In Dawson v. William Brock Long, Administrator of the Federal Emergency Management Agency, 2018 WL 4519199 (S.D.N.Y. Sept. 20, 2018), the court adopted a Magistrate Judge’s Report & Recommendation that defendant’s summary judgment motion be granted on plaintiff’s claims of race discrimination under Title VII of the Civil Rights Act of 1964.
After agreeing that plaintiff failed to timely exhaust his administrative remedies – as a federal employee, he was required to “initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action,’ which he did not do – the court turned to the merits.
Even if Plaintiff’s employment discrimination claims predating December 7, 2013 were properly before this Court, summary judgment in Defendant’s favor is warranted. … Plaintiff must establish a prima facie case that “(1) [he] is a member of a protected class; (2) [he] is qualified for [his] position; (3) [he] suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination.” Vega v. Hempstead Union Free School Dist., 801 F.3d 72, 82–83 (2d Cir. 2015) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). If Plaintiff successfully establishes his prima facie case, then Defendant must “articulate some legitimate, non-discriminatory reason” for the disparate treatment that is not pretextual. Id. at 83.
In this case the Report found that, although the first three prongs of the McDonnell Douglas test are satisfied, Plaintiff provides no evidence that would allow a reasonable trier of fact to infer discrimination. (Report at 24.) At best, Plaintiff makes conclusory assertions that he was discriminated against by his supervisors for being African American. (Id.) These conclusory allegations are insufficient at summary judgment. See Patterson v. County of Oneida, N.Y., 375 F.3d 206, 222 (2d Cir. 2004). In fact, Plaintiff withdrew his employment discrimination claim during his deposition. (Report at 24–25.)4 Furthermore, there is no evidence on the record that Defendant favored similarly situated employees outside of Plaintiff’s protected group. (Id.)
Even if Plaintiff had presented sufficient evidence for a prima facie inference of discrimination, the Magistrate Judge correctly found ample evidence that Plaintiff was denied overtime and ultimately terminated because FEMA was downsizing, and there were numerous reports of poor job performance and insubordination. (Report at 26.) These are legitimate, non-discriminatory reasons for Defendant’s actions adverse to Plaintiff’s employment that are not pretextual. See Hartley v. Rubio, 785 F. Supp. 2d 165, 178–179 (S.D.N.Y. 2011). Accordingly, summary judgment is GRANTED to Defendant on Plaintiff’s discrimination claim.