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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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MERVYN FRANKEL,

Plaintiff, 06 Civ. 5450 (LTS)(DFE)

07 Civ. 3436 (LTS)(DFE)

- against -

 REPORT AND RECOMMENDATION

CITY OF NEW YORK, et al., TO JUDGE SWAIN

Defendants.

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DOUGLAS F. EATON, United States Magistrate Judge.

1. These two cases were filed by pro se plaintiff Mervyn

Frankel, who has been an employee of the City of New York since

1989, with the Department of Environmental Protection (“DEP”)

since 1994 and always with the title of Computer Specialist

(Software), Level 3. His Complaint in 06 Civ. 5450 alleges age

discrimination and retaliation; his Complaint in 07 Civ. 3436

alleges religious discrimination and retaliation.

2. Plaintiff took nine depositions, and discovery closed on

December 3, 2007, except for some documents that were produced

after I signed a Protective Order on January 17, 2008.

3. In a fax letter to me dated January 8, 2008, plaintiff

said that he would be sending me a cross-motion for summary

judgment. At the end of my 1/17/08 Memorandum and Order, I

warned him that “[i]n an employment discrimination case, it is

virtually impossible for a plaintiff to obtain summary judgment,”

but I set forth an amended briefing schedule calling for

defendants’ summary judgment motion by March 7 and plaintiff’s

cross-motion by March 24. To my surprise, plaintiff served his

motion first, on February 13. The motion was four inches thick. 

As explained in my 2/28/08 Memorandum and Order, both sides

wanted to redact a few portions of the motion, and so I held the

February 13 motion in my chambers without docketing it. After

the redactions were made, the redacted version of plaintiff’s

February 13 motion was docketed as Docket Items #48, #49 and #50. 

The defendants served and filed opposing papers (Docket Items #33

and #34), and then plaintiff served and filed reply papers

(Docket Items #38 and #41). 

4. However, the “main event” is defendants’ motion for

summary judgment. Defendants served and filed a Notice of Motion

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with attachments about two inches thick (Docket Item #31) and a

supporting Memorandum of Law (Docket Item #32). Once again, both

sides wanted to redact a few portions of this motion. In a joint

letter to me dated April 2, 2008, they agreed that Docket Item

#31 would be replaced by a slightly amended document (filed on

April 10 as Docket Item #37). On April 17, 2008, plaintiff filed

his opposing papers (Docket Items #39, #40, #42 and #43). On May

5, 2008, defendants filed reply papers in support of their

summary judgment motion (Docket Items #44 and #45).

5. For the reasons set forth below, I recommend that Judge

Swain grant defendants’ motion for summary judgment. The age

discrimination claim fails because no rational jury could find

that Frankel has been subjected to an “adverse employment

action.” His religious discrimination claim objects that certain

voluntary overtime projects are scheduled for Friday evening or

Saturday rather than Sunday; no rational jury could find that

there was any “employment requirement” which conflicts with his

religious beliefs. His retaliation claims fail because no

rational jury could find that he has been subjected to “a

materially adverse action,” defined as that which “well might

have dissuaded a reasonable worker from making or supporting a

charge of discrimination.”

FACTUAL AND PROCEDURAL BACKGROUND

6. Frankel was born on May 1, 1946. He has worked at DEP

since 1994, always with the title of Computer Specialist

(Software), Level 3. In view of his Orthodox Jewish religion,

DEP has always allowed him to work Monday through Thursday from

8:00 a.m. to 4:00 p.m. and Friday from 7:30 a.m. to 2:30 p.m. 

(Def. Exh. C at Tr. 174-75.) “Def. Exh. __” refers to certain of

the Exhibits A through BB attached at the end of defendants’

Notice of Motion, Docket Item #37. Other attachments are nearer

to the front of that Notice of Motion, including Defendants’

Statements under Local Civil Rule 56.1 and 56.2, and a

Declaration by Kevin Madden (¶4 describes each of the Def.

Exhs.), and Declarations by Cecil McMaster and by Joan Palmer.

7. On January 22, 2003, Robert Cucinotta was appointed as

Assistant Commissioner of DEP’s Office of Information Technology

(“OIT”). He was removed from his position in July 2004, and was

replaced by Cecil McMaster. (Palmer Decl. ¶¶ 7, 9-10; Def. 56.1

 ¶¶16, 25, 27.) Frankel charges McMaster with age discrimination

in violation of the Age Discrimination in Employment Act

(“ADEA”). The defendants’ initial memorandum of law correctly

points out:

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The ADEA only allows recovery for economic 

losses. The Second Circuit has held that the 

ADEA does not allow recovery for emotional damages,

and that relief under the ADEA is limited to “back

pay, liquidated damages, and injunctive relief 

such as reinstatement.” Johnson v. Al Tech

Specialties Steel Corp., 731 F.2d 143 [, 148]

(2d Cir. 1984); Haskell v. Kaman Corp., 743 F.2d

113 [, 120-21] (2d Cir. 1984). As set forth 

herein, the record is devoid of any evidence 

that the plaintiff suffered any economic damages

as he has not been subject to a demotion or 

reduction in pay nor has he ever applied for a 

promotion ....

(Docket Item #32, Def. Mem. at 5 at n.4.) Accord: Meyers v.

I.B.M. Corp., 335 F.Supp.2d 405, 411 (S.D.N.Y. 2004)(Robinson,

J.): “the ADEA does not allow plaintiffs to recover for emotional

distress, pain and suffering, or any other type of non-economic

damage.” (emphasis added)

 8. Frankel’s opposing papers doggedly try to show some

economic damages. Frankel places great emphasis on an e-mail

written by Cucinotta on June 7, 2004, shortly before he was

removed; it said: “The following OIT assignment changes are

effective immediately. Merv Frankel will move from

Finance/Administration to manage a new Security/Analysis unit

reporting directly to me. Lisa Nicholls and Ed Blanco will also

be in this unit ....” (Def. Exh. K, p. 4.) Frankel testified

that this was the first time he was ever given an “office” title;

he says the “office” title was “Manager of Security/Analysis,”

and I will accept this as true. (Exh. C at Tr. 46-47.)

9. However, this “office” title lasted for only one or two

months, and it appears that Frankel had no significant

opportunity to supervise Nicholls and Blanco. The loss of this

“office” title did not involve any economic loss to Frankel. 

10. In July 2004, Cucinotta was removed and replaced by

McMaster. At the direction of DEP Commissioner Christopher Ward,

McMaster began to implement a new organizational structure within

OIT, dividing its work groups into (a) Server Operations, (b)

Network Design and Administration (also known as Networking), (c)

Application Development, and (d) Desktop Integration and Data

Security. (McMaster Decl. ¶4; Def. 56.1 ¶28.) McMaster

requested each OIT employee to submit a resume, and he then met

separately with each employee to discuss his or her skill sets

and how best they might be utilized in the planned reCase 1:07-cv-03436-LTS Document 21 Filed 08/11/2008 Page 3 of 13
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organization. (Def. 56.1 ¶29; plaintiff’s counter-statement

(Docket Item #39) admits ¶29 and adds that “Mr. McMaster refused

to allow the status quo of allowing Mr. Frankel to continue as

Manager of Security/ Analysis.”)

11. McMaster reassigned eight employees, including

plaintiff, to different divisions within OIT. On or about August

16, 2004, he assigned plaintiff to OIT’s Networking Group, to be

supervised by Keino Leitch, who was only 30 years old but had

been manager of that Group for some years. (Defs. 56.1 ¶¶36, 37,

39.) “Mr. Frankel suggested that he co-manage the networking

group. Mr. McMaster refused this option ....” (Docket Item #39

¶31.)

12. Four days after being reassigned to Leitch’s group, 

Frankel made an internal complaint of age discrimination against

McMaster. He did so on August 20, 2004; on the same day, he was

interviewed by DEP’s EEO Investigator Michael Walczyszyn. The

first three pages of Def. Exh. K appear to be Walczyszyn’s

handwritten notes of the interview. They include the following:

Cecil inter[viewed] staff when 1st came on

....

Asked [“] How old are you [”] repeatedly

Suggested that since I’m older

 I [should] let younger blood manage & 

 [I was to] report to Keino.

My credentials [are] more powerful than Keino’s

....

[I’d] rather quit than report to Keino

 - [my] experience outweighs Keino’s

 - Cecil & Keino are joined at the hip

 - experience-wise - humil[iating] to report to Keino

....

I think Keino is getting pref[ential] treatment 

 because of race

Everyone “but one” is of same race 

 in Keino’s group

Group size [is] 5

I’m not comfortable in that group

....

13. At his deposition, Frankel was asked about that

interview: “Q. .... Isn’t it true that you informed DEP’s EEO

that you felt you didn’t fit in to the IT group because of your

complexion? A. That was a momentary reaction. * * * That was

a long time ago. That feeling does not exist.” (Def. Exh. C at

Tr. 201.)

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14. On August 27, 2004, Frankel sent an e-mail to Deputy

Commissioner David Tweedy. A photocopy of it is at page 45 of

the 06 Civ. 5450 Complaint; Frankel wrote: “Although DEP would

best be served by my being part of OIT, documented past history

has shown that I can not be effective on the tenth floor. ....

This e-mail is a formal request for transfer out of OIT.” 

15. By letter dated September 7, 2004, DEP’s EEO Officer

Martha Osenni replied to that transfer request by reminding

Frankel “that Citywide Job Vacancy Notices can be found in the

Human Resources reception area on the 18th floor of the Lefrak

Tower.” She also wrote: “Mr. McMaster has denied making any

comments about your age and as there were no witnesses to

corroborate your claim, your allegations cannot be

substantiated.” (Def. Exh. L.) Nine days later, Ms. Osenni sent

Frankel an e-mail (Def. Exh. M) suggesting voluntary mediation

“in the presence of a third, impartial party.” Frankel declined

the offer of mediation. (Def. Exh. C at Tr. 200.)

16. On October 15, 2004, Frankel filed a charge with the

New York State Division of Human Rights (“SDHR”) alleging age

discrimination and retaliation. (Def. Exh. N.)

17. In May 2005, Romel Osbourne began his employment at DEP

as Supervisor of OIT’s Networking Group. He reported to Leitch

and he replaced Leitch as plaintiff’s direct supervisor. (Def.

56.1 ¶67, admitted.)

18. On June 18, 2005, Osbourne sent an e-mail to Frankel

which said in part:

.... The second issue at hand is the network

security incident that you created on Wednesday, 

7/13 of last week. The ro[gu]e pc that you 

connected to the network was missing several 

security patches, did not have service pack 2, 

did not have virus protection software installed

and was infected with the w32/korgo.worm.v virus.

Once connected to the network this virus began 

to query and seek out servers and workstations

to infect including the commissioner’s workstation.

Fortunately, Chuck Thompson caught this activity 

and was able to quarantine and immobilize the virus

before things got worse. ....

(Def. Exh. R-1.) Frankel’s opposing papers (Docket Item #39 ¶70)

say: “This was an inadvertent act. A mistake that anyone could

make but was made a big deal in order to retaliate. This type of

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thing happens daily.”

19. In or around February 2006, plaintiff, as well as other

employees in OIT, was issued his performance evaluation for 2005;

it rated his performance as “unsatisfactory.” Prior to that

review, DEP had never issued plaintiff an annual performance

review, nor had he complained to anyone at DEP that he’d never

received an annual performance review. (Def. 56.1 ¶¶84-85,

admitted.)

20. In March 2006, SDHR issued its Final Investigation

Report (Def. Exh. X) and its Determination and Order (Def. Exh.

Y). SDHR found no probable cause for Frankel’s allegations of

age discrimination and retaliation. On April 20, 2006, the U.S.

Equal Employment Opportunity Commission (“EEOC”) adopted the

findings of SDHR. (First attachment to the Complaint in 06 Civ.

5450.) Frankel challenged the SDHR determination by filing an

Article 78 petition in May 2006, but he withdrew that petition in

September 2006. (Def. 56.1 ¶¶92-94, admitted.)

21. On June 9, 2006, Frankel went to the New York City

Commission on Human Rights (“CCHR”) and charged a different type

of discrimination - - he filed a charge of religious

discrimination and retaliation. (Def. Exh. U.)

22. On July 19, 2006, Frankel came to our Court and filed

the Complaint in 06 Civ. 5450, alleging age discrimination and

retaliation.

23. On May 1, 2007, Frankel filed the Complaint in 07 Civ.

3436, alleging religious discrimination and retaliation. It

appears that this allegation did not receive investigation by any

administrative agency. The Complaint’s first attachment is a

February 23, 2007 Notice of Right to Sue issued to Frankel “at

your request” by the EEOC. On May 7, 2007, CCHR issued a Notice

of Administrative Closure “because Complainant has taken an

action in court.” (Def. Exh. BB.)

LEGAL DISCUSSION

24. In responding to defendants’ legal arguments, Frankel

uses a method that puts the arguments and counter-arguments in a

single document, Docket Item #40. At the end of this document,

he attaches a copy of defendants’ 3/14/08 memorandum of law in

support of their motion for summary judgment; he identifies 79

defense arguments and numbers them consecutively in the righthand margins. At the front of Docket Item #40, he types his

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response to each of those 79 arguments, using headings such as

“Circled Item one,” “Circled Item two,” etc. (I have primarily

studied the large-type version of this response, which runs 28

pages; in my view, Frankel made Docket Item #40 unnecessarily

bulky by inserting, in addition, a smaller-type version that runs

25 pages.)

 

I. The age discrimination claim fails because no rational

jury could find that Frankel has been subjected to an “adverse

employment action.” (See particularly Def. Mem. pp. 5-13, and

Plaintiff’s responses to Circled Items 13-25.)

25. As I stated above at ¶7, “the ADEA does not allow

plaintiffs to recover for emotional distress, pain and suffering,

or any other type of non-economic damage.” Meyers v. I.B.M.

Corp., 335 F.Supp.2d 405, 411 (S.D.N.Y. 2004) (Robinson, J.) 

(emphasis added). 

26. In this regard, Defendants’ Memorandum, at page 8,

makes the following crucial point:

... [P]laintiff’s assignment to the Networking

Group did not affect his salary, benefits or 

seniority, nor did his assignment result in a 

demotion in title.

Frankel does not contradict this. He circles this passage as

Circled Item 15, but responds in an indirect way: “Plaintiff was

replaced by Charles Thompson as Manager of Security/Analysis.” 

He does not support this assertion with any citation to evidence. 

Moreover, Thompson always had a rank higher than plaintiff and

even higher than Leitch; at Docket Item #39 ¶38, plaintiff says: 

“I believe that [during] all of the time period prior to 2004 Mr.

Leitch [who was Network Administrator] reported to Mr. Thompson.”

27. Furthermore, Defendants’ Memorandum, at page 13,

states:

... See Sanders v. N.Y. City Human Res. Admin.,

361 F.3d 749, 756 (2d Cir. 2004) (holding that a 

negative performance evaluation that had no effect

on the terms and conditions of the complainant’s

employment did not constitute an adverse employment

action). The evidence before the Court establishes

that the unsatisfactory performance evaluations have

had no effect on plaintiff’s employment. Indeed,

plaintiff does not allege that he was ever 

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disciplined, or demoted, or that he lost any salary

or benefits from 2004 to the present. [Citing to 

 plaintiff’s deposition testimony.]

Frankel does not dispute this. He numbers this passage as

Circled Item 25, but his only response is a weak attempt to

distinguish the Sanders case: “Even if one unsatisfactory review 

is not an adverse action[,] three consecutive reviews are

definitely an adverse action which could lead to one[’s]

dismissal.” However, Frankel’s reviews have not led to any

dismissal, demotion, or suspension. 

II. Frankel’s religious discrimination claim objects that

certain voluntary overtime projects are scheduled for Friday

evening or Saturday rather than Sunday; no rational jury could

find that there was any “employment requirement” which conflicts

with his religious beliefs. (See particularly Def. Mem. pp. 19-

25, and Plaintiff’s responses to Circled Items 46-60.)

28. Because of his religious observance, Frankel requested

and received a special schedule: “My work hours are 8 to 4 ...

Monday through Thursday and 7:30 to 2:30 on Friday, year in and

year out.” (Def. Exh. C, Frankel Depo. at Tr. 174.) When the

Networking Group makes a new “network implementation,” it

commences the work on a Friday evening or on a Saturday. Frankel

is not responsible for participating in such implementations, but

he would like to participate. He says this would help him “to

remain technically current in [the] profession,” and that this is

important to him, whereas the loss of “[o]vertime compensation is

not the issue at hand.” (Pl’s response to Circled Item 49.) He

concedes that it is wise to schedule implementation work for a

weekend, to minimize disruptions for the end users of the

network, and to make sure there are no glitches before the

standard work-week starts on Mondays. But he suggests that this

work ought to be commenced on Saturday evenings or on Sundays. 

He put it this way when he was taking the deposition of Assistant

Commissioner McMaster:

[Mr. Frankel:] The question is should tasks in 

the networking group be moved to Sunday if Mr.

Frankel was in that group and cannot participate

as a full member of that group?

[Mr. McMaster:] No.

[Mr. Frankel:] Could you elaborate why?

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[Mr. McMaster:] Because the agency - - when you 

do changes to the network on the agency, we generally

start on Friday night. As a policy you want to make

the least impact to the agency as a whole[,] and if

you start Friday night into Saturday [then] you have

Sunday to recover if you go over. Most agencies, 

most businesses, operate and do changes over the 

weekend starting on a Friday night, that’s a 

standard practice in the industry.

(Def. Exh. G, McMaster Depo. Tr. 64-65.) DEP’s policy is to

reserve Sunday as a “safety” day, in case the implementation

encounters problems. This policy is obviously a rational one,

even though Frankel alleges that a different City agency has a

different practice. (In Pl’s response to Circled Item 59,

Frankel writes: “DOITT, as shown, does Sunday implementation as

per examples shown.”) 

29. Defendants’ Memorandum, at pages 19-20, says:

Plaintiff alleges he is discriminated against

based upon his religion because the Networking 

Group to which he’s assigned conducts its overtime 

network implementation projects beginning on either

Friday evening or on Saturday. ....

To make out a prima facie case of religious

discrimination, an employee must show that he 

(a) held a “bona fide religious belief conflicting

with an employment requirement,” (b) informed his

employer of this belief, and (c) was “disciplined

for failure to comply with the conflicting 

employment requirement.” Baker v. Home Depot, 

445 F.3d 541, 546 (2d Cir. 2006) (emphasis added)

....

Frankel does not dispute that he must meet all three of those 

requirements in order to show a prima facie case.

30. Frankel has failed to meet two of those requirements. 

He has failed to show that there has ever been any “employment

requirement” that he work on Friday evenings or on Saturdays, or

on any other day of religious observance. He has failed to show

that he was ever “disciplined” for failure to perform any work

that was scheduled for a Friday evening or a Saturday. 

 

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III. Frankel’s retaliation claims fail because no rational

jury could find that he has been subjected to “a materially

adverse action,” defined as that which “well might have dissuaded

a reasonable worker from making or supporting a charge of

discrimination.” (See particularly Def. Mem. pp. 26-28, 30-31,

and Plaintiff’s responses to Circled Items 62-68, 71-72.)

31. As mentioned above at Paragraph 12 of this Report,

Frankel made his first complaint of discrimination on August 20,

2004, an internal complaint. He alleges that DEP and its

supervisory employees retaliated against him by issuing

unsatisfactory performance evaluations starting in February 2006.

32. Defendants’ Memorandum, at pages 26-27, says (with my

emphasis added):

To establish a prima facie case of retaliation

under Title VII or the ADEA, a plaintiff must show

“[1] participation in a protected activity,

[2] knowledge by his employer of such activity, 

[3] that he suffered a materially adverse action,

and [4] that there is a causal connection between

the protected activity and the materially adverse 

action.” Kessler v. Westchester County Dep’t of

Soc. Servs., 2006 U.S. App. LEXIS 21530, *24 

(2d Cir. 2006) .... See also Burlington No. and

Santa Fe Ry. Co. v. White, 126 S.Ct. 2405, 2415 

(2006). ...

***

... [A] materially adverse action [is] 

defined as that which “well might have dissuaded

a reasonable worker from making or supporting a 

charge of discrimination.” Burlington, 126 S.Ct.

at 2415. ...

For example, in Burlington, the Supreme Court

held that a transfer to a less prestigious assignment

even if the rate of pay was the same constituted 

a materially adverse action. Id. at 2417. ...

In fact, the Court in this District has held

that a negative evaluation without any effect on

employment does not constitute a materially adverse

action even after Burlington. See Jackson v. City

Univ. of N.Y., 2006 U.S. Dist. LEXIS 43338 (S.D.N.Y.

[June 26, 2006) (Rakoff, J.)].

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