Case No. 04-CV-4965 (FB) (ALC).
United States District Court, E.D. New York.
March 12, 2010. *274
MEMORANDUM AND ORDER
BLOCK, Senior District Judge.
John Alleva ("Alleva") is a former employee of the New York City
Department of Investigation ("the DOI"); he was terminated on July
19, 2004. Alleva believes that he was discriminated against on account of his
age because he was terminated; the DOI failed to promote him at various times;
he suffered retaliation, and he endured a hostile work environment. Alleva
claims that these alleged discriminatory acts violated the Age Discrimination
in Employment Act ("the ADEA"), the New York State Human Rights Law
("the NYSHRL"), and the New York City Human Rights Law ("the
The DOI seeks summary judgment dismissing Alleva's complaint in its entirety.2
For the reasons that follow, the DOI's motion is granted. *2 The parties agree
that Alleva, then 65 years of age, was interviewed for a position with the DOI
at some point in early 1998 by Clive Morrick ("Morrick"), a DOI
Inspector General. Alleva was subsequently hired in June 1998; he served as a
Level III Confidential Investigator ("CI") for his entire tenure. At
some point during his employment, he became a DOI Peace Officer, which required
him to carry certain equipment, including a firearm, handcuffs, a baton, and
pepper spray. He was fired in July 2004 at the age of 71.
Alleva's complaint also alleged claims under Title VII, see Compl. ¶¶ 54-57,
and under state law for intentional infliction of emotional distress. Id. ¶¶
66-69. Alleva now candidly concedes that he cannot make out either claim. See
Alleva Mem, of Law at 1 (noting that Title VII is inapplicable to Alleva's
claims); id. at 6 (withdrawing emotional distress claim). Accordingly, the
Court deems these claims withdrawn.
The DOI contends that Alleva's complaint should be dismissed in its entirety
since Alleva sued the DOI — a city agency — not the City of New York itself.
See N.Y.C. Charter § 396 ("All actions . . . shall be brought in the name
of the city of New York and not in that of any agency . . ."). When claims
"are brought against non-suable entities," the Court may construe
them "as brought against the City of New York." Thompson v. Grey, No.
08-CV-4499, 2009 WL 2707397, at *5 (E.D.N.Y. Aug. 26, 2009). This issue is
ultimately irrelevant in light of the disposition of Alleva's claims on the
merits in favor of the DOI.
A. THE COMPLAINT
The Complaint alleges that Alleva "was assigned the most difficult cases
in the office" during his tenure, and that he "produced the division
[ sic] largest share of convictions and referrals to the District
Attorney." Compl. ¶ 22. Alleva believes, however, that he "was denied
[pay] increases and promotions all due to his age rather than his vast
*3knowledge, effective performance, overwhelming qualifications, and tremendous
experience." Id. at ¶ 41.
The Complaint points to two alleged remarks by Alleva's superiors in support of
his claims that his six-year tenure was marked by age discrimination. The first
dates to October 1998, when Alleva's "sponsor," a "Deputy
Commissioner Ford," left the DOI. Martha Gumbiner ("Gumbiner"),
a DOI Deputy Inspector General and Alleva's superior, told Alleva that when the
"sponsors" of DOI employees depart, the employee can "forget
about any future advancement opportunities." Id. at ¶ 15. The second
comment came from Morrick, who was Alleva's direct supervisor during the period
June 1998 until some time in 2003. During a staff meeting on September 26,
2002, Morrick allegedly stated "we have enough old people working
here." Id. at ¶ 24.
In addition to these comments, the Complaint alleges that several promotions
were denied to Alleva. Three "Deputy Inspector General" positions
were filled by Morrick between February 1999 and April 2000; Alleva claims that
he was qualified for these positions but "was not extended an
invitation" to interview. Id. at ¶¶ 18-19. In May 2001, Morrick hired Chris
Staackmann ("Staackmann") as a "Chief Investigator";
Staackmann was "younger and less qualified" than Alleva. Id. at ¶¶
Morrick left the DOI at some point in 2003; John Kantor ("Kantor")
became Alleva's new supervisor, but continued to exhibit "hostility and
discriminatory actions" against Alleva "on the basis of his
age." Compl. ¶ 32. Alleva claims that Kantor: (1) required Alleva to
complete a *277 "proactive investigation" without sufficient support;
(2) disapproved one of Alleva's claims for reimbursement for a meal he
purchased while *4 working on the investigation; (3) suspended Alleva's driving
privileges for failing to report a February 2004 automobile accident in
compliance with DOI policies; (4) ordered Alleva to surrender his firearm after
"having words" with him. Id. at ¶¶ 31-37. Kantor also hired another
unnamed person "who was younger and less experienced" than Alleva as
a Chief Investigator in May or June 2004. Id.at ¶ 39.
Alleva was then terminated on July 19, 2004; he filed a charge of discrimination
with the Equal Employment Opportunity Commission ("EEOC") on July 20,
and the EEOC issued a right to sue letter on August 17, 2004. Id. at ¶¶ 40-43.
In sum, Alleva believes that the following events or courses of conduct
violated his rights under the ADEA, NYSHRL, and NYCHRL:
I) Termination (July 19, 2004)
ii) Failure to Promote Alleva to Chief Investigator (May/June 2004)
iii) Failure to Promote Alleva/Hiring of Staackmann as Chief Investigator (May
iv) Failure to Promote Alleva to Deputy Inspector General (February 1999-April
v) Hostile Work Environment (Entire Tenure)
vi) Retaliation (Date Unclear)
B. THE DOI'S POSITION
The DOI has a far different account of Alleva's tenure, and its account is
supported by a 56.1 Statement of Material Facts comprised of 35 paragraphs and
37 *5 documentary exhibits in support. The DOI also submitted the declarations
of two DOI employees: Walter Arsenault ("Arsenault"), the former
First Deputy Commissioner of Investigation for the DOI, attests to facts
concerning Alleva's termination; Cynthia Mathis, the current Director of Human
Resources for the DOI, attests to facts concerning Alleva's DOI salary. In sum
and substance, the 56.1 Statement and its supporting exhibits and declarations
lay out a series of DOI policy breaches committed by Alleva in 2003 and 2004.
These breaches — to which Alleva admitted under oath in an interview of June
23, 2004 — directly precipitated his termination.
C. ALLEVA'S RESPONSE
In opposition to the DOI's statement of the case, Alleva, who is represented by
counsel, offers no evidence beyond the bare allegations of his Complaint. He
has submitted a threadbare three-page 56.1 Statement of Material Facts, which
cites no documents or evidence and fails to controvert any of the DOI's facts
beyond the vague and conclusory statement "Plaintiff disputes the
substance of this paragraph[.]" See Alleva 56.1 Statement passim (July 30,
2009). There are also two declarations from Alleva and one by his attorney. Each
purports to be "under penalty of perjury" pursuant to 28 U.S.C. §
1746, but each is unsigned. See Alleva Decl. at 4 (July 30, 2009) (unsigned);
Alleva Am. Decl. at 4 (Aug. 19, 2009) (unsigned); Bello Decl. at 1, Docket
Entry No. 40 (undated and unsigned). In sum, these three brief and conclusory
declarations do little more than recite the allegations of the Complaint; none
of them cites any evidence to controvert the DOI's Statement of Facts. Alleva's
counsel also submitted a very brief memorandum of law. *6
Finally, Alleva himself submitted a letter directly to the Court, stating that
he has "not been able to reach" his counsel and that he feels that he
is "being placed *278 in a position of having to represent myself."
See Letter from J. Alleva (Aug. 31, 2009). This letter reiterates some of the
Complaint's allegations; it further alleges that certain allegations will be
proved by "documents asked for in discovery," though it fails to
specify which documents were requested and not provided.3
The letter bears Alleva's signature but is not notarized nor does it purport to
declare facts "under penalty of perjury" pursuant to 28 U.S.C. §
Alleva's letter also appears to raise — some five years into the litigation — a
new allegation of discrimination based on ethnicity. See Letter from J. Alleva
at 4 (claiming that several other DOI employees were discriminated against on
the basis of age and on the basis of Italian-American heritage). Since Alleva's
letter does not allege that he himself was discriminated against on this basis,
the Court has no need to consider this allegation or to determine whether the
Complaint may be constructively amended at this late hour by a pro se letter
Local Rule 56.1 provides, in relevant part, that a 56.1 Statement "will be
deemed to be admitted for purposes of the motion unless specifically
controverted" by the opposing party. Local R. 56.1(c). Statements in opposition
"must be followed by citation to evidence which would be
admissible[.]" Local R. 56.1(d). Alleva's 56.1 Statement does not
specifically controvert anything set forth by the DOI, nor does it cite any
The three declarations could be treated as a substitute for a 56.1 Statement.
See 10A Wright, Miller Kane Federal Practice Procedure: Civil 3d § 2728, at 529
(1998) ("[W]hen the evidence offered in opposition to a motion . . . for
summary judgment is defective in form but is sufficient to apprise the court
that there is important and relevant *7 information that could be proffered to
defeat the motion, summary judgment ought not to be entered."). However,
the lack of a signature renders them invalid under 28 U.S.C. § 1746, which
requires the signature of the declarant.4
28 U.S.C. § 1746 (providing that any matter required to be proved by affidavit
or under oath may be proven by a written statement "declare[d] under
penalty of perjury" that is "subscribed" or signed by the
declarant). Since they are invalid, they cannot be considered as evidence in
opposition to the DOI's motion. Even if they were signed, none of the
declarations cites any evidence that controverts anything set out by the DOI's
Statement of Facts. As for the memorandum of law, legal argument is not
evidence. Finally, Alleva's letter of August 31, 2009, has no evidentiary value
because it is unsworn.
The declaration by counsel is deficient for an additional reason; counsel
offers no facts based on "personal knowledge," and personal knowledge
is required. Fed.R.Civ.P. 56(e)(1) ("A supporting or opposing affidavit
must be made on personal knowledge[.]").
The Court is left, therefore, with the Complaint. "A verified complaint is
to be treated as an affidavit for summary judgment purposes," provided
that it "meets the other requirements for an affidavit under [Federal Rule
of Civil Procedure] 56(e)." Colon v. Coughlin, 58 F.3d 865,872 (2d Cir.
1995). The Complaint is not verified, however; it bears only the signature of
Alleva's attorney, not the signature of Alleva himself, and Alleva's attorney
does not attest to any "personal knowledge" of the Complaint's
allegations. "Personal knowledge" is required under Rule 56(e)(1);
moreover, a party opposing summary judgment "may not rely merely on
allegations or denials in its own pleading[.]" Fed.R.Civ.P.56(e)(2).
Accordingly, *279 the Complaint has no evidentiary weight. *8
Alleva thus offers no evidence of any kind in support of the allegations of his
Complaint or in opposition to the DOI's motion or the DOI's Statement of Facts.
Even if the Complaint, the declarations, and Alleva's letter were accepted as
admissible evidence — which they are not — they do not specifically controvert
anything set forth in the DOI's Statement of Facts. The DOI's Statement of
Facts is therefore deemed admitted for purposes of the DOI's motion. SeeLocal
R. 56.1(c). The relevant facts of the DOI's Statement are set out below.
For the period 1998-2002, Alleva's DOI performance reviews indicate that he
was, on the whole, a satisfactory employee who: "willingly assisted"
other investigators in their cases; provided "highly effective
support"; and "appl[ied] himself to document intensive matters, and
work[ed] well with the prosecutors' offices handling his referred
matters." DOI 56.1 Statement at ¶¶ 6, 9. Notwithstanding these positive
reviews, by 2003 Alleva's relationship with his employer had soured. In
evaluating Alleva's performance for 2002, Morrick (then his supervisor) wrote:
"[Alleva] does not approach small matters . . . with much enthusiasm . . .
[Alleva] has time on his hands and should be looking for assignments. For all
his experience, [Alleva] sometimes forms premature judgments about a case and
does not dig sufficiently deep for evidence." Id. at ¶ 13.5
With respect to Alleva's allegation that Morrick stated at a 2002 meeting that
"we have enough old people working here," Morrick testified at his
deposition that "[t]here may have been a time when I made a remark . . .
of that tenor[;] that would have been self-directed. That is directed at me . .
. If I said it, [I said it about myself]." Morrick Dep. Tr. at 16 (Oct.
18, 2007), Welch Decl. Ex. E. Morrick was approximately 60 years of age at the
time of the alleged statement.
Alleva appealed this evaluation by sending a letter to Daniel Brownell
("Brownell"), the DOI Deputy Commissioner for Investigations. See
Mem. from J. Alleva to D. Brownell (Dec. 10, 2002), Welch Decl. Ex. L. Alleva
complained of "a number of personal and discriminatory actions" by
Morrick, and further added that the DOI had a discriminatory animus against
him, based on: (1) Gumbiner's alleged 1998 statement; (2) the failure to
promote Alleva from CI III status; and (3) perceived favorable treatment
accorded to other investigators. See DOI 56.1 Statement at ¶ 14. Notably,
Alleva's letter to Brownell made no reference of any kind to age, nor did it
complain of discrimination based on age. The results of Alleva's appeal, if
any, are not in the record.
On September 29, 2003, Kantor, who had by then replaced Morrick as Alleva's
supervisor, conducted an inspection of all DOI Peace Officers, including
Alleva; Alleva was not in possession of his handcuffs, pepper spray, and baton.6
He was required to have these under DOI Peace Officer policy.
Three other DOI Peace officers were inspected at the same time; each was in
possession of all required equipment.
In October 2003, Alleva was driving his DOI-issued vehicle on the Brooklyn
Bridge when he "bumped" another vehicle. Alleva did not obtain any
identifying information about the other vehicle, nor did he report the accident
to the DOI fleet coordinator. DOI policies and procedures required him to do
Between October 2003 and January 2004, Alleva made more than forty hours of
non-work related telephone calls from the telephone in his DOI office; most of
these calls were *280 to family members and personal friends. More than six
hours of calls were made in *10 connection with Alleva's attempt to resolve an
erroneous water bill for a personal friend. These activities violated DOI
On February 6, 2004, Alleva struck a pedestrian in Staten Island while driving
his DOI-issued vehicle. Alleva did not obtain complete information about the
pedestrian or any possible witnesses, nor did he notify the DOI fleet
coordinator; DOI policies required him to do both. Alleva's driving privileges
were suspended by Kantor due to his failure to report the accident.7
Alleva did notify James Christo, a fellow investigator, about the accident.
With respect to Alleva's allegation that "no other employee was
subjected" to a similar suspension of driving privileges, Kantor testified
in his deposition that he has suspended at least one other employee's driving
privileges. Kantor Dep. Tr. at 39:09-22.
DOI personnel investigated the facts and circumstances of the February 2004
Kantor asked Alleva to surrender his firearm during the investigation, but
Alleva was not carrying his firearm, a second violation of DOI Peace Officer
The investigation was evidently delayed by Alleva's absence from work due to
Arsenault and Brownell interviewed Alleva under oath on June 23, 2004. After
demanding and receiving immunity against prosecutorial use of his testimony,
Alleva admitted that he violated DOI policies with respect to: reporting
accidents; using DOI phones and fax machines; and attempting to use his office
to help a friend with a water bill. Alleva also admitted that he violated DOI
Peace Officer policies by failing to carry his firearm in February 2004.
In a letter dated July 13, 2004, Arsenault terminated Alleva's employment
effective July 19, 2004. Arsenault's letter did not specify the reasons for
Alleva's *11 termination, but Arsenault's declaration states that Alleva's
admission to multiple violations of DOI policies precipitated his termination.
See Arsenault Decl. ¶¶ 4-5.9
For purposes of completeness, although Alleva has adduced no evidence in
support of his allegations that he was unjustly denied pay raises, the Court
notes that Alleva received at least one pay increase during his tenure. See
Personnel Action re: Alleva, John (July 1, 2000) (raising Alleva's pay by
$1,064 per year, a net effective raise of 2.3%), Welch Decl. Ex. K. The DOI's
records indicate also that Alleva was the highest-paid CI during his tenure.
See Welch Decl. Ex. C. As to Alleva's claim that he was unjustly denied
reimbursement for an overtime meal, the Court notes that the DOI has submitted
evidence indicating that the reimbursement request was approved and paid. See
Pay Inquiry for Alleva, John (Apr. 1, 2009) (reflecting payout of $16.50 for
"Supper Money" incurred January 23, 2004), Welch Decl. Ex. HH.
A. STANDARD OF REVIEW
A party's motion for summary judgment should be granted where "the
pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). The
movant must demonstrate the absence of a genuine issue of material fact.
Celotex v. Catrett, 477 U.S. 317
322-23 (1986). Facts are "material" if they "might affect the
outcome of the suit under the governing law." Anderson v. Liberty Lobby,
Inc., 477 U.S.
, 247-48 (1986). Material facts are *281 in dispute only if "the
evidence is such that a reasonable jury could return a verdict for the
non-moving party," see id., and the facts "must be viewed in the light
most favorable to the nonmoving party . . ." Scott v. Harris, 550 U.S.
, 380 (2007) (internal citation omitted). If the movant succeeds in
showing that no genuine issue remains to be tried, then summary judgment should
be granted unless the opposing party can "come forward with `specific
facts*12 showing that there is a genuine issue for trial.'" Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475
, 586-87(1986) (quoting Fed.R.Civ.P. 56(e)) (other internal
Since "direct evidence of an employer's discriminatory intent will rarely
be found," motions for summary judgment in employment discrimination
actions should be evaluated with particular caution. Schwapp v. Town of Avon,
118 F.3d 106,110 (2d Cir. 1997) (citations omitted). Nonetheless, a plaintiff
who believes that he has been subjected to discriminatory animus "must
provide more than conclusory allegations of discrimination to defeat a motion
for summary judgment." Id. at 110 (internal citation omitted). "It is
now beyond cavil that summary judgment may be appropriate even in the fact-intensive
context of discrimination cases." Abdu-Brisson v. Delta Air Lines, 239 F.3d
,466 (2d Cir. 2001).
B. ALLEVA'S CLAIMS
1. Federal Claims — Age Discrimination Under the ADEA a. ADEA's Statute of
There is a threshold question of which claims may be considered in light of the
ADEA's relatively short statute of limitations of 300 days. Teivksbury v.
Ottaway Newspapers, 192 F.3d 322
328 (2d Cir. 1999); 29 U.S.C. § 626(d)(1)(B) (defining the statute of
limitations). The statute of limitations was tolled when Alleva submitted his
claim to the EEOC on July 20, 2004.10
Welch Decl., Ex. DD (Alleva's EEOC claim form). Discriminatory acts that
occurred prior to September 24, 2003, are therefore time-barred. *13
The EEOC form is stamped "Received" on July 22, 2004, but was signed
by Alleva (and notarized) on July 20, 2004. The Court will give Alleva the
benefit of the intervening two days, although they ultimately have no bearing
on the statute of limitations issue.
Alleva contends that the ADEA's statute of limitations does not apply because
he has been subjected to a "continuing violation" of his rights.
Alleva Mem. of Law at 2. The "continuing violation" doctrine provides
that "if a plaintiff has experienced a continuous practice and policy of
discrimination," the statute of limitations will not begin to run
"until the last discriminatory act in furtherance of it." Fitzgerald
v. Henderson, 251
, 359 (2d Cir. 2001) (internal marks and citation omitted). The
doctrine "is heavily disfavored in the Second Circuit," however, and
"courts have been loath to apply it absent a showing of compelling
circumstances." Trinidad v. N.Y. City Dep't of Corr., 423 F. Supp. 2d 151,
165 n. 11 (S.D.N.Y. 2006) (internal marks and citations omitted). Moreover, the
continuing violation doctrine may not be applied to otherwise time-barred
"discrete discriminatory acts . . . even where they are related to acts
alleged in timely filed charges." Nat'l R.R. Passenger Corp. v. Morgan, 536
, 113 (2002). "Discrete" acts of discrimination include
"termination, failure to promote, denial of transfer, or refusal to
hire"; each "starts a new clock for filing charges alleging that
act." Id. at 113-14. *282
Alleva's termination claim is timely. As for the multiple times he alleges he
was passed over for promotion, National Railroad bars the consideration of any
failures to promote that occurred before September 24, 2003. With respect to
the hostile work environment and retaliation claims, the Court cannot discern
from Alleva's submissions whether there exist "compelling
circumstances" to justify the application of the "heavily
disfavored" continuing violation doctrine. Since the Court ultimately
concludes that both claims fail on the merits, the Court has no need to
determine whether the continuing violation doctrine applies in these
circumstances. *14 b. Termination
Until quite recently, ADEA claims were analyzed under the familiar
"burden-shifting" framework of McDonnell Douglas. See, e.g., D'Cunha
v. Genovese/Eckerd Corp., 479 F.3d, 194-95 (2d Cir. 2007). However, the Supreme
Court last term cast doubt on the continued application of McDonnell Douglas to
ADEA claims: "This Court has never held that this burden-shifting
framework applies to ADEA claims. And, we decline to do so now." Gross v.
FBL Fin. Servs., 129
, 2349(2009); id. at 2349 n. 2 (reiterating that Supreme Court
"has not definitively decided whether the evidentiary framework of
McDonnell Douglas" is "appropriate in the ADEA context").
Gross makes clear that, regardless of whether the burden-shifting framework
retains any analytical viability, Alleva would ultimately have to establish
"that age was the `but-for' cause of the employer's adverse action."
Id. at 2351. Since the Court ultimately concludes that no evidence in the
record shows that age was a cause — much less the "but-for" cause —
of Alleva's *15 termination, it has no need to consider whether the burden-shifting
analysis remains applicable.See, e.g., Holowecki v. Fed. Express Corp., 644 F.
Supp. 2d 338, 352 (S.D.N.Y. 2009) (disposing of ADEA claims on merits because
"plaintiffs have failed to make out even a colorable case of age
discrimination," "regardless of whether or not[McDonnell Douglas]
continues to apply").
Alleva cannot prove that his age was the "but-for" cause of his
termination. He admitted to multiple violations of DOI policies and procedures
at his interview on June 23, 2004; he was terminated within weeks. Arsenault's
declaration states that Alleva's termination was on account of these
violations, and Alleva offers no evidence to the contrary.
c. Failure to Promote Claims
ADEA's statute of limitations bars consideration of the alleged failures to
promote Alleva in 1999-2000 and 2001. Nat'l R.R., 536 U.S. at 113-14. The only
"failure to promote" claim that survives, therefore, is Alleva's
allegation that he was unjustly denied a promotion to Chief Investigator by
Kantor in 2004. In light of Gross, Alleva would ultimately have to prove by a
preponderance of the evidence that age was the "but-for" cause of a
decision to deny him this promotion.Gross, 129 S.Ct. at 2351; see also Faison
v. Dist. of Columbia, 664 F. Supp. 2d 59, 67 (D.D.C. 2009) (applying Gross to
failure to promote claims).
Alleva cannot possibly make out this claim: he did not even apply for the
position that he contends was unjustly refused to him. Compare Kantor Dep. Tr.
at 18:16-17 ("I don't recall [Alleva] applying for that position."),
Welch Decl. Ex. N, with Alleva Dep. Tr. at 58:03-09 ("[Q.] [W]ere there
specific promotions that you applied for and did not receive? [A.] No, I don't
think it works that way in D.O.I. *283 unless it changed since I left you don't
apply . . . I don't know what you're talking about."), Welch Decl. Ex. O.
Alleva contends that whether or not he applied is irrelevant because "[i]t
was developed during discovery that a formal application was unnecessary when
the agency wanted an individual to be promoted." Id. Alleva submits no
evidence of such a policy. Even if such a policy existed, Alleva submits no
evidence that any of the hiring authorities at the DOI were even aware that he
might be interested in the position. Without consciousness of his *16
candidacy, it is impossible for hiring authorities to have rejected it. It is
logically impossible for Alleva's age to have been a "but-for" cause
of a decision that was never made.
d. Hostile Work Environment
A hostile work environment under the ADEA is one in which "the workplace
is permeated with discriminatory intimidation, ridicule, and insult that is
sufficiently pervasive to alter the conditions of the victim's
employment."Fordham v. Islip Union Free Sch. Dist., 662 F. Supp. 2d 261,
271 (E.D.N.Y. 2009) (quoting Kassner v. 2d Ave. Delicatessen, 496 F.3d 229
, 239 (2d
Cir. 2007). To make out such a claim, Alleva must prove that: (1) he was
subjected to harassment, based on his age, that was "sufficiently severe
or pervasive to alter the conditions of [his] employment and create an abusive
working environment"; and (2) "that a specific basis exists for
imputing the objectionable conduct to the employer." Alfano v. Costello, 294 F.3d 365
, 373 (2d
Cir. 2002) (internal citation omitted).
To be "severe or pervasive," Alleva must show that the conduct was:
(1) "objectively severe or pervasive . . . [creating] an environment that
a reasonable person would find hostile or abusive"; (2)
"subjectively" severe or pervasive, in that Alleva must have
perceived it as hostile or abusive; and (3) on account of Alleva's age. Patane
v. Clark, 508 F.3d 106
(2d Cir. 2007). Objective severity is assessed on a "totality of the
circumstances," which may include: (1) "frequency of the
discriminatory conduct"; (2) "its severity"; (3) "whether
it is physically threatening and humiliating, or a mere offensive
utterance"; and (4) "whether it unreasonably interferes with an
employee's work performance."Harris v. Forklift Sys., Inc., 510 U.S. 17
23 (1993). *17
With these principles in mind, it is clear that Alleva's hostile work
environment claim fails. Even if the Court were to accept the bare allegations
of the Complaint as evidence, Alleva's allegations of hostility fall well short
of demonstrating an objectively hostile work environment. Aside from his
complaints about being passed over for promotion, his specific claims of
"hostility" are limited to two stray and only arguably offensive
remarks separated by four years — hardly the makings of a "severe and pervasive"
atmosphere of humiliation. See, e.g., Kassner, 496 F.3d at 240-41 (reversing
district court that dismissed hostile work environment claim for failure to
state a claim where first plaintiff alleged being subjected to
"repeated" and "degrading" comments including "drop
dead," "retire early," "take off all of that make-up,"
and "take off your wig"; affirming district court's dismissal of
claims of second plaintiff who alleged only "pressure" to
"retire from employment"). Gumbiner's 1998 comment, construed
objectively, had nothing to do with age but everything to do with workplace
relationships. Morrick's 2002 comment, construed objectively, might be found
mildly offensive by some, but falls far short of "severe" or
"humiliating." *284 e. Retaliation
To make out a claim of retaliation in violation of the ADEA, Alleva must show
that he: (1) participated in a protected activity; (2) that the DOI knew of the
protected activity; (3) that he suffered an adverse employment action; and (4)
that the protected activity and the adverse employment action were causally
related. McMenemy v. City of Rochester, 241 F.3d 279
282-83 (2d Cir. 2001) (internal citation omitted); see also 29 U.S.C. § 623(d)
(ADEA is violated whenever an employer retaliates against an employee because
*18 employee "has opposed any practice made unlawful by this section, or
because [employee] has made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or litigation under this
Alleva's discussion of his retaliation claim in his submissions in opposition
to the DOI's motion is a single paragraph that makes only two cursory
references to possible "protected activities" referred to in his Complaint:
(1) his administrative challenge to his 2002 performance rating; and (2)
"when he met with DOI commissioners about [Gumbiner's] statements" in
1998. See Alleva Mem. of Law at 6.
Alleva does not explain how either event constituted a protected activity, nor
does he explain how he was retaliated against for complaining. The 2002 letter
to Brownell did not complain of any age-based discrimination, so it does not
qualify as a protected activity; even if it did, Alleva does not establish a
causal link to any adverse employment action he suffered on account of this
letter, which was submitted more than 18 months before his termination.
Morrick, the chief target of Alleva's administrative challenge, ceased being
Alleva's supervisor at some time in 2003, and had nothing to do with his
discipline and termination in 2004. Morrick Dep. Tr. at 9:17-21, 22:11-15,
Welch Decl. Ex. F. As for Alleva's "conversation" in 1998 about
Gumbiner's 1998 comment, Alleva fails to establish that Gumbiner's comment was
related to Alleva's age; even if it was, he does not explain how he was
retaliated against because of any complaint about Gumbiner. See Alleva Mem. of
Law at 6. *19
In short, Alleva's one-paragraph discussion of his retaliation claims, which
cites no evidence and offers no argument, falls short of demonstrating that a
genuine issue of fact remains for trial.
2. State Municipal Law Claims Under the NYSHRL the NYCHRL
Only Alleva's state and municipal law claims remain, and the Court must
determine whether to exercise supplemental jurisdiction over them. See 28
U.S.C. § 1367(c) (district court "may decline to exercise supplemental
jurisdiction" if, among other circumstances, the "court has dismissed
all claims over which it has original jurisdiction."). The Second Circuit
has set forth several factors to be considered when deciding whether to
exercise supplemental jurisdiction: "(1) whether state law claims
`implicate the doctrine of preemption,' . . . (2) `judicial economy,
convenience, fairness, and comity,' . . . (3) the existence of `novel or
unresolved questions of state law,' . . . (4) whether state law claims `concern
the state's interest in the administration of its government." Drake v.
Lab. Corp. of Am. Holdings, 323 F. Supp. 2d 449,452 (E.D.N.Y. 2004) (quoting
Valencia ex rel. Franco v. Lee, 316 F.3d 299
306 (2d Cir. 2003)). "[I]n the usual case in which all federal-law claims
are eliminated before trial, the balance of factors . . . will point toward
declining to exercise jurisdiction over the remaining state-law claims."
Travelers Ins. Co. v. Keeling, 996 F.2d 1485
1490 (2d Cir. 1993). *285
"Age discrimination claims brought pursuant to the NYSHRL and the NYCHRL
are analyzed under the ADEA framework[.]" Leibowitz v. Cornell Univ., 584 F.3d 487
498 n. 1 (2d Cir. 2009). Gross has significantly altered the framework of ADEA
claims however, and Gross may (or may not) alter the framework of NYSHRL and
NYCHRL *20CLAIMS. There exists but one New York case citing Gross, though that
case strongly implies that the "but-for" causality required by Gross
is now the law of New York. See Anderson v. Young Rubicam, 890 N.Y.S.2d 45, 46
(1st Dep't 2009) (affirming trial court's refusal to give "mixed
motive" jury charge on age discrimination claims, citing Gross).
Notwithstanding this single case, there remains a question of whether the
analytical frameworks of the ADEA, the NYSHRL, and the NYCHRL will continue to
mirror one another after Gross; therefore, the Court declines to exercise its
supplemental jurisdiction over Alleva's state and municipal law claims.
The DOI's motion is granted as to Alleva's federal claims. Alleva's NYSHRL and
NYCHRL claims are dismissed without prejudice to renewal in state court. The
complaint is therefore dismissed in its entirety.