Cayemittes v. City of New York Department of Housing Preservation & Development
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Opinion
OPINION AND ORDER
RONNIE ABRAMS, District Judge:
Pro Se Plaintiff J. Claudel Cayemittes brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., against The City of New York Department of Housing Preservation and Development (“HPD” or “Defendant”), the sole remaining Defendant in this action. Before the Court is Defendant’s motion for summary judgment. For the reasons set forth below, the motion is granted.
BACKGROUND
A. The Summary Judgment Record
As is generally the case, the facts the Court has considered in connection with this motion derive from the evidence sub[242]*242mitted by the parties and from their statements made pursuant to Local Civil Rule 56.1. Before the Court sets forth the factual background of this case, however, it finds it appropriate, in light of the voluminous and unconventional nature of Plaintiffs submissions, to first define with some precision the scope of its review and the materials upon which it has relied in connection with this motion.
1. Plaintiffs Rule 56.1 Statements
Pursuant to Local Civil Rule 56.2 (requiring “Notice to Pro Se Litigant Who Opposes a Summary Judgment”) Defendant timely advised Plaintiff of the procedures governing summary judgment submissions, including that Plaintiff “may [not] oppose summary judgment simply by relying upon the allegations in [his] amended complaint” and that “[a]ny witness statements must be in the form of affidavits ... [and] based on personal knowledge stating facts that would be admissible in evidence at trial.” (Dkt. 51.) Defendant also timely provided Plaintiff with copies of the text of Federal Rule of Civil Procedure 56 and Local Civil Rule 56.1. Plaintiff was therefore adequately notified that “[e]ach statement by the ... opponent pursuant to Rule 56.1( [b]), including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(c).” Local Civ. R. 56.1(d).
Plaintiff has filed two 56.1 Statements that do not comply with these rules.1
The first of these submissions, which responds to Defendant’s 56.1 Statement, is properly comprised of a list of numbered paragraphs each of which “coneede[s]” or “dispute[s],” as the case may be, the fact contained in the corresponding numbered paragraph in Defendant’s submission. Regardless of whether a fact is conceded or disputed, however, Plaintiff proceeds to add, in a majority of these paragraphs, a supply of additional facts that are unsupported by admissible record evidence. See, e.g., Pl.’s 56.1 ¶¶ 18, 21, 30-33, 57. Additionally, many of these “facts” are, inter alia: speculative, see, e.g., Id. ¶ 58 (“Neither Carbine [n]or Hendrickson understood [P]laintiffs job as director of TPT/TLS.”); conclusory, see, e.g., Id. ¶47 (“By late February 2008, [P]laintiff had already been subjected to several retaliatory actions by Carbine for his complaints.”); and/or argumentative, see, e.g., Id. ¶ 82 (“At best this sounds like a glib take on the role of DAMP ... ”).
Plaintiffs second 56.1 Statement consists, according to Plaintiff, of additional “material facts [that] are not in dispute.” (PL’s 56.1 p. 1.) This submission, which runs a full sixty-eight pages, is not “short and concise” and is not organized into numbered paragraphs,' as the Local Rule requires. More fundamentally, it does not contain, for the most part, facts corroborated by admissible evidence, but rather, statements that are, inter alia: vague, see, e.g., PL’s 56.1 p. 52 (Carbine “made vague disparaging comments to others about [Plaintiffs job performance but [has] always been careful not to ever give specifics or provide any proof.”); conclusory, see, e.g., Id. p. 7 (“Aragon decided to evaluate [P]laintiff ... in order to retaliate against plaintiff ... ”); speculative, see, e.g., Id. p. 5 (“Carbine was not interested in learning the TPT or TLS programs”); relevant only to claims that (as explained below) have been dismissed as time-barred or otherwise legally insufficient, see, e.g., Id. p. 51 (“In 2002 Aragon summoned plaintiff [243]*243into his office and reprimanded him in error for something that plaintiff did not do.”); and/or personal attacks see, e.g., Id. p. 50 (“Since about 2005 HPD has had a cadre of morally corrupt managers who [are] shameless liars and eared only about their ego.”).
Despite these various infirmities, acknowledging that the various procedural rules attendant to opposing summary judgment may be challenging or confusing for a pro se litigant, the Court has reviewed Plaintiffs submissions in their entirety and has done its best to separate the wheat from the chaff. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir.2001) (“A district court has broad discretion to determine whether to overlook a party’s failure to comply with local court rules.”). Specifically, although Plaintiff has not submitted a declaration or other sworn statement in opposition to Defendant’s motion, the Court will consider the unsworn content in Plaintiffs 56.1 Statement, to the extent it is otherwise admissible. In so doing, the Court relies on the assumption that Plaintiff would have testified to such content had he complied with the governing rules. See Geldzahler v. New York Med. Coll., 746 F.Supp.2d 618, 620 n. 1 (S.D.N.Y.2010) (“[Djespite [plaintiff] having received the 56.2 Notice, we take into account his status as a pro se litigant and will consider the unsworn statements in his 56.1 Response on the assumption that he would have testified to these statements in his Declaration.”); Shah v. Kuwait Airways Corp., 653 F.Supp.2d 499, 506 (S.D.N.Y.2009) (Lynch, J.) (“[Tjhe Court will consider [plaintiffs] declaration, even though it is unsworn, on the assumption that, if its allegations were sufficient to raise an issue of fact, Shah would be given an opportunity to submit an affidavit in the proper form attesting to those allegations.”). By the same token, the Court has disregarded the content of Plaintiffs 56.1 Statements that it deems conclusory, speculative, irrelevant, argumentative, unsupported or otherwise inappropriate for consideration. See Shortt v. Congregation KTI, No. 10 Civ. 2237(ER), 2013 WL 142010, at * 1 n. 2 (S.D.N.Y. Jan. 9, 2013) (“[I]n analyzing the instant motion, the Court has disregarded averments in Plaintiffs 56.1 Response that are ... not supported by citations to admissible evidence in the record ... or that are improper legal arguments.”).
2. Plaintiffs Exhibits
Plaintiff has submitted over one thousand pages of emails, other contemporaneous documentation, transcripts of depositions he took and personal notes he apparently prepared in connection with this litigation.
The Court has reviewed and considered all of these materials.
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OPINION AND ORDER
RONNIE ABRAMS, District Judge:
Pro Se Plaintiff J. Claudel Cayemittes brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., against The City of New York Department of Housing Preservation and Development (“HPD” or “Defendant”), the sole remaining Defendant in this action. Before the Court is Defendant’s motion for summary judgment. For the reasons set forth below, the motion is granted.
BACKGROUND
A. The Summary Judgment Record
As is generally the case, the facts the Court has considered in connection with this motion derive from the evidence sub[242]*242mitted by the parties and from their statements made pursuant to Local Civil Rule 56.1. Before the Court sets forth the factual background of this case, however, it finds it appropriate, in light of the voluminous and unconventional nature of Plaintiffs submissions, to first define with some precision the scope of its review and the materials upon which it has relied in connection with this motion.
1. Plaintiffs Rule 56.1 Statements
Pursuant to Local Civil Rule 56.2 (requiring “Notice to Pro Se Litigant Who Opposes a Summary Judgment”) Defendant timely advised Plaintiff of the procedures governing summary judgment submissions, including that Plaintiff “may [not] oppose summary judgment simply by relying upon the allegations in [his] amended complaint” and that “[a]ny witness statements must be in the form of affidavits ... [and] based on personal knowledge stating facts that would be admissible in evidence at trial.” (Dkt. 51.) Defendant also timely provided Plaintiff with copies of the text of Federal Rule of Civil Procedure 56 and Local Civil Rule 56.1. Plaintiff was therefore adequately notified that “[e]ach statement by the ... opponent pursuant to Rule 56.1( [b]), including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(c).” Local Civ. R. 56.1(d).
Plaintiff has filed two 56.1 Statements that do not comply with these rules.1
The first of these submissions, which responds to Defendant’s 56.1 Statement, is properly comprised of a list of numbered paragraphs each of which “coneede[s]” or “dispute[s],” as the case may be, the fact contained in the corresponding numbered paragraph in Defendant’s submission. Regardless of whether a fact is conceded or disputed, however, Plaintiff proceeds to add, in a majority of these paragraphs, a supply of additional facts that are unsupported by admissible record evidence. See, e.g., Pl.’s 56.1 ¶¶ 18, 21, 30-33, 57. Additionally, many of these “facts” are, inter alia: speculative, see, e.g., Id. ¶ 58 (“Neither Carbine [n]or Hendrickson understood [P]laintiffs job as director of TPT/TLS.”); conclusory, see, e.g., Id. ¶47 (“By late February 2008, [P]laintiff had already been subjected to several retaliatory actions by Carbine for his complaints.”); and/or argumentative, see, e.g., Id. ¶ 82 (“At best this sounds like a glib take on the role of DAMP ... ”).
Plaintiffs second 56.1 Statement consists, according to Plaintiff, of additional “material facts [that] are not in dispute.” (PL’s 56.1 p. 1.) This submission, which runs a full sixty-eight pages, is not “short and concise” and is not organized into numbered paragraphs,' as the Local Rule requires. More fundamentally, it does not contain, for the most part, facts corroborated by admissible evidence, but rather, statements that are, inter alia: vague, see, e.g., PL’s 56.1 p. 52 (Carbine “made vague disparaging comments to others about [Plaintiffs job performance but [has] always been careful not to ever give specifics or provide any proof.”); conclusory, see, e.g., Id. p. 7 (“Aragon decided to evaluate [P]laintiff ... in order to retaliate against plaintiff ... ”); speculative, see, e.g., Id. p. 5 (“Carbine was not interested in learning the TPT or TLS programs”); relevant only to claims that (as explained below) have been dismissed as time-barred or otherwise legally insufficient, see, e.g., Id. p. 51 (“In 2002 Aragon summoned plaintiff [243]*243into his office and reprimanded him in error for something that plaintiff did not do.”); and/or personal attacks see, e.g., Id. p. 50 (“Since about 2005 HPD has had a cadre of morally corrupt managers who [are] shameless liars and eared only about their ego.”).
Despite these various infirmities, acknowledging that the various procedural rules attendant to opposing summary judgment may be challenging or confusing for a pro se litigant, the Court has reviewed Plaintiffs submissions in their entirety and has done its best to separate the wheat from the chaff. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir.2001) (“A district court has broad discretion to determine whether to overlook a party’s failure to comply with local court rules.”). Specifically, although Plaintiff has not submitted a declaration or other sworn statement in opposition to Defendant’s motion, the Court will consider the unsworn content in Plaintiffs 56.1 Statement, to the extent it is otherwise admissible. In so doing, the Court relies on the assumption that Plaintiff would have testified to such content had he complied with the governing rules. See Geldzahler v. New York Med. Coll., 746 F.Supp.2d 618, 620 n. 1 (S.D.N.Y.2010) (“[Djespite [plaintiff] having received the 56.2 Notice, we take into account his status as a pro se litigant and will consider the unsworn statements in his 56.1 Response on the assumption that he would have testified to these statements in his Declaration.”); Shah v. Kuwait Airways Corp., 653 F.Supp.2d 499, 506 (S.D.N.Y.2009) (Lynch, J.) (“[Tjhe Court will consider [plaintiffs] declaration, even though it is unsworn, on the assumption that, if its allegations were sufficient to raise an issue of fact, Shah would be given an opportunity to submit an affidavit in the proper form attesting to those allegations.”). By the same token, the Court has disregarded the content of Plaintiffs 56.1 Statements that it deems conclusory, speculative, irrelevant, argumentative, unsupported or otherwise inappropriate for consideration. See Shortt v. Congregation KTI, No. 10 Civ. 2237(ER), 2013 WL 142010, at * 1 n. 2 (S.D.N.Y. Jan. 9, 2013) (“[I]n analyzing the instant motion, the Court has disregarded averments in Plaintiffs 56.1 Response that are ... not supported by citations to admissible evidence in the record ... or that are improper legal arguments.”).
2. Plaintiffs Exhibits
Plaintiff has submitted over one thousand pages of emails, other contemporaneous documentation, transcripts of depositions he took and personal notes he apparently prepared in connection with this litigation.
The Court has reviewed and considered all of these materials. It notes, however, that it has not always been able to link them to the portions of Plaintiffs 56.1 Statements they are ostensibly intended to support. First, these materials have not been presented to the Court in any logical or convenient manner. Plaintiff has merely grouped together as “exhibits” documents that are only loosely thematically related, see, e.g., Pl.’s Ex. J (“Some Green Project [sic] that [P]laintiff worked on intermittently from about November 2007 to April 2008”), or have no substantive relationship to one another at all, see, e.g., PL’s Ex. L (“Various discovery items under heading of ‘PL’ for Plaintiff in Numerical Order”). Second, as noted above, Plaintiffs 56.1 Statement only intermittently cites to this documentation. Third, where Plaintiff has included a citation, it is with few exceptions not a citation to the exhibit itself, but rather to a Bates number, to a unique numbering system Plaintiff has applied to certain documents or to a vague description of the document. See, e.g., [244]*244PL’s 56.1 ¶ 19 (citing to “Mackie ESCF”); Id. ¶ 35 (citing to “outreach to Personnel in Nov. 2007”); Id. p. 6 (citing to “notes to self’); Id. p. 51 (citing to “John Spinelli letter where Aragon accused plaintiff of sabotaging his hiring of Spinelli”); Id. p. 56 (citing to “Loans”). Finally, Plaintiff occasionally appears to have intended to cite to submitted material, -but, perhaps inadvertently, has failed to include any cite at all. See, e.g., Id. p. 30 (citing to “See ...”).
In summary, in light of Plaintiffs pro se status, the Court has considered “the totality of the parties’ submissions in identifying disputed material facts and will construe those disputed facts in plaintiffs favor as is appropriate on summary judgment.” Shah, 653 F.Supp.2d at 501 n. 1 (citing Merritt v. Shuttle, Inc., 245 F.3d 182, 186 (2d Cir.2001)).
B. Factual Background
Plaintiff began working at HPD in September 1986 as a budget analyst responsible for communicating HPD’s funding needs to the Office of Management and Budget (“OMB”), formulating written requests to OMB and obtaining ultimate approval for HPD’s funding proposals. (Def.’s 56.1 ¶¶ 1-2.) In November 1999, Plaintiff became a “financial analyst” assigned to the Third-Party Transfer Unit in the HPD division then known as the Division of Anti-Abandonment, which was subsequently renamed the Division of Neighborhood Preservation (“DNP”).2 (Id. ¶ 3; Cayemittes Tr. 55.)
Also in November 1999, Plaintiff settled a race discrimination dispute with HPD arising from Plaintiffs removal from HPD’s budget office. (Rizvi Decl. Ex. P.) Pursuant to a term of the settlement agreement (the “1999 Settlement”), Plaintiff was promoted to Director of the Third-Party Transfer Unit (“TPT”), which he agreed to because “it fit [his] plans for [his] career.” (Id.; Cayemittes Tr. 41.) In that capacity, he “was responsible for running the [TPT] program [and] implementing the law that authorized the program.” (Id. 42.)
As of July 2001, in addition to his role as Director of TPT, Plaintiff became Director of the Tax Lien Sale Unit (“TLS” or, with TPT, “TPT/TLS”)3 (Def.’s 56.1 ¶ 12.) As [245]*245Director of TPT/TLS, Plaintiff, inter alia, “managed HPD’s tax lien sale work in coordination with [other City agencies],” worked with these agencies to “initiate several program improvements and innovations” and fielded “calls from City elected officials ... in affected districts,” and “represented HPD in negotiations with owner representatives in [cjourt.” (PL’s 56.1 pp. 2-3.) During the relevant period, he “reported] directly” to the Assistant Commissioner of DNP, William Carbine. (Rizvi Aff. Ex. D; Pl.’s 56.1 p. 2; Carbine Tr. 10-11.)
As Director of TPT/TLS, Plaintiff did not receive any complaints about his “job performance, lack of cooperation or teamwork” and Carbine “never formally or informally complained to [Plaintiff] about any aspect of his job performance.” (PL’s 56.1 pp. 4, 9.) Rather, Plaintiff received positive feedback for his management of TPT/TLS from “[m]ore than one Commissioner” and “other tax enforcement and anti-abandonment stakeholders” who “complimented [P]laintiff about the program intelligence he ... provided.” (Id. pp. 4-5.) Indeed, Carbine “often profusely praised [P]laintiff s work, especially before meetings with senior officials” and “told [P]laintiff that he was an outstanding administrator and a highly professional and excellent manager.” (Id. pp. 9,10.)
DNP Reorganizes and Plaintiff Becomes Director of Special Projects
In fall 2007, DNP underwent a “reassignment process” to address numerous “[p]ersonnel” and “supervisory issues” throughout the “whole division,” including certain issues relating to Plaintiff. (Carbine Tr. 62-66, 103.) As a result of the reassignment process, five of the six DNP directors, including Plaintiff, were rotated to different units “[t]o give a new fresh start to DNP”; “[n]obody was being singled out.” (Id. 63-71, 101-2.) Plaintiff describes this process as a “reshuffling.” (PL’s 56.1 ¶ 13.)
In an October 1, 2007 meeting, Carbine informed Plaintiff that, due to the reassignment, he would be removed from his position as Director of TPT/TLS and would become DNP’s Director of Special Projects. (Rizvi Decl. Ex. H.) Later that day, Plaintiff reacted to this news in an email to Carbine, stating:
I wanted to be clear about what you discussed w/me this afternoon: Due to a divisional reorganization, you said, there will be a “Round-Robbin” [sic] type setup where “everybody gets moved around” to perform different jobs. Under this arrangement, within three weeks, I will no longer be in my current position. Instead I am being reassigned as the new Director of Special Projects, which, I learned at the meeting, is the title currently occupied by Harriet Martin.
My new responsibilities will entail working on the new, upcoming Neighborhood Consultants RFP ... I will also be assigned to work on the “Green Project” [246]*246where “everything has to be green” and ... on “other smaller projects.”
For now, I have these questions: How long is this “Round Robbin” [sic] to last? Why am I being taken from a position I have been effective performing over the years and quite happy doing? You mentioned that there are problems in my unit. Other than [one issue] that we have discussed over the past year, I have not been aware of any problems, especially anything else that impacts the unit’s production. My group has worked productively and harmoniously as a team since 2000. Will I be informed what these “problems” are as well be given an opportunity to fairly address? What does this mean to me and my career?
As I explained, given a choice I would prefer a position where the job and its responsibilities are more clearly defined and in line w/[ ]my career goals.
(Id.)
As part of his reassignment to Director of Special Projects, Plaintiff “lost [his] supervisory role.” (Cayemittes Tr. 58; Carbine 96-97.)4 He also believed the reassignment signified a loss of “status” and constituted a “demotion.” (Cayemittes Tr. 53; Pl.’s 56.1 p. 14.) He went from an “administrative, managerial, supervisory and high prestige position to one that was less desirable.” (PL’s 56.1 p. 16.)
On October 1, 2007, Carbine told Plaintiff that his “removal from TPT/TLS would continue as planned” but would be “postponed another few weeks.” (Id. p. 14.) Plaintiff responded by telling Carbine that he intended to “complain about his removal up the City hierarchy.” (Id. p. 16.)5
HPD’s Search for Positions of Interest for Plaintiff
On October 11, 2007, Plaintiff met with Carbine and David Schmid, DNP’s Director of Operations, (Cayemittes Tr. 56), to discuss Plaintiffs new role as Director of Special Projects. (PL’s Ex. O D002793.) Schmid documented the meeting as follows:
[Plaintiff] stated that he did not want to appear unreasonable by dismissing the offer [for the position of Director of Special Projects], but did not want to work in OPS [Office of Preservation Services] if given a choice. He was told that the other directors who are being switched have not been given a choice on placement, but [Plaintiff] was granted time to make a decision on whether he would willingly accept the position. In the meantime, [Carbine] offered to reach out to help [Plaintiff] find another position, if [Plaintiff] would tell him what he was interested in. [Plaintiff] stated that he was unsure, but that he had previously mentioned working in Development.
(PL Ex. O. at D002793.) This conversation is consistent with other extensive record evidence indicating that, following Plaintiffs reassignment to the Director of Special Projects position, Carbine and others [247]*247sought to find Plaintiff other positions at HPD:
• On October 12, 2007, Carbine offered Plaintiff the directorship position of the DNP Queens Borough Office. (Rizvi Decl. Ex. K.) In an email of the same date, Plaintiff responded to the offer, stating: “Thank you Bill for this offer. While I am appreciative and remain grateful for this and everything else that you have done, I have to decline. This is just not t[h]e direction I want to go at this point in my career.” (Id.; Pl.’s 56.1 p. 19.)
Plaintiff emailed a colleague the same day, advising her that “[Carbine] ... offered me the job running the Queens Office ... I didn’t want to appear difficult by dismissing that outright, especially since I believe that it would be a demotion.” (PL Ex. L P# 21/1.) He later testified that the Queens offer was “almost insulting” and that he had been “warned that [it] was not legitimate and a possible set up, that he was being set up to fail and blame for the office’s failings” and that “the decision had already been made to eventually close that office.” (Cayemittes Tr. 101; PL’s 56.1 ¶ 40, p. 37.) Although Plaintiff does not state who “warned” him or how he learned of this alleged decision, he claims to have “been in Senior staff meetings where the lack of a workload in the [Queens] office was a recurring theme.” (Cayemittes Tr. 112-113; PL’s 56.1 ¶ 40.) Plaintiff therefore viewed the Queens offer as an attempt to “get rid of him” because he was “a problem” and he hadn’t “accepted fully their plan” to reorganize. (Cayemittes Tr. 101, 113.)
• On October 15, 2007, Carbine urged Plaintiff to contact Elaine Calos, the “Assistant Commissioner in charge of the of Preservation Finance ... division within the Office of Development about a job in her area that was comparable to the TPT/TLS position.” (PL’s 56.1 ¶ 47, p. 19.) Calos met with Plaintiff the same day and told him she would “see what position she could fashion in Finance for [P]laintiff, given his background and experience.” (Id. p. 20.) In November 2007, however, Calos advised Plaintiff that “she could not find him the right position that was appropriate for him in Finance at the time.” (Id p. 22.)
• On October 23, 2007, Schmid recorded in an email another meeting he had that day with Carbine and Plaintiff, stating in part that they: “again met ... to discuss [Plaintiff’s] new projects and assisting with a transition phase. [Carbine] explained to Plaintiff that Preservation Finance was working to create a position for him, but that for the time being he was expected to start working on his new DNP projects [i.e., as Director of Special Projects] and provide transition assistance to the new TPT director when required.... [Plaintiff stated] that he was insulted by the job offer and ... stated he would go to disciplinary.” (Pl. Ex. O. at D002793.)
Plaintiff also memorialized the October 23, 2007 meeting in an email, stating: “Had a transitional meeting put on my calendar w/Bill.[ ] He began reading off a list [of] projects I will be assigned to.[] As of the latest, he said that he spoke w/DEV[elopment], ‘they think they can find something for me but that it would [take] time to work something out[ ] a possible Dev job.’ In the meantime I will be expected to cooperate w/the transition. I mentioned that my major concern at this point is my next [248]*248job and my career, which is why I have been asking for this in writing [i.e., a description of Plaintiffs Director of Special Projects position] is s[o] that I can begin to have an appreciation of duties, expectations, etc. Bill said that I was approaching this all wrong and that people were trying to help me but that I was acting like a victim. He said that I was not making any sense that these jobs are legitimate assignments that will open up avenues for my career. I told him that one of the reasons I wish to have this in writing is so that I can make an analysis of how helpful this all really is to my career. He said that he was insulted!, that he was angry now and that this meeting was over, adding that ‘you will see these meetings ... on your calendar.’ ” (PL Ex. P. D001946.)6
Despite these exchanges, Plaintiff maintains that he “in fact was not given any choice” as to DNP’s late-2007 reorganization. (PL’s 56.1 p. 19.)
Plaintiff’s E-mail to HPD Commissioner Shaun Donovan
On December 3, 2007, Plaintiff sent a lengthy email to HPD Commissioner Shaun Donovan (“Donovan Email”) regarding his reassignment. The Donovan Email stated in part:
I was relieved of my position in the Third Party Transfer and Tax Lien Sale programs and relegated to a junior-level Director of Special Projects. The offered reason was “a big reorganization of the division’s field offices to address the improprieties.” Problems with communications are thrown in when explaining my removal. The available information though is that it was a coordinated taking away of a strategic job. My work is not field-based, and I am the only one who without cause is losing supervisory, managerial and administrative position and whose new role remains unclear ... I believe the action ... was retaliatory, race-based and because of my national origin.
(Rizvi Deck Ex. N.) On January 13, 2008, Donovan responded, stating that he had “discussed this with a number of people and believe[d] it [wa]s something [Plaintiff] need[ed] to resolve directly with [his] supervisor.” (Id.)
Plaintiff’s Work as Director of Special Projects
On October 24, 2007, Carbine met with Plaintiff to “continue a discussion about transition to his new responsibilities” as Director of Special Projects. (PL Ex. P D002682.) As Carbine recorded in an [249]*249email, Plaintiff “mentioned that he would rather be transferred to some outpost of OPS, where he wouldn’t have to do anything, but that he was a soldier and would do his new assignment under protest.” (Id.)
Following another meeting with Plaintiff on October 30, 2007, Carbine emailed Schmid to report that:
at our new regular one on one with Claudel, he said the following: Wouldn’t it be easier to transfer out somebody as difficult as me ... I’m too dense to understand what you’re asking me to do so put it in writing ... This is not anything I’m interested in and I’m not as smart as you think I am, I don’t understand, etc.
We are reviewing his progress on several projects that I had previously explained to him in detail. They are all important to the future of the division and, in my opinion, very interesting.
(PL Ex. P D002628.)
The record reflects that Plaintiff was indeed tasked with several projects after he was reassigned. The following summarizes the evidence relating to these projects, including Carbine’s and Plaintiffs views as to Plaintiffs performance of them:
• “Loan Project”: Plaintiffs first pro- • ject in his new role was the so-called “Loan Project.” (Pl.’s 56.1 p. 22), for which Plaintiff was required to “find out what’s going on with the loan portfolios throughout the city at the different site offices and work with the development part of the agency and then try to come up with a loan product.” (Cayemittes Tr. 74-75.)7 Carbine described the Loan Project as an “important,” “tough” project, and he hoped Plaintiff “would be would be able to give it the attention it needed to bring it to the next level.” (Carbine Tr. 114.) Plaintiff largely confirmed this sentiment, testifying that he was told that “no one has been able to do anything about loans for several years” and that “[i]f [he could] do something about loans ... [he would] be a hero.” (Cayemittes Tr. 74.)
Plaintiff and Carbine disagree as to Plaintiffs performance on the Loan Project. Plaintiffs submissions detail extensively the work he did on the Project, discussing “key” “accomplishment[s]” and “milestone[s],” and attaching “samplings” of work he did in connection with it. (PL’s 56.1 pp. 25-28.) Plaintiff claims that Carbine told him he was “happy with the direction of the [Project” and that Plaintiff was “doing fine” with it, but then “began to ignore [P]laintiff s updates about the ... project.” (Id. pp. 24, 26, 28.) Carbine, however, believed that Plaintiff “didn’t [250]*250really take [the Loan Project] on enthusiastically, which really meant you couldn’t do what was required” and that Plaintiff “could have done more to produce the loan project.” (Carbine Tr. 112, 222.) Carbine removed Plaintiff from the Loan Project in March 2008. (Pl.’s 56.1 p. 29.)
• “Green Project”: During the third week of November 2007, Plaintiff also began working on the “Green Project,” an environmental initiative whereby Plaintiff was to make “everything ... green” and to “come up with ways that [DNP] could promote energy efficiency, water savings, clean burning, et cetera. (Cayemittes Tr. 82-84; PL’s 56.1 p. 22; Carbine Tr. 82.)
Carbine testified that Plaintiff did not “embracef]” the Green Project. (Carbine Tr. 108.) Plaintiff maintains that the Green Project was a “ ‘concept project’ that was yet to be defined” and that Carbine accordingly directed Plaintiff to “take a relaxed, wait and see approach where he, Carbine, would be guiding next steps.” (Pl. 56.1 ¶ 37, pp. 22, 40.) Nonetheless, Plaintiff testified that he “start[ed] reading things” and “going online asking people” about similar initiatives. (Cayemittes Tr. 83-84; PL’s Ex. J.)
• “Community Group Contracts Project”: At some point in early 2008, Plaintiff was tasked with a so-called “Contracts assignment,” for which his “charge” was “this new project ... where we have all these contracts out there ... that we don’t know where things are and would like them in one table so that this information can be handy at meetings ... especially with the groups.” (PL’s Ex. L #25 p. 12.) Carbine described this project as “very important.” (Id. # 4 p. 4.)
On June 20, 2008, Carbine noted in an email to himself that “Unfortunately, Claudel showed almost no progress on his assignments at today’s one-on-one. The contract summary chart was incomplete and incorrect. He asked the same questions he asks every week.” (PL’s Ex. O D003461.) In an email the same day, Carbine removed Plaintiff from the Community Group Contracts Project “due to the slow progress [he] ha[d] made” and “reassigned” it. (PL’s Ex. L. # 4 p. 4.) Plaintiff responded with a lengthy summary of the work he performed on the Project, to which Carbine replied, “You put more effort into this email than you did on the assignment.” (Id. #4 p. 4.)
• “Planning Zones Project”: Plaintiff was also tasked with collecting data for DNP “planning zones,” which were apparently “crucial” for a new RFP. (PL’s Ex. P. D003473; Pi’s Ex. O D003461.) In a May 23, 2008 email to himself, Carbine noted that Plaintiff had “made very limited efforts ... to collect important data for the planning zones.” (PL’s Ex. P. D003473.) In a similar June 20, 2008 email, Carbine further noted that Plaintiff “has been unable to get the appropriate maps and ... socio-economic data for the Division’s planning zones.” (Pi’s Ex. O D003461.) In the June 20, 2008 email referenced in the entry above, Carbine demanded of Plaintiff that “[t]he calculation of CD [Community Development] eligibility in DNP Planning Zones must be complete ... next week and you must make significant progress on the socio-economic research for these zones by the time I return from vacation.” (PL’s Ex. L. # 4 p. 3.)
[251]*251• “Budget Books Project”: In a May 2, 2008 email to himself, Carbine noted that Plaintiff “was given the assignment to update the budget briefing books for DNP on April 17. It was explained that the assignment was one of the highest importance and due on April 28. The update was not submitted by Claudel until April 28 and was not complete. David Schmid had to redo the update to make it appropriate for submission.” (PI. Ex. P D003472.)
In an email to him self, also dated May 2, 2008, Plaintiff described the same conversation, as follows: “Had a 2 o’clock conference w/ [Carbine]. He said first that the Briefing document was late and not complete. I tried to explain that it wasn’t beforef.] [H]e said that that’s (the issue of the assignment being late) not important anyway [sic]. He mentioned that he thought that I should be more communicative but did not elaborate what he meant and why he felt I was not being communicative. I did not wish to be called ‘confrontational’ so I said nothing ...” (PL’s Ex. L # 23 p. 74.)
• “Borough Consultations Project”: As Carbine explained this Project: “Every year the community boards around the city ... have an opportunity in the city’s budget process to ask questions or ask for reports from different agencies ... it’s a very big operation and it goes a couple of weeks. We have to go to these meetings to answer questions. Prior to going to the meetings the questions are submitted and the answers are prepared and made into these books by the various agencies ... it’s quite a bit of work.” (Carbine Tr. 253-54.) Carbine tasked Plaintiff with gathering the relevant information from various sources. (PL’s Ex. G D002152.)
In an effort to gather the prepared answers, Plaintiff sent an August 8, 2008 email, attaching a “list of questions for the Queens Community Planning Boards,” to various recipients asking them to “provide the portion of the attached that pertains to your area.” (Id. D002151.) Carbine responded immediately to the email, stating: “Claudel, this is not the way to handle this. Please withdraw your e-mail immediately, read the questions, determine which are for DNP and call the relevant individuals for the information. Next write the answers and show them to me. Thank you for your cooperation.” (Id.)
Carbine viewed Plaintiffs email as “completely inappropriate” because Carbine “pushed the work off on others” including those “outside of D[N]P” some of whom were “high ranking.” (Carbine Tr. 254.) Plaintiff, by contrast, contends that he had been sending similar emails “for several years” and “tried to perform this particular task in the exact same manner that ... it had been successfully completed in the past by [P]laintiff and by others.” (PL’s 56.1 p. 37, 43.)
On the whole, Carbine testified that Plaintiff was “not cooperative” following his reassignment and demonstrated a “resistance to ... what needed to be done in that role.” (Carbine Tr. 108-109.) He described Plaintiff as “hostile” and made general reference to “some e-mails [that] got sent that were sarcastic about assignments.” (Id. 109.) He testified that Plaintiff had ultimately “shown that [he] didn’t want the job” by way of the “things that [he] said” and “how [he] took on the responsibilities or didn’t take on the responsibilities.” (Id. 204.)
Initial Discussions Regarding a Position in the Division of Alternative Management Program
Sometime in late 2007, Anne-Marie Hendrickson, the Associate Commissioner [252]*252of HPD’s Division of Alternative Management Program (“DAMP”), and Carlecia Taylor, Hendrickson’s Director of Operations, “had a need for some Senior Project Managers” in DAMP “who had a background in finance and real estate.” (Hendrickson Tr. 8.)8 Hendrickson therefore “started to ask around the agency to see if there were any people interested in coming to work for [her] and [Taylor].” (Id. 8.)
Around this time, Hendrickson spoke to Carbine and learned that Plaintiff was a “potential [person] that would be available for [Taylor]” at DAMP. (Id. 11.) Carbine, who up until this point had been “actively looking for something for [Plaintiff]” responded that he thought Plaintiff would be a good fit for the DAMP position, (Carbine Tr. 193; Hendrickson Tr. 20), although Plaintiff claims, for reasons unclear, that “Carbine had known tha[t] [he] would not be interested in working at DAMP.” (Pl.’s 56.1 p. 32.)
In February 2008, Carbine told Plaintiff to reach out to Hendrickson. Carbine testified that, although the DAMP job was not in development as Plaintiff had hoped,9 “it involvefd] the redevelopment of property and underwriting et cetera” which was “[something that [Plaintiff] had expressed to [Carbine] that he had an interest in.” (Carbine Tr. 197.) Plaintiff, however, “had no intention of contacting [her] because he was not interested in work at her area.” (Cayemittes Tr. 86-87; PL’s 56.1 ¶ 43, p. 47.) Hendrickson instead reached out to Plaintiff and told him, “I have your job for you.” (Cayemittes Tr. 88.) Despite his professed disinterest, Plaintiff went to DAMP to “interview with her people.” (Id.)
After speaking with Plaintiff, Hendrickson continued to believe he would be a good fit at DAMP because he was “good at follow up, ... [and] had a pretty good real estate, and a pretty good finance background.” (Hendrickson Tr. 28.) The open position there, Senior Project Manager, was, according to Hendrickson “an extremely important position” that “involve[d] getting buildings out of the city ownership” and “getting [them] rehabbed.” (Id. 59.) In her view, the position was “just as important [a] position as director.” (Id.) Although Hendrickson agreed that Plaintiff would not be reporting directly to her as Assistant Commissioner but rather to Taylor, she believed a transfer from Plaintiffs current position as Director of Special Projects would be a “lateral” move. (Id. 61.)
Plaintiff “doubts seriously” that his position in DNP and the open DAMP position “are even remotely similar” in part because “the position reports to a director of operations, and was not administrative, managerial, supervisory or prestigious, highly desirable position like the TPT/TLS position.” (PL’s 56.1 ¶ 68, p. 63.)
Plaintiff claims Hendrickson told him he should transfer to DAMP because “they just d[id]n’t want [him]” at DNP. (PL’s 56.1 p. 38.)
[253]*253 Congratulatory Letter from Donovan
On February 14, 2008, Donovan wrote Plaintiff a letter (cc’ing Carbine and others) in which he congratulated Plaintiff for receiving a commendation from a member of the public. (Rizvi Decl. Ex. 0.) The letter noted that Donovan had received “several” complimentary letters about Plaintiff from members of the public and thanked Plaintiff for “taking customer service to another level.” (Id.; PL’s 56.1 p. 8.)
When Plaintiff “wrote back to Donovan asking him about the other commendations that he mentioned in his letter,” Carbine allegedly “told plaintiff that ‘someone could easily interpret your letter to Shaun like you were harassing people.’ “What exactly are you trying to do?’ ” (Pl.’s 56.1 ¶ 52.) The same day, Plaintiff claims that:
an angry Carbine snapped at [PJlaintiff and told him that he would stop signing for [him] half-hour lunches which [he] had arranged with his supervisors to address [his] long commute and babysitting needs. When [P]laintiff protested and explained the purpose of the half-hour arrangement, a callous Carbine responded that he did not care what [P]laintiff did but that he will not sign for half-hour lunches ... adding ‘oh, yeah, you’re off Green [Project] too.’ Carbine did not sign for [P]laintiff s half-hour lunch for the remainder of [Plaintiffs tenure in DNP, even though prior to February 14 Carbine and his predecessors all allowed [him] this benefit.
(Id. pp. 30-31.)
Plaintiff’s March 10, 2008 Email to Deputy Mayor Robert C. Lieber
On March 10, 2008, Plaintiff sent a lengthy email to the Deputy Mayor for Economic Development, Robert C. Lieber (“Lieber Email”). (Rizvi Decl. Ex. P.) In the Lieber Email, Plaintiff again complained that his transfer from his TPT/ TLS position was, inter alia, “retaliatory, to damage [Plaintiffs] career and reputation, and because of [his] race and national origin.” (Id.) Plaintiff explains that he emailed Lieber because “[flollowing Donovan’s January 13, 2008 response to [his] complaints about unlawful discrimination and retaliation, the next step up the corporate hierarchy was the deputy mayor, Donovan’s direct supervisor.” (PL’s 56.1 ¶ 54.) Plaintiff further testified that the reason he emailed Lieber was because he “was still complaining about being removed” from the TPT/TLS position and about being “assigned nothing of substance to further [his] career,” so he “was going through the channels and then [he] had reached the deputy mayor.” (Cayemittes Tr. 93.)10
On March 27, 2008, HPD’s internal Equal Employment Opportunity (“EEO”) Officer Stanley Whing contacted Plaintiff regarding the Lieber Email and the two scheduled a meeting for April 1, 2008. (PL’s 56.1 p. 45.) When Plaintiff informed Carbine of his planned meeting with Whing, Carbine allegedly responded that “this complaining is not going to end well, Claudel.” (Id.)
Further Discussions Regarding Plaintiff’s Transfer to DAMP
On April 4, 2008, Plaintiff and Taylor discussed his transferring to a position at DAMP. (Rizvi Decl. Ex. M.) That discussion confirmed for Plaintiff that he was “not interested in the DAMP position [254]*254[Taylor] discussed” but “out of consideration and courtesy [he] did not say that right then to her.” (Id.) Specifically, according to Plaintiff, “the position she described was junior to what [Plaintiff had] done [at DNP] and that even people who worked under [him] had more responsibilities.” (Id.) Taylor also apparently referred to the position as a “project/program manager” position and that, before considering Plaintiff, Taylor “had requested a Fellow to undertake it.” (Id.) She also allegedly told Plaintiff that there “was no work” for him at DAMP “at his skill level” (i.e., that of a “high level professional ]”). (Pl.’s 56.1 p. 61.)
Later that afternoon, Carbine called Plaintiff into his office and told him “he understood that [Plaintiff] had accepted a position in DAMP and that effective in two weeks [Plaintiff would] be leaving [Carbine’s] division.” (Rizvi Decl. Ex. M.) Plaintiff responded that “this was the first [he] heard of this” and described his earli-. er meeting with Taylor. (Id.) He and Carbine then discussed “choice versus not having one” and Carbine “said that he wanted [Plaintiff] to move to DAMP.” (Id.) When Plaintiff “told him that [he] was not interested in the DAMP position,” Carbine said, “Okay, and that he would talk to [Hendrickson].” (Id.)
On April 7, 2008, after speaking with Hendrickson, Carbine called Plaintiff into his office and “told [him he] had to go to DAMP.” (Id.; PL’s 56.1 p. 46.) Plaintiff relayed the foregoing to Whing in an email he sent that afternoon, concluding with the following:
There are several areas inside HPD where I believe I can make a contribution. I have not accepted a position in DAMP. My being forced to go to DAMP at this point in this capacity is not a serious attempt to get work done. Instead it is partly punishment of my recent letter to Deputy Mayor Lieber.
(Rizvi Decl. Ex. M.)
The following afternoon, Plaintiff sent another, longer email to Whing, elaborating on his employment situation. He explained:
For several months now, Bill Carbine has been trying to secure an appropriate position for me outside of OPS [Office of Preservation Services]. In our discussions about this I have been my interest in going [sic] to Development very clear. TSD [presumably, Technology and Strategic Development] would be the other choice if the right opportunity became available.
Last October I met w/[ preservation Finance but there was no available fit. Last February Bill [Carbine] again directed me to contact New Construction and Management and Disposition in connection with opportunities in those areas. At the time I said nothing about Management and Disposition because I did not want to come off as ungrateful or in any[]way negative. Before I could contact the managers, Associate Commissioner Hendrickson called me and told me she had a position for me ... Following an interview w[] one of her managers, I received another call from her and I informed her that I was not interested in the position that her manager discussed w/me. This all happened by the end of February. On my reporting this to my supervisor he assured me that something better would become available.
I eventually met w/New Construction on March 12th and from there met w/Assistant Commissioner Walters on March 26th [but there was not] an appropriate position for my background, experience and level. He mentioned the several other areas in Development where there [255]*255are possibilities ... he also mentioned opportunities he knew about in management and Disposition....
Last week I heard back from Commissioner Hendrickson who advised she had another position that she wanted me to discuss w/her manager. I met with [Taylor] on Friday, April 4. We discussed a position in her area ... The DAMP position described to me ... is of absolutely no interest to me for several reasons. Staff who have worked under me for example have had more substantive responsibilities.11
I was taken aback by the recent turn of events. On Friday, Bill [Carbine] asserted that he had heard that I “accepted the DAMP position.” I then told him that was not true. He then said that I had to report to DAMP.... When I made it clear ... that I did not accept that DAMP job, he abruptly ended the meeting asking me if I was coming to work on Monday and Tuesday. Yesterday morning, I was summoned to his office and [again] he repeated what he said Friday that I had to report to DAMP.... Earlier today I spoke w/Commissioner Hendrickson who said that I had to come to DAMP as the “paperwork” has [“]already started.” During our talk she cited that bill wanted to do me a favor ... my not having any work to do in his division to her division where she has work for me. How did it come that “I have no work” here in DNP?
On April 9, 2008, Deputy Commissioner of the Office of Preservation Services Luiz Aragon sent an email to Carbine noting that Plaintiffs DAMP transfer was put on hold. (Rizvi Decl. Ex. Q.)
Plaintiff’s Office of Equal Employment Opportunity Complaint and Subsequent Investigation
On April 10, 2008, Plaintiff filed an internal complaint with the HPD Office of Equal Employment Opportunity (“EEO”) against Carbine alleging discriminatory treatment on the basis of race, color, national origin and retaliation in opposition to Plaintiffs past and current EEO complaints (the “EEO Complaint”). (Rizvi Decl. Ex. T.)12 The following day, Whing sent a memorandum notifying Carbine about the EEO Complaint. (Rizvi Decl. Ex. U.)
Whing conducted an investigation into the EEO Complaint during which, he testified, he “interviewed enough people to give [him] a good sense of what was going on” and “got an understanding of the totality of the issues.” (Whing Tr. 27-28.) On August 4, 2008, Whing issued a report to Donovan for final review. (Rizvi Decl. Ex. C.) The report concluded that Plaintiffs allegations were unsupported. (Id.) On August 18, 2008, Donovan approved [256]*256Whing’s final determination, and Whing so notified the parties. (Id.)
Plaintiff’s Ultimate Transfer to DAMP
Following the EEO Complaint, Plaintiff continued work as DNP’s Director of Special Projects. (Cayemittes Tr. 114.) As discussed above, during this time, Carbine lodged various criticisms of Plaintiffs performance on these projects — for instance, his early-2008 criticism of Plaintiffs work on the Loan Project (ultimately leading to Plaintiffs removal from that project), his May 2008 critique of Plaintiffs work on the Budget Books Project and his June 2008 removal of Plaintiff from the Community Group Contracts Project. Plaintiff also emphasizes that, during this time, Carbine reprimanded Plaintiff for “working behind locked doors.” (PI. Ex. P D003474.)
Plaintiff was formally transferred to DAMP on September 15, 2008. (PI. Tr. 114; Rizvi Decl. Ex. Y.) Although his salary remained the same, Plaintiff was immensely dissatisfied with his work there. (Cayemittes Tr. 81, 145; PL’s 56.1 pp. GIGS.) He testified that, on the “second or third day” after his arrival, Taylor told him she had been “avoiding” him because DAMP did not “have any work” for him. (Cayemittes Tr. 122.) Indeed, Plaintiff states that he “spent several months— easily more than 90 percent of his time — in DAMP with nothing to do” and had “no work to do from September 2008 to November 2008.” (PL’s 56.1 pp. 66-67.) Plaintiff states that at DAMP he was “ignored and isolated.” (Id. p. 64.) Taylor allegedly “avoid[ed] him because she did not want to talk about work” and Plaintiff “had to rely on secretaries to find out what was going on.” (Id.) “Attempts to find out where he stood were fruitless,” Plaintiff claims, because “Hendrickson was never available.” (Id.) This was “part of a coordinated effort on the part of DAMP officials ... to frustrate [him] and continue to destroy his career.” (Id.)
In November 2008, Taylor’s last day in DAMP,13 she sent Plaintiff a new description of his job responsibilities, which he would conduct under the title of “Senior Policy Analyst” (Rizvi Decl. Ex. Z; PL’s 56.1 ¶ 83.) Plaintiff states that he had no experience in any of the areas listed in the description and, in any event, he was “never given any work in DAMP that came close to any of the lofty job elements that Taylor sent to [him].” (PL’s 56.1 ¶ 84, p. 65.)14 Plaintiff asserts that he is now merely a “de facto project manager” at DAMP “reporting to very young people.” (PL’s 56.1 ¶ 81.)
C. Procedural History
Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission against HPD (“EEOC Charge”) on November 24, 2008. (Rizvi [257]*257Decl. Ex. AA.) Plaintiff alleged in the EEOC Charge that HPD discriminated against him on the bases of his race (African-American), color (black), national origin (Haitian), and unlawfully retaliated against him in violation of Title VII, (Id.) On August 12, 2010, the EEOC closed its file and issued Plaintiff a Right-to-Sue Letter, which stated that the EEOC was unable to conclude a violation had occurred. (Id. Ex. BB.)
Plaintiff filed a pro se complaint in this Court on November 10, 2010, which he amended shortly thereafter on January 10, 2011. (Dkts. 1, 5.) His Amended Complaint asserts claims of discrimination and retaliation against HPD, Carbine and other of Plaintiffs supervisors pursuant to Title VII. Plaintiff also asserted a claim for Intentional Infliction of Emotional Distress. (Dkt. 5.)
On November 10, 2011, 2011 WL 7178736, Magistrate Judge Theodore H. Katz issued a Report and Recommendation (“Report”) recommending that U.S. District Judge George B. Daniels, to whom this ease was previously assigned, dismiss Plaintiffs Amended Complaint in large part. (Dkt. 20.) Specifically, the Report recommended the Court dismiss all Plaintiffs claims “except for his claim [against HPD] that in September 2008 he was transferred to the DAMP Division in retaliation for his 2008 EEO [C]omplaint.” (Report 16.) In an Order dated February 9, 2012, 2012 WL 406915 (“February 9 Order”), Judge Daniels adopted the Report in its entirety. (Dkt. 28.)
The Court’s role, therefore, is to determine whether that remaining claim, broadly construed, survives summary judgment. On review of the summary judgment record, the Court concludes it does not.
STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A fact is ‘material’ for these purposes when it ‘might affect the outcome of the suit under the governing law,’ ” and “[a]n issue is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d Cir.2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “A court reviewing a motion for summary judgment must ‘construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.’ ” Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir.2008) (quoting Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.2003)).
In reviewing a motion for summary judgment involving a non-moving, pro se plaintiff, a court “liberally construe[s]” the materials submitted by the pro se litigant, “reading such submissions to raise the strongest arguments they suggest.” Bertin v. United States, 478 F.3d 489, 491 (2d Cir.2007) (quotation marks omitted). A plaintiffs pro se status, however, does not relieve him from the usual requirements of summary judgment. Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir.2003); Brown v. City of New York, No. 11 Civ. 6379(KBF), 2013 WL 4713561, at *3 (S.D.N.Y. Aug. 27, 2013) (“[E]ven pro se plaintiffs must offer some evidence that would defeat a motion for summary judgment.”).
DISCUSSION
Title VII prohibits retaliation against an employee “because he has opposed any practice made an unlawful employment [258]*258practice by this subchapter, or because he has made a charge ... in an investigation, proceeding, or hearing under this subehapter.” 42 U.S.C. § 2000e-3(a). Title VII retaliation claims follow the familiar three-part burden-shifting analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973):
To make out a prima facie case of retaliation, a plaintiff must make four showings: that (1) [he] engaged in a protected activity; (2) [his] employer was aware of this activity; (3) the employer took adverse employment action against [him]; and (4) a causal connection exists between the alleged adverse action and the protected activity. Once a prima facie case of retaliation is established, the burden of production shifts to the employer to demonstrate that a legitimate, nondiscriminatory reason existed for its action. If the employer demonstrates a legitimate, non-discriminatory reason, then the burden shifts back to the plaintiff to establish, through either direct or circumstantial evidence, that the employer’s action was, in fact, motivated by discriminatory retaliation.
Summa v. Hofstra Univ., 708 F.3d 115, 125 (2d Cir.2013) (internal citations and punctuation omitted).
The Court agrees with HPD that Plaintiffs retaliation claim falters at the prima facie stage.15
HPD does not expressly contest that Plaintiff has satisfied the first two prongs of his prima facie case. Nor could it reasonably do so. Plaintiffs EEO Complaint, filed on April 10, 2008, clearly constitutes participation in a protected activity. Alston v. N.Y.C. Transit Auth., 14 F.Supp.2d 308, 311 (S.D.N.Y.1998) (“Plaintiffs filing and maintenance of her internal EEO complaint certainly put the NYCTA on notice that she was engaged in statutorily protected activity.”). Plaintiffs December 3, 2007 Donovan Email and March 10, 2008 Lieber Email also constitute protected activities. Hubbard v. Total Communications, Inc., 347 Fed.Appx. 679, 681 (2d Cir.2009) (“[An] informal complaint of discrimination is enough to satisfy the protected activity requirement under Title VIL”); Kotcher v. Rosa & Sullivan Appliance Ctr., 957 F.2d 59, 65 (2d Cir.1992) (“[A]n internal complaint to company management ... is protected activity within the policies of Title VII.”). There is likewise no issue as to whether HPD knew of these protected activities. Gordon v. N.Y. Bd. of Educ., 232 F.3d 111, 116 (2d Cir.2000) (“Neither [the Second Circuit] nor any other circuit has ever held that, to satisfy the knowledge requirement, anything more is necessary than general corporate knowledge that the plaintiff has engaged in a protected activity.”).
HPD does dispute, however, that Plaintiff can establish the third and fourth elements of his prima facie case — i.e., that he [259]*259suffered an adverse employment action under circumstances giving rise to an inference of discrimination. It is to these elements that the Court now turns.
Adverse Action
The requirement of a materially adverse employment action reflects the principle that “Title VII does not protect an employee from ‘all retaliation,’ but only ‘retaliation that produces an injury or harm.’ ” Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 569 (2d Cir.2011) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). In Burlington Northern, the Supreme Court described a “material adverse action” as follows: “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” 548 U.S. at 68, 126 S.Ct. 2405. Still, “[ajctions that are ‘trivial harms’— i.e., ‘those petty slights or minor annoyances that often take place at work and that all employees experience’ — are not materially adverse.” Tepperwien, 663 F.3d at 568 (quoting Burlington Northern, 548 U.S. at 68, 126 S.Ct. 2405). As the Second Circuit recently stated, in the summary judgment context, courts must be mindful that “material adversity is to be determined objectively, based on the reactions of a reasonable employee.” Rivera v. Rochester Genesee Reg’l Transp. Auth., 702 F.3d 685, 698-99 (2d Cir.2012) (citations and punctuation omitted). It cautioned, however, that “context matters, as some actions may take on more or less significance depending on the context.” Id. at 699.
Plaintiffs primary arguments are that “(1) his transfer from Director of [TPT/ TLS] to Director of Special Projects on about November 9, 2007 [and] (2) his transfer from DNP to little to no work and the ensuing confusion about what his title is in DAMP on September 15, 2008 ... would dissuade a reasonable worker from making or supporting a charge of discrimination.” (Opp’n 31.)
As to the first argument, Judge Daniels already concluded that a retaliation claim premised on Plaintiffs reassignment to Director of Special Projects in late-2007 was timebarred. (February 9 Order 11.) In any event, the argument fails on the merits. Plaintiff was reassigned from the TPT/TLS position to the Special Projects position as part of a “rotation” or “reshuffling” involving five DNP directors. After that process, Plaintiff remained within DNP, reported to the same supervisor (Carbine) and apparently received the same salary, evidence that indicates that Plaintiffs reassignment was nothing more than an alteration of his job responsibilities. See Staff v. Pall Corp., 233 F.Supp.2d 516, 533 (S.D.N.Y.2002) (plaintiffs “transfer was but one part of a broad company reorganization which involved shifting tasks between different departments, and with that shift in tasks, a shift in the placement of certain employees. Indeed, [plaintiff] was not the only employee transferred from R & D.”), aff'd, 76 Fed.Appx. 366 (2d Cir.2003).
It is true, of course, that retaliatory transfers are “not limited to pecuniary emoluments,” and can arise from a “discriminatorily-motivated diminution of duties.” Preda v. Nissho Iwai Am. Corp., 128 F.3d 789, 791 (2d Cir.1997) (citation omitted); see also Harris v. City of New York, No. 03 Civ. 6167(DLC), 2004 WL 2943101, at *4 (S.D.N.Y. Dec. 21, 2004) (“Lesser actions such as ... a diminution in the complexity and prestige of work assignments, and transfers may also be considered adverse.”). But the only evi[260]*260dence 'that Plaintiffs responsibilities were diminished comes in the form of his own subjective view of his old position, which he was “quite happy” with, as compared to his new position, which was “less desirable” to him. Plaintiffs own subjective dissatisfaction, however, is insufficient. Kessler v. Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 209 (2d Cir.2006) (“[T]he standard for assessing ... a reassignment is an objective, rather than a subjective, one.”); see also Johnson v. Eastchester Union Free Sch. Dist., 211 F.Supp.2d 514, 518 (S.D.N.Y.2002) (“Plaintiffs mere dissatisfaction with the transfer and his preference for his former position ... are insufficient to constitute a materially adverse employment action.”); Garber v. N.Y.C. Police Dep’t, No. 95 Civ. 2516(JFK), 1997 WL 525396, at *7 (S.D.N.Y. Aug. 22, 1997), aff'd, 159 F.3d 1346 (2d Cir.1998) (“Plaintiffs dissatisfaction with the transfer, standing alone, does not support his claim of an adverse employment action.”). Considering Plaintiffs reassignment in context, the Court finds no evidence from which a reasonable juror could conclude that his new assignments as Director of Special Projects were objectively less complex or prestigious than his responsibilities in the TPT/TLS position.
The Court, however, agrees with Plaintiff that a jury could find that his transfer from Director of Special Projects in DNP to his position at DAMP — first as Senior Project Manager, then as Senior Policy Analyst — was materially adverse. Upon his transfer to DAMP, Plaintiff no longer reported directly to the Assistant Commissioner — Hendrickson, Carbine’s counterpart. He instead reported to Taylor, who in turn reported to Hendrickson. It is fair to conclude from this evidence that Plaintiffs transfer to DAMP was not a “lateral” one as Hendrickson testified, but was, at least structurally, a demotion. A fact-finder could also reasonably conclude that, upon arriving at DAMP, Plaintiff experienced a rather rapid diminution in the complexity and prestige of his work assignments. Despite the “lofty”-sounding position described to him, Plaintiff would presumably testify that he was “never given any work in DAMP that came close” to that description. Indeed, crediting Plaintiffs statements that he “spent several months — easily more than 90 percent of his time — in DAMP with nothing to do,” had “no work to do from September 2008 to November 2008,” and now reports to “very young people,” it appears that the realities of the DAMP position were objectively inferior to the Director of Special Projects position. Accordingly, the Court concludes that Plaintiffs transfer to DAMP satisfies the third prong of his prima facie case.16
[262]*262 Causation
The Court agrees with HPD, however, that Plaintiff is unable to satisfy the final prong of his prima facie case — i.e., that there exists a causal connection between his various protected activities and his transfer to DAMP in September 2008.
It is well-settled that an adverse employment action cannot serve as the basis for a retaliation claim if the action was set in motion before a plaintiff engaged in protected activity. See Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir.2001) (no causation where “progressive discipline” began prior to plaintiffs filing of EEOC charges); Tomasino v. St. John’s Univ., 476 Fed.Appx. 923, 925 (2d Cir.2012) (“[B]eeause the record is replete with undisputed evidence that Defendant imposed progressive discipline against Tomasino well before September, an inference of discrimination will not arise based solely on the proximity between her complaint and termination.”). “If an employer’s conduct before and after an employee complaint is consistent, the post-complaint conduct is not retaliatory.” Wright v. N.Y.C. Off-Track Betting Corp., No. 05 Civ. 9790(WHP), 2008 WL 762196, at *5 (S.D.N.Y. Mar. 24, 2008); Lessambo v. PricewaterhouseCoopers, L.P., No. 08 Civ. 6272(WHP), 2010 WL 3958787, at *13 (S.D.N.Y. Sept. 27, 2010) (no causal connection where poor performance reviews were issued before and after protected activity), aff'd, 451 Fed.Appx. 57 (2d Cir.2011); Webb v. Niagara Cnty., No. 11-cv-192S, 2012 WL 5499647, at *5 (W.D.N.Y. Nov. 12, 2012) (“[Plaintiff] offers no evidence suggesting that the denials [of overtime] which occurred after her complaint were in any way different from the precomplaint denials, or that they were somehow related to the Division of Human Rights complaint. Without evidence of such a causal connection, this claim must also fail.”).
It is undisputed that HPD’s efforts to secure Plaintiff a position elsewhere within the agency were part of an extended process that began no later than October 2007, when Plaintiff voiced frustration about his reassignment within DNP, and ended nearly a year later when Plaintiff was ultimately transferred to DAMP. During this process, numerous other jobs were discussed — the DAMP position, of course, but also the Queens Borough Office position, the East Brooklyn Office for Neighborhood Services position, as well as potential opportunities in Preservation Finance, New Construction, Management and Disposition and Development — some of which materialized into concrete offers that Plaintiff rejected.
Plaintiff has admitted that this process was continuing and predated his protected activity when he emailed Whing in April 2008, stating “for several months now, Bill Carbine has been trying to secure an appropriate position for me.” That admission undercuts the argument Plaintiff made to Whing the day before, and makes again here, that Carbine’s efforts to transfer Plaintiff were “punishment [for Plaintiffs] recent letter to Deputy Mayor Lieber.” Logically, then, those efforts could not have been “punishment” for the EEO Complaint filed a month later either.17 To [263]*263find causation here merely because the extended period during which DNP worked to find Plaintiff a position of interest was punctuated by Plaintiffs various discrimination and retaliation complaints would permit a plaintiff, aware that his employer had plans for his undesirable transfer, to halt that process with a preemptive EEO filing. An employer should not be required to put a previously-planned, legitimate employment decision on hold simply because an employee engaged in protected activity.
In any event, the Court agrees with HPD that “[e]ven assuming that the adverse action plaintiff complains of did not have its genesis before his March 10, 2008 [Lieber Email] and April 10, 2008 EEO Complaint, [P]laintiff still fails to establish temporal proximity between those activities and the transfer to DAMP on September 15, 2008.” (Mem. 8.) “[District courts within the Second Circuit have consistently held that the passage of two to three months between the protected activity and the adverse employment action does not allow for an inference of causation.” See Murray v. Visiting Nurse Servs., 528 F.Supp.2d 257, 275 (S.D.N.Y.2007) (collecting cases); see also Adams v. Ellis, No. 09 Civ. 1329(PKC), 2012 WL 693568, at *16 (S.D.N.Y. Mar. 2, 2012) (“[C]ase law in the Second Circuit and in this district often finds a limit at two or three months and almost universally disapproves longer time periods.”).
The shortest temporal distance between Plaintiffs most recent protected activity (the April 2008 EEO Complaint) and his ultimate transfer to DAMP (in September 2008) is over five months. That is too long a time period as a matter of law and establishes an independent basis on which to reject Plaintiffs argument that a causal connection exists. McGinnis v. N.Y. Univ. Med. Ctr., No. 09 Civ. 6182(RMB), 2012 WL 5512173, at *4 (S.D.N.Y. Nov. 14, 2012) (“Because Plaintiffs basis for her claim of retaliation is the timing between the filing of her complaint on July 9, 2009 and her termination on February 1, 2010 and because she was subject to an extensive period of progressive discipline prior to the filing of her complaint, she has failed to make out a prima facie case of retaliation.”) (internal quotation marks omitted).
It may be true, as Defendant asserts, that Plaintiffs transfer was the result of its legitimate efforts to “secure an appropriate position for [Plaintiff]” outside of DNP. It may also be true, as Plaintiff asserts, that Carbine and others “just d[id]n’t want [him]” at DNP and “forced” him to transfer. Those two truths would not be mutually exclusive. See Burlington Northern, 548 U.S. at 68, 126 S.Ct. 2405 (“antipathy” is not actionable). Even if this is assumed, however, there has been no showing — by way of causal inference or otherwise — that Defendant’s decision to transfer Plaintiff to DAMP was retaliatory such that there exists a factual issue for a jury to resolve.
Plaintiffs retaliation claim accordingly fails at the prima facie stage.
CONCLUSION
For the reasons set forth above, HPD’s motion for summary judgment is granted. The Clerk of Court is respectfully directed [264]*264to terminate item number fifty (50) on the docket and to close this case.
SO ORDERED.
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Cite This Page — Counsel Stack
974 F. Supp. 2d 240, 2013 WL 5434619, 2013 U.S. Dist. LEXIS 141067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cayemittes-v-city-of-new-york-department-of-housing-preservation-nysd-2013.