilson v. NOCO Motor Fuel, Inc.,
It is undisputed that two weeks after Feingold's first complaint to a supervisor, his supervisors agreed to recommend his termination. We reject defendants' contention that the events of June 6 constitute an intervening event that precludes drawing any inference of discrimination from temporal proximity. This argument presumes that the events of June 6 were the actual cause of Feingold's termination. But, whether or not they were is exactly what is factually in dispute in this case, and hence cannot be decided at summary judgment.
b. Defendants' Rationale
Since Feingold has stated a prima facie case of retaliation, the burden shifts to defendants to state a legitimate non-discriminatory reason for Feingold's termination. See Coffey v. Dobbs Int'l Servs., Inc.,
For the reasons discussed in Section II(A)(1)(b)(ii) of this opinion, we find that Feingold has produced sufficient evidence for a reasonable trier-of-fact to conclude that defendants' stated reason for his termination was a pretext for unlawful discrimination. Accordingly, the district court erred in granting summary judgment to the DMV on Feingold's retaliation claims under Title VII.
B. Claims Against the Individual Defendants
Feingold asserts that the individual defendants are liable under the NYSHRL, the NYCHRL, and Section 1983 in their individual capacities. As a preliminary matter, we note that Feingold has presented neither any argument nor any evidence that the unnamed "other administrative law judges and employees" listed in the caption engaged in illegal conduct for which they are liable. Accordingly, we affirm the district court's decision insofar as it granted summary judgment to those unnamed defendants, and turn to the claims against the named individual defendants.
1. New York State Human Rights Law Claims
Feingold alleges that the named individual defendants are liable in their individual capacities under the NYSHRL. The NYSHRL makes it unlawful for an employer to discriminate on the basis of, inter alia, race, creed, color, or sexual orientation. See N.Y. Exec. Law § 296. A supervisor is an "employer" for purposes of establishing liability under the NYSHRL if that supervisor "actually participates in the conduct giving rise to [the] discrimination." Tomka,
Here, Feingold has presented sufficient evidence to create a triable question as to whether each of the named individual defendants "actually participate[d]" in the conduct giving rise to Feingold's claim of unlawful discrimination in violation of the NYSHRL. Feingold has proffered enough evidence to permit the conclusions (a) that Lee-Sang, Tapia, and Waltrous all participated in creating a hostile work environment, (b) that Waltrous and Isaacs assigned him a disproportionate workload because of his race, and (c) that Sullivan and Schulgasser not only took no action to remedy such behavior although they were aware of it, but also terminated Feingold's employment on the basis of impermissible factors. Accordingly, the district court erred in granting summary judgment to the named individual defendants on Feingold's claims under the NYSHRL.
2. New York City Human Rights Law Claims
Feingold also claims that the named individual defendants are liable under the NYCHRL in their individual capacities. The NYCHRL makes it unlawful "[f]or an employer or an employee or agent thereof, because of the actual or perceived ... race, creed ... [or] sexual orientation ... 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(1)(a).
The same standards of analysis used to evaluate aiding and abetting claims under the NYSHRL apply to such claims under the NYCHRL because the language of the two laws is "virtually identical." Dunson v. Tri-Maintenance & Contractors, Inc.,
3. Section 1983 Claims Against the Individual Defendants
Finally, Feingold appeals the district court's grant of summary judgment on his Section 1983 claims against the named individual defendants in their individual capacities. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins,
a. Equal Protection Claim
Feingold alleges that each of the named individual defendants is liable in his or her individual capacity under Section 1983 for violating Feingold's constitutional right to Equal Protection.
Once action under color of state law is established, Feingold's equal protection claim parallels his Title VII claim.20 The elements of one are generally the same as the elements of the other and the two must stand or fall together. See Annis v. County of Westchester,
A finding of "personal involvement of [the individual] defendants" in an alleged constitutional deprivation is a prerequisite to an award of damages under Section 1983. Provost v. City of Newburgh,
b. First Amendment Claim
Feingold alleges that Sullivan and Schulgasser violated his First Amendment rights by terminating him for complaining about discrimination in the MNO. A public employee claiming First Amendment retaliation must demonstrate that: "(1) his speech addressed a matter of public concern, (2) he suffered an adverse employment action, and (3) a causal connection existed between the speech and the adverse employment action, `so that it can be said that his speech was a motivating factor in the determination.'" Mandell,
The defendants contend that Feingold was not speaking on a matter of public concern because he spoke to matters that were personal in nature and related to his own situation. Feingold counters that he was also speaking about a matter of public concern because he reported wide-spread racism and anti-Semitism, inadequate training, and unjustified judicial delay in the MNO. He contends that these problems compromised the fairness of the MNO's hearings. While Feingold's alleged complaints were based on his personal experience, they also suggest that the fairness and impartiality of the MNO may have been compromised, and that the MNO suffered from delay due to the failure of other ALJs to work full days. These issues are clearly matters of public concern. Cf. id. at 382 (speech regarding, inter alia, a police department's anti-Semitism is speech on a matter of public concern). Accordingly, Feingold may proceed on his First Amendment claim against Sullivan and Schulgasser.
C. Claims Against the State of New York
On appeal, Feingold never mentions that he maintains claims against the State, nor does he provide any argument as to why the State should be held liable. We therefore find that Feingold has waived his remaining claims against the State. See Norton v. Sam's Club,
III. CONCLUSION
For the reasons stated above, we VACATE and REMAND the district court's grant of summary judgment to the DMV on Feingold's Title VII claims of disparate treatment, retaliation, and a hostile work environment based on religious animus. We AFFIRM the district court's grant of summary judgment to the DMV on Feingold's Section 1983 claim and on his NYCHRL claim. We VACATE and REMAND the district court's grant of summary judgment to the named individual defendants on Feingold's Section 1983, NYSHRL, and NYCHRL claims. Finally, we AFFIRM the district court's grant of summary judgment to the State and to the unnamed ALJs and employees on all claims against them. Pursuant to Federal Rule of Appellate Procedure 39(a)(4), costs of this appeal are awarded to the plaintiff.
Notes:
Notes
The Honorable Fred I. Parker, who was a member of this panel, passed away on August 12, 2003. Prior to his death, Judge Parker's chambers completed a substantial portion of the work on this case. Under the circumstances, and in his memory, we issue this opinion in his name
We note that the district court's summary of Feingold's claims did not list either the Section 1983 claim for injunctive relief against the DMV or those of Feingold's claims against the State which he did not agree to withdraw with prejudice. However, a review of Feingold's complaint, his stipulated agreement to dismiss portions of that complaint, and the transcript of the district court proceeding convince us that these claims were still part of Feingold's case at the time the district court rendered its decision
Feingold's briefs on appeal also state that the district court ruled on his claim against the DMV under the NYSHRL. However, in a stipulation dated August 20, 2001, Feingold agreed to withdraw that claim with prejudice and therefore it is not before us
Neither Sica's religious affiliation nor Schulgasser's sexual orientation are reflected in the record on appeal
According to plaintiff, Lee-Sang remarked that she "did not know what's wrong with these people" that they would hold a conference on a Sunday, when Christians attended church services
The parties dispute whether or not Feingold was aware of the reason for the officer's absence
Accordingly, the district court erred in its statement that "it is beyond genuine dispute that the decision to terminate [Feingold] was made by Judge Schulgasser...." Defendants admit that the person who recommended termination to the ultimate decision-maker was Ferrara, and that her recommendation was based both on Schulgasser and Sullivan's recommendations
The phrase "named individual defendants" refers to Schulgasser, Sullivan, Waltrous, Lee-Sang, Tapia and Isaacs, as distinguished from "other administrative law judges and employees" listed in the caption of this opinion
Compare Shabat v. Blue Cross Blue Shield of Rochester Area,
Defendants argue that Feingold did not in fact perceive the work environment as hostile because he stayed at the MNO rather than accepting a transfer to the Coney Island office that was offered to him. However, Feingold responds that such a transfer would have doubled or tripled his daily commute, that Schulgasser had told Feingold he could get him transferred out of the MNO (apparently indicating that another transfer was possible), that he was suspicious of the offer because it was his understanding that it was DMV policy not to transfer probationary employees, and that this offer was made relatively early in his appointment and therefore he still held out some hope that he could "conquer the biases of his colleagues and excel in his work" at the MNO. Accordingly, Feingold's failure to accept the Coney Island transfer does not compel the conclusion that Feingold failed to perceive the MNO environment to be hostile
We note that the conclusion that Feingold was fired on the basis of religion or race could also find support in the circumstantial evidence offered by Feingold that white and Jewish ALJs who began work at the MNO readily transferred or were terminated. For example, ALJ Robert Re observed in his affidavit that "[i]n the last several years, almost every Caucasian ALJ who has worked in the MNO has transferred out of that office, or has been terminated before their probation was over."
During the first year of his or her employment with the DMV, an ALJ is considered to be a "probationary ALJ."
There is some evidence in the record to suggest that Sullivan believed that dismissal, rather than a "not-guilty" adjudication, was the appropriate resolution in cases where a police officer left the room
Consistent with this explanation, the "purported transcript" of the hearing shows that when Feingold instructed the clerk in the hearing room to enter the "N — 6" designation, Feingold also stated "N-one. I won't get him in trouble."
We do not pass judgment on the extent to which this inference is either required or appropriate outside the Age Discrimination in Employment Act (ADEA) context in which it generally is applied
Technically speaking, Sullivan and Schulgasser did not hire Feingold, as he was appointed by the then-Commissioner of Motor Vehicles
To support this rationale, they offer the inadmissible hearsay testimony of an MNO clerk that ALJ Haynes also complained of a disproportionate workload when she began work at the MNO. In reviewing the district court's grant of summary judgment, however, we may only consider admissible testimonySee Raskin v. Wyatt Co.,
In contrast, Feingold's argument that a reasonable fact-finder could conclude that the rationale was pretextual because the manner in which he was fired did not accord with normal DMV practice is without support. Feingold does not provide any meaningful evidence of the "general policy" he alleges
Though state courts are not in unanimous agreement with this aspect of our decision inTomka, the majority of courts that have considered the issue have affirmed the existence of a cause of action against individual defendants under the aid-or-abet provision of the NYSHRL. See, e.g., D'Amico v. Commodities Exch., Inc.,
Except, of course, that unlike a Title VII claim a Section 1983 claim can be brought against individuals
Once this three-pronged test is satisfied, the extent to which Feingold could be disciplined for his speech is "determined by balancing the interest of the employee, in his role as a citizen, in commenting on matters of public concern against the interest of the government, in its role as an employer, in promoting the efficiency of the services it performs through its employees."Mandell,