Cotterell v. Gilmore (64 F. Supp. 3d 406, 2014)

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

On August 1, 2012, the Plaintiff Paul Cotterell (the “Plaintiff’), then an employee of the non-party New York State Department of Environmental Conservation (“DEC”), commenced this action against the Defendants James Gilmore, William Hastback, and Susan Ritchie (the “Defendants”) and certain John and Jane Does. The Defendants were at all relevant times employees of DEC. The complaint alleges employment discrimination on the basis of race, color, and national origin under 42 U.S.C. § 1983, 42 U.S.C. § 1981, as amended by the Civil Rights Act of 1991, and the New York State Human Rights Law as contained in New York State Executive Law § 296 et seq. (the “NYSHRL”). The Plaintiff also contends that the Defendants caused or perpetuated a hostile work environment against him on the basis of race, color, and national origin and unlawfully retaliated against him for complaining about the alleged unlawful conduct. Of note, however, the Plaintiff does not assert a “failure to promote claim” or a “constructive discharge” claim, or a claim against DEC under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17.

Following discovery, on August 25, 2014, the Defendants moved, pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 56, for summary judgment dismissing the complaint.

For the reasons set forth, the motion is granted in part and denied in part.

I. BACKGROUND

Unless stated otherwise, the following facts are drawn from the parties’ Rule 56.1 statements and attached exhibits and are construed in a light most favorable to the non-moving party, the Plaintiff. Triable issues of fact are noted.

A. The Parties

The Plaintiffs color is black, his race is black, and his national origin is Jamaican. He has been employed by New York State for more than twenty years. In particular, he was employed by DEC between May 12, 2011 through September 12, 2012.

The Defendants, each white, were employed by DEC during the entire period that the Plaintiff was similarly employed. Each defendant was stationed in DEC’S East Setauket office. In particular, during this time, Gilmore was employed by DEC as the Chief of the Bureau of Marine Resources; Hastback was employed by DEC as Acting Shellfísheries Section Head and reported directly to Gilmore; and Ritchie was employed by DEC as Food Inspector 2 in the Shellfish Inspection Unit and reported directly to Hast-back. Ritchie was the Plaintiffs immediate supervisor from the beginning of his DEC employment until July 31, 2012, when he was “temporarily reassigned” to report to Lisa Tettelbach.

In the Shellfish Inspection Unit during the time that the Plaintiff was employed by DEC, there were only two other Food Inspector Is, Peter Usbeck and William Athawes, both white. Athawes began as a Food Inspector 1 in .1998 and Usbeck began in 2000. None of the Defendants interviewed or hired them.

B. The Plaintiffs Work History

The Plaintiff was previously employed by the New York State Office of General Services (“OGS”) from 2004 to 2010 as a Food Inspector 1.

DEC hired the Plaintiff as a Food Inspector 1 in the Shellfish Inspection Unit of the Shellfísheries section of DEC’s Bureau of Marine Resources to fill a vacancy created when another Food Inspector passed away in January 2011.

The Shellfish Inspection Unit’s core functions consist of protecting public health through sanitary and records inspections of shellfish shippers and processors, and also by conforming with the minimum inspection frequencies specified by the National Shellfish Sanitation Program so that approximately 250 shellfish shippers and processors can be allowed to sell their shellfish products in interstate commerce.

DEC hired the Plaintiff from a Civil Service preferred list, on which he was the only person listed. Accordingly, apparently DEC had no discretion as to whether or not to hire the Plaintiff for the position of Food Inspector 1.

Throughout his DEC employment, the Plaintiff was stationed at DEC’S office in East Setauket, Suffolk County, approximately. 116 miles from the Plaintiffs residence in Dutchess County. The Plaintiffs annual salary from DEC was at the high range for the position of Food Inspector 1, ranging from $51,268 to $65,190.

In or about April 2012, eleven months after the Plaintiff began working for DEC, the Plaintiff took the first steps to search for other employment, even if for less compensation. In the course of this search, the Plaintiff found a civil service posting dated July 3, 2012 for a Food Inspector I (Grade 18) position with the New York State Department of Agriculture and Markets (“A &-M”).

The civil service posting required persons interested in bidding for the position to send a memorandum within ten days after the posting date. The Plaintiff responded to the posting before he received • a DEC July -27, 2012 notice of intent to temporarily reassign and before he received a DEC August 3, 2012 notice of discipline, both later described in detail. The Plaintiff applied for the A & M position. He was interviewed, and was informed by a letter dated August 31, 2012 that he received the position effective September 13, 2012. Thus, the Plaintiff had no “break in service” between his September 12, 2012 resignation from DEC and the commencement of his A & M employment on September 13, 2013.

The Plaintiffs starting annual salary at A & M was approximately $65,000, and the Plaintiff also received a $3,096 geographic location pay from both DEC pursuant to a collective bargaining agreement, and from A & M. In addition to receiving the same annual salary from both DEC and A & M, the Plaintiff also received the same amount of geographic location pay. The Plaintiffs commute from his Dutchess County residence to his A & M position in Kings County was shorter than his commute from his residence to DEC in East Setauk-et. The Plaintiffs hiring by A & M, effective September 13, 2012, was subject to a probationary period of no more than 52 weeks and the Plaintiff has continued working to the present for A & M as a Food Inspector 1.

C. DEC’s Noiv-Discrimination Policy

DEC maintains a policy of nondiscrimination in the workplace that seeks “to ensure that Department employees have a workplace that is free from illegal discrimination” and that “prohibits retaliation against individuals who inquire about his or her rights or who makes a complaint of illegal discrimination.” (Combined Rule 56.1 Statement, at ¶ 35.) This nondiscrimination policy sets forth internal complaint procedure, advising employees that discrimination complaints could also be filed with the EEOC or New York State Division of Human Rights, although “employees are encouraged to raise such concerns with the appropriate supervisor or the OAA [Office of Affirmative Action].” (Id. at ¶ 36.)

D. The Alleged Discriminatory Conduct

1.The Failure to Notify the Plaintiff of his Hiring for more than Two Weeks After his Interview

On April 25, 2011, the Plaintiff was interviewed by Hastback and Ritchie. The Plaintiff had stated in his DEC employment application that he was not available to begin work until May 3, 2011. The Plaintiffs DEC employment began on May 12, 2011. The Plaintiff maintains that his DEC employment should have begun on May 3, 2011.

The Plaintiff alleges that Hastback and Ritchie informed him that he would be notified of his hiring within a day of his interview. The Plaintiff alleges that by not informing him of his hiring immediately, he was treated less favorably than applicants Athawes and Usbeck, both white, who were officially informed of their hiring sooner relative to their start date.

2. The Failure to Receive a Welcome Letter

■ The Plaintiff also alleges that, in a display of discriminatory animus, and contrary to the custom and practice as to incoming hires at DEC, the Plaintiff did not a receive a welcome letter from anybody at DEC until several months after his employment commenced.

However, the summary judgment record indicates that, on May 13, 2011, the day after the Plaintiffs DEC employment commenced, Ritchie sent an email to all DEC employees at “Marine-Long Island,” asking them to stop in his office to welcome the Plaintiff. On the other hand, Gilmore apparently did not welcome the Plaintiff as he had done with previous subordinates.

Sometime thereafter, DEC sent him a letter confirming his appointment with DEC and welcoming him to the agency. The Plaintiff maintains that, unlike with respect to Athawes and Usbeck, he did not receive the letter until a month subsequent to its written date.

3. The Failure to Evaluate the Plaintiffs Inspections

The Interstate Shellfish Sanitation Conference (“ISSC”) is a federal-state-industry cooperative body that, is composed of state shellfish regulatory officials, industry officials,, the FDA, and other federal agencies. The ISSC provides the forum for state regulatory officials to establish uniform national guidelines and to exchange information regarding sources of safe shellfish and to ensure that shellfish will be safe and sanitary. An inspector’s standardization is for a five-year period.

According to the complaint, Ritchie prevented the Plaintiff from becoming ISSC-compliant because Ritchie refused to evaluate the five inspections performed by the Plaintiff. The Defendants dispute this allegation and deny that it rose to the level of an “adverse employment action” as is necessary to state a claim under certain federal and state antidiscrimination statutes. Further, as admitted by the Plaintiff, the New York State Department of Civil Service’s description of the Food Inspector I position made no reference to the ISSC or to ISSC standardization requirements; the Plaintiffs performance standards did not refer to ISSC standardization; the notice of intent to temporarily reassign the Plaintiff made no reference to ISSC standardization; and the notice of discipline issued to the Plaintiff made no reference to-ISSC standardization.

4. The Reinspection of Shippers Inspected by the Plaintiff

The Plaintiff contends that he suffered “ridicule” and “great embarrassment” because the other Food Inspector Is surreptitiously reinspected suppliers that the Plaintiff had already inspected. (Compl., at ¶ 29(f).). However, the summary judgment record indicates that reinspections were apparently a “two-way street,” as the Plaintiff inspected some facilities that had already been inspected by the other two Food Inspector Is.

5. Sick Leave

Section 3.5 of DEC’s Time and Attendance Manual states, in pertinent part: “In accordance with Civil Service Time and Attendance rules and Collective Bargaining Unit Agreement, the employee’s supervisor may require satisfactory proof to justify the use of sick leave credits. Such evidence may include a doctor’s certificate, proof of hospitalization, etc.” (Combined Rule 56.1 Statement, at ¶ 250.)

During the Plaintiffs’ first seven months of his DEC employment, from May 12, 2011 through December 21, 2011, the Plaintiff took 100.5 hours of seek leave. In so doing, the Plaintiff sought medical attention for, among other problems, the possibility of having breast cancer.

By contrast, during the same period, Usbeck did not take any sick leave and Athawes took only 6.5 hours. Further, the Plaintiff’s absences became more frequent over time. However, the Plaintiff notes that while he took 49 hours of vacation during this time period, Athawes and Us-beck took 108.5 and 107.5 hours of vacation, respectively.

Nevertheless, prior to May 18, 2012, due to his sick leave absences, the Plaintiff was asked to provide medical documentation, apparently by Ritchie and with input by Hastback. The Plaintiff maintains that he was the only employee in his unit required to divulge medical information. According to DEC policy, employees are not required to provide a note until after they have been placed on “medical notice.” Yet, the record shows that the Plaintiff was placed on medical notice sometime on or after May 18, 2012.

At some point, Ritchie began to deny some of the Plaintiff’s sick leave requests. The Defendants maintain that some of the Plaintiff’s sick leave requests were denied because of the adverse effect his absence had on the ability of the other food inspectors to perform scheduled inspections; the short notice of the requests; and the possible adverse effects on the shellfish shippers and dealers if their inspections could not be timely performed.

6.The Performance Evaluations

DEC employees including Food Inspectors are evaluated on an annual basis, and on a semi-annual basis by the employee’s immediate supervisor, referred to as “six month recertifications.” An employee’s date of hire generally serves as the first day of that employee’s annual evaluation, with certain exceptions based upon civil service-related matters.

The fact that there was a four-month gap between the termination of the Plaintiffs OGS employment and the commencement of his DEC employment presented an issue for DEC personnel in Albany as to their determination of the Plaintiffs proper date for evaluation purposes. Further, Ritchie was four weeks late in performing the Plaintiffs six-month recertifi-cation, in which the Plaintiff received a mark of “Unsatisfactory.” However, under DEC policy, this untimeliness entitled him to receive a mark of “Satisfactory,”

The Plaintiff asserts that, in order to avoid this “technicality,” Ritchie and Hast-back conspired to create an ad hoc probationary period so that his starting date was recast as October 12, 2011. However, Sherri Montross, an Associate Personnel Administer, initially informed the Defendants that there was no probationary period for the Plaintiff.

On January 24, 2012, Montross sent an email to Hastback stating that the Plaintiffs performance evaluation date was October 12, 2011. (Combined Rule 56.1 Statement, at ¶ 231.)

On April 11, 2012, the Plaintiff again received an evaluation of “Unsatisfactory” from Ritchie. This time, Ritchie explained that the Plaintiff had used his time inefficiently; had not always produced clear and concise inspection reports; failed to conduct timely re-inspections; was frequently late for work or absent; had taken a substantial amount of leave time; and had not complied with DEC procedures concerning the use of a personal vehicle and proper recording of time and attendance.

The Plaintiff maintains that these unsupported evaluations precluded him from receiving a monetary bonus and diminished his prospects for advancement. The Plaintiff also maintains that, in violation of DEC policy, Ritchie did not meet with him to discuss his performance.

7. The Search of the Plaintiff’s Work Area

On June 4, 2012, while standing outside DEC’S East Setauket office, the Plaintiff observed Ritchie, Athawes, and Usbeck searching through his desk. After the Plaintiff entered the building, he opened his desk drawers and saw that his “personal belonging were all ravaged through” but “nothing was missing from me personally.” (Pi’s Dep., at 43.) According to the Plaintiff, Ritchie told him that she, Athawes, and Usbeck were looking for notepads in his desk. The Plaintiff did not recall having any further conversation with Ritchie about the search, and had not spoken about it with Athawes or with Usbeck.

The Plaintiff alleges that an incomplete inspection report pertaining to a shipper, Aqua Best, had been in his desk. The report was then allegedly taken, copied without his knowledge, and replaced, and that it was used as -material to later interrogate him.

Gilmore and Hastback had no advance knowledge or participation in this search.

8. Miscellaneous Alleged Discriminatory Conduct

The Plaintiff also contends that throughout his employment with DEC, he was the only Food Inspector I in his unit that was denied reimbursement for using his personal vehicle for work-related duties after being assured by certain of the Defendants that he would be so eligible. The Plaintiff further contends that only he was denied the use of his per diem allowance for meals and lodging.. The Plaintiff also asserts that he did not receive adequate training and was excluded from critical meetings.

The Plaintiff further asserts that, despite living farther from DEC’s office building than the other Food Inspectors did, he was forced to arrive at work earlier. The Plaintiff contends that the Defendants failed to give him early morning access to the DEC office and, at times, he was forced to relieve himself in the building’s shrubbery.

The Plaintiff also points out that he complained about disparate treatment, both in written and oral form, although in general terms, yet the Defendants and others failed to report the Plaintiffs allegations to the OAA, although they had an affirmative obligation to do so under DEC policy.

9. The “Interrogation”

At some point, Gilmore requested in writing to his superiors that disciplinary proceedings against the Plaintiff be commenced. (Flynn Dep., at 35.) On April 6, 2012, Ritchie emailed Patricia Riexinger (“Riexinger”), the Director of the Division of Fish and Wildlife and Gilmore’s direct supervisor, concerning the Plaintiff, describing the problems she perceived with the Plaintiffs inspections. Ritchie also described how she, Athawes, and Usbeck were fearful of the Plaintiff and how the work environment had become “stressful for everyone in the unit.” (Pi’s Exh. 137) However, Athawes and Usbeck testified that they were not afraid of the Plaintiff, and Usbeck described him as “pleasant.” (Athawes Dep., at 65; Usbeck Dep. at 99, 102).

That same day, Riexinger forwarded that email to Theresa Flynn (“Flynn”), the DEC Labor Representative II; Mark Ca-drette (“Cadrette”), DEC’s Director of Office of Employee Relations and Flynn’s direct supervisor; Gilmore; Hastback; and Ann Lapinski, a DEC Associate Attorney and Acting Director of Internal Audit and Investigation, asking for a meeting to “address[] this chronic and inexcusable bad work performance by [the Plaintiff.”] (Combined Rule 56.1 Statement, at ¶ 129.)

On June 26, 2012, the Plaintiff was the subject of an “Interrogation” conducted by Flynn. The relevant collective bargaining agreement (“CBA”) defined an “Interrogation” as “the questioning of an employee who, at the timé of the questions, has been determined to be a likely subject for disciplinary action.” (CBA, at § 33.3[b]). None of the Defendants were present at this “Interrogation” nor did any hold supervisory authority over Flynn.

The Plaintiff alleges that he was questioned about his inspection of Aqua Best, based upon information obtained as a result of the search of his work area led by Ritchie. The Plaintiff was not súbject to any other formal interrogations, though he alleges that he was subject to informal “interrogations” where, on one occasion, he was forced to divulge private medical information to Ritchie or be subjected to discipline. (Pi’s Dep., at 72.)

On June 28, 2012, Patricia Riexinger (“Riexinger”) emailed Alison Crocker, DEC Deputy Counsel, and Cadrette, stating:

[B]ased upon preliminary feedback from Theresa [Flynn, who conducted the interrogation] after the interrogation that there didn’t seem to be much we could do. Continued documentation is not enough; we simply have to get rid of this guy. I don’t care if you put him on medical leave but he has to go. We are seriously affecting the work of the Unit (food inspection: think “people get sick and die ... ”) and the health of our previously productive and enthused staff.

I cannot leave this to Theresa only. I need your help and intervention to FIX THIS PROBLEM. Please help us.

(Combined Rule 56.1 Statement, at ¶ 159.)

10. The Notice of Reassignment

Am email written on July 17, 2012 by Philip Lodico, DEC in-house counsel, that was either sent to and/or forwarded to Cadrette, Flynn,' and others stated:

If you decide to reassign him, he should be given duties within the range/scope of his title ... manual labor normally is associated with a low pay grade. I seem to recall being told that he verbalized an intent to complain about treatment by his supervisors. If true and manual labor is not within [sic] the range/scope of his title, assigning him such duties could be reviewed as retaliation.

(Id. at ¶ 161.)

Nonetheless, the Plaintiff received a notice of intent dated July 27, 2012 to temporarily reassign him and that afforded him two options: accept the reassignment with pay or be suspended without pay. (Pi’s Exh. 75.) The temporary reassignment was based on the Plaintiffs “inability to perform timely sanitary inspections and related reports.” (Id.) The notice of intent also stated:

The Department has lost its trust in your ability to conduct inspections when assigned. This causes the remaining food inspectors in the Shellfish Program to perform the additional duties that you were hired to perform, as well as reinspect and verify inspections you had completed. Because of this, the Department believes your continued presence on the job is causing a severe disruption to operations. In addition, the Department believes that allowing you to continue to perform in this manner, represents a potential danger to public health.

(Id.)

On July 30, 2012, the Plaintiff sent a letter to Cadrette accepting the “demotion” with pay and stating:

I strongly disagree with the reasons ... for the decision to either have me suspended without pay or reassigned to a position that, in effect, amounts to a demotion. I believe that these reasons are a pretext designed to mask the unlawful conduct of my supervisors, including Messrs. Gilmore and Hastback and Ms. Ritchie.

(Combined Rule 56.1 Statement, at ¶ 4A)

The Plaintiff was reassigned to work under Lisa Tettlebach, a Marine Biologist I, who was the same grade level (18) as him. In his new role, the Plaintiff was required to perform manual labor such as making copies, tasks he considered beneath his professional status. The Plaintiff further asserts that he was directed to perform work on a boat, despite verbalizing his fear of being on the water and Gilmore being made aware of this phobia.

11. The Notice of Discipline

On August 3, 2012, the Plaintiff received a notice of discipline, which charged the Plaintiff with, among other things, (1) insubordination in that he failed to comply with his supervisor’s directive to perform scheduled inspections at the Fulton Fish Market; (2) failed to provide, as directed, medical documentation for unscheduled absences; and (3) improperly used a New York State Citibank travel card issued to him. (Pi’s Exh. 73.) None of the charges in the notice of discipline pertained to Aqua Best or ISSC standardization.

On August 6, 2012, the Plaintiff filed an internal grievance with DEC seeking “withdrawal of the notice of discipline and removal of the notice of discipline and all relevant papers from my personal history folder.” (Pl’sExh.72.)

In October 2012, after the Plaintiffs resignation from DEC, it agreed not to pursue the disciplinary process if the Plaintiff completed his 52-week probationary period with A & M. The Plaintiff agreed to this proposal.

Although the Plaintiff was not formally disciplined thereafter, the Plaintiff alleges that his future employment opportunities were diminished by virtue of the notice of discipline and the fact that it remained in his employment file with DEC. Moreover, the Plaintiff points to Cadrette’s March 14, 2014 testimony that the notice of discipline was being held in abeyance beyond the promised 52-week period. (Cadrette Dep., at 136-188.)

12. The “Retaliation” against the Plaintiff for the OGS Lawsuit

As noted above, before working for DEC, the Plaintiff was employed by OGS from 2004 through 2011. While still employed by OGS, in April 2010, the Plaintiff brought an action in Supreme Court, Dutchess County (the “OGS Action”), alleging that he was discriminated against by OGS on the basis of race and national origin, and was retaliated against for having complained ábout the alleged discrimination. In March 2013, the OGS action was dismissed on a summary judgment motion. An appeal of that dismissal is pending.

The Plaintiff contends that a statement made by Ritchie to “Sue me,” uttered in the context of discussion of the changed evaluation period, signified that Ritchie had prior knowledge of the OGS lawsuit. Indeed, on June 19, 2012, the Plaintiff sent an email to Ritchie that concluded with the following statement: “I understand that because you are aware of my complaint against the State, you with the support of others have chosen to treat me differently over these last few months.” (Combined Rule 56.1 Statement, at ¶ 4A)

However, this email did not identify the names of the defendants in the OGS action; whether the OGS action was employment-related; the subject matter of the OGS action; or whether the OGS action pertained to discrimination on the basis of race or national origin.

The Plaintiff interpreted Ritchie’s failure to reply to the email as meaning that “[s]he basically acknowledged that it was true, that she knew.” (The Pi’s Dep., at 27-28.) Although Ritchie did not reply to that email, she forwarded it to Flynn, with copies to Gilmore and Hastback, in which she stated: “First of all, I have no knowledge of him lodging a complaint against the State.” (Combined Rule 56.1, at ¶ 61.) The Plaintiff characterizes this assertion as self-serving and maintains that the Defendants were aware of the OGS lawsuit at this time. The Defendants contend that neither Gilmore nor Hastback knew about the Plaintiff’s OGS Action until they received the complaint in this action.

13. Hostile Work Environment

The summary judgment record indicates that none of the Defendants made derogatory statements, whether based on race, color, or national origin, directly to him, or about him to others, or that any defendant physically threatened him. However, in addition to the above-mentioned instances of alleged discriminatory conduct, the Plaintiff contends that (1) Ritchie once told him his “opinion did not count;” (2) Ritchie once told him that she had many important things to attend to and that the Plaintiff was not one of them; and (3) Hastback once told the Plaintiff to leave his office in an abrasive manner.

14. The Present Action

As noted above, on August 1, 2012, while still employed at DEC, the Plaintiff commenced the present action.

15. The Resignation

By letter dated September 12, 2012 addressed to DEC’s Human Resources Department in Albany, NY, the Plaintiff resigned from the DEC, citing “continuous and ongoing discrimination because of my race and national origin and retaliation against me.” This letter was neither forwarded to the OAA nor acted upon in any way. (Hastback Dep., at 292.) The Plaintiff began working for A & M the next day.

The Defendants contend that the Plaintiff did not suffer any “adverse employment action” thereafter. However, according to the Plaintiff, the notice of discipline was not withdrawn from his personnel file and, therefore, he continually suffered an “adverse employment action” in this respect. The Plaintiff was referred to the Inspector General’s (“IG”) Office, which examines allegations of misconduct by DEC employees, although it appears no discipline was rendered in connection with that referral.

II. DISCUSSION

A. The Legal Standard on Summary Judgment

Summary judgment may not be granted unless all of the submissions taken together “show[] that there is no genúine dispute as to any material fact and the mov-ant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination, the court must view all facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party’s favor. Nunn v. Mass. Cas. Ins. Co., 758 F.3d 109, 114 n. 4 (2d Cir.2014). Once the moving party has asserted facts showing that the non-movant’s claims cannot be sustained, the opposing party must set out specific facts showing a genuine issue for trial, and cannot rely merely on allegations or denials contained in the pleadings. See Fed.R.Civ.P. 56(c); accord Fabrikant v. French, 691 F.3d 193, 205 (2d Cir.2012). “[Cjonclusory statements, conjecture, and inadmissible evidence are insufficient to defeat summary judgment.” Ridinger v. Dow Jones & Co. Inc., 651 F.3d 309, 317 (2d Cir.2011) (citation omitted).

In cases involving claims of employment discrimination, “an extra measure of caution is merited” in granting summary judgment because “direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions.” Schiano v, Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir.2006) (citation omitted). Nonetheless, “a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment.” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.2008). Ultimately, the test for summary judgment is whether “a reasonable jury could return a verdict for the nonmoving party.” Nunn, 758 F.3d at 114 n. 4 (citation omitted).

B. Preliminary Matters

1. The Plaintiffs’ Rule 56.1 Statement and Memorandum in Opposition

Before examining the merits of the Plaintiffs claims, a brief word in is order about the form in which the Plaintiffs allegations were submitted to this Court.

Initially, the Court notes that the Plaintiff is primarily responsible for the sheer length of the 169 page Combined Rule 56.1 Statement, even though Local Rulé 56.1 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York requires a party opposing a motion for summary judgment to submit “a numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried.” Local Rule 56.1(b) (emphasis added).

In this case, as to the Plaintiffs Counter-statement of Material Facts, “apart from the fact that it ignores the Rule’s requirement that a statement be ‘short and concise,’ is problematic for the simple reason that it is not limited to facts as to which it is contended that no genuine triable issue exists, but is instead rife with opinions, legal arguments, and blatant conjectures that clearly are disputed in this litigation.” Sheppard v. Beerman, 190 F.Supp.2d 361, 363 (E.D.N.Y.2002) aff'd, 317 F.3d 351 (2d Cir.2003). Of particular relevance here, the Plaintiff points to a number of documents and oral complaints he made to his superiors, seeking redress for “disparate treatment” and “unlawful” conduct by his superiors. However, this document strains credulity by denying that the Plaintiff never alleged race, color, or national origin discrimination to any of his superiors prior to his resignation letter.

In addition, in his memorandum in opposition, the Plaintiff takes liberties with the record, often citing to evidence that, when examined, fails to support his assertion. For example, in his memorandum of law, the Plaintiff states that he was “reassigned days before the NOD was fully adjudicated.” (Docket No. 51, at 25.) However, the record is plain that the NOD was never fully adjudicated. Relatedly, the Plaintiff cites Flynn’s testimony for the proposition that it is against DEC policy that a reassignment occurs before adjudication of a notice of discipline. However, a close reading of Flynn’s testimony reveals that he does not refer to DEC policy or the CBA. (Flynn Dep., at 208-209,) Further, citing to the Rule 56.1 Statement, the Plaintiff alleges that Ritchie contacted the defendants in the OGS Action before hiring him. However, that assertion is inaccurate because there is no indication that Ritchie communicated with any of the three individual defendants • in the OGS Action.

Despite these infirmities, the Court, of course, will seriously consider the Plaintiffs arguments.

2. The Claims Against the Defendants in their Official Capacities

The Defendants are each sued in their personal and official capacities. (Compl., at 8, 10, 12.) However, “[t]he Eleventh Amendment bars suits in federal court by citizens against a state and its agencies, absent a waiver of immunity or Congressional legislation specifically overriding immunity.” Martinez v. Healey, No. 14-CV-302 (NSR), 2014 WL 5090056, at *6 (S.D.N.Y. Oct. 10, 2014) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99-100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)). It is well-established that New York State has not consented to Section 1983 suits in federal court, Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35, 38-40 (2d Cir.1977), and that Section 1983 was not intended to override a state’s sovereign immunity, Quern v. Jordan, 440 U.S. 332, 340-42, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Thus, because a Section 1983 claim against a New York state official in his or her official capacity is deemed to be a suit against the state of New York, Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), the Eleventh Amendment precludes any such claim.

Under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), a “plaintiff may avoid the Eleventh Amendment bar to suit and proceed against individual state officers, as opposed to the state, in their official capacities, provided that [her] complaint[:] (a) alleges an ongoing violation of federal law[;] and (b) seeks relief properly characterized as prospective.” Clark v. DiNapoli, 510 Fed.Appx. 49, 51 (2d Cir.2013) (internal quotation marks and citation omitted).

In this case, as the Plaintiff has not been employed by DEC for more than two years,' he fails to plausibly allege an ongoing violation of federal law on the part of the Defendants in their official capacities.

Alternatively, “[n]either a state nor its employees sued in their official capacities are considered ‘persons’ that can be sued under section 1983 because of the state’s Eleventh Amendment immunity.” Corrado v. New York State Unified Court Sys., No. CV 2012-1748(DLI)(MDG), 2014 WL 4626234, at *9 (E.D.N.Y. Sept. 15, 2014) (citing Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) and Posr v. Court Officer Shield No. 207, 180 F.3d 409, 414 (2d Cir.1999)).

3. The Claims Based on National Origin

The Plaintiff points to nothing in the record as to the Defendants’ respective national origins or, for that matter, any individual at DEC besides himself. The Plaintiff apparently assumes that the national origin of these other individuals was all “American.” However, even making all factual inferences in the Plaintiffs favor, the Court is unprepared to make that particular assumption. In any case, there is no evidence in the record to suggest that the Plaintiff was discriminated against on the basis of national origin and the Court, therefore, dismisses all claims based on that protected characteristic.

Further, even if there were a genuine issue of material fact related to a claim of national origin discrimination, such a claim would be cognizable only under the NYSHRL, as opposed to Section 1981, which, as set forth later, is limited to protections against unlawful discrimination on the basis of race or color. Choudhury v. Polytechnic Inst. of New York, 735 F.2d 38, 42 (2d Cir.1984) (“[Section] 1981 provides protection against discrimination in private employment on the basis of race or color.”)

4. Exhaustion of Administrative Remedies

In responding to the Defendants’ Rule 56.1 Statement, the Plaintiff conceded that he did not file a complaint with the New York State Division of Human, Rights, which is “a jurisdictional bar to the later assertion of a judicial claim regarding the same alleged discrimination.” Estronza v. RJF Sec. & Investigations, No. 12-CV-1444 (NGG)(JO), 2014 WL 5871203, at *7 n. 7 (E.D.N.Y. Aug. 27, 2014), report and recommendation adopted as modified sub nom. Estronza v. RJF Sec. & Investigations, No. 12-CV-1444 (NGG)(JO), 2014 WL 5877942 (E.D.N.Y. Nov. 12, 2014). However, “a failure to exhaust administrative remedies is an affirmative defense that a defendant must plead and cans waive.” Id.

Here, the Defendants did not plead failure to exhaust administrative remedies, as an affirmative defense in their answer, (Docket No. 10), nor do they make this argument in support of their motion for summary judgment. Accordingly, the Court deems any exhaustion defense under the NYSHRL to be waived.

C. The Discrimination Claims

The Plaintiff asserts claims against the Defendants for race, color, and national origin based on discrimination in violation of 42 U.S.C. § 1983, § 1981, and the NYSHRL.

1. The Applicable Legal Standards

Section 1983 provides plaintiffs with the power to bring a suit if they have been subjected, “under color of any statute, ordinance, regulation, custom, or usage, of any State ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws[.]” 42 U.S.C. § 1983. Section 1981 provides that “[a]ll persons within the jurisdiction of the- United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens[.]” 42 U.S.C. § 1981(a). The NYSHRL prohibits an employer from discriminating against an individual on the basis of her “age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status.” N.Y. Exec. L. § 296(l)(a).

Further, “individual liability may arise under the NYSHRL as well as §§ 1981 and 1983 if a plaintiff shows that the individual defendants were personally involved or participated in the violation.” Croons v. New York State Office of Mental Health, 18 F.Supp.3d 193, n. 11 (N.D.N.Y.2014).

Claims of disparate treatment under § 1983, § 1981, and the NYSHRL are assessed using the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Pilgrim v. McGraw-Hill Cos., Inc., 599 F.Supp.2d 462, 468 (S.D.N.Y.2009) (“[T]he standard for all [ ] section 1981, [and NYSHRL] employment discrimination claims is the same.”).

This framework places the initial burden of establishing a prima facie case of discrimination on the plaintiff, who must demonstrate ' that: (1) he is a member of a protected class; (2) he was qualified for the position in question; (3) he suffered an adverse employment action; and (4) the adverse action took place under circumstances giving rise to an inference of discrimination. Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491 (2d Cir.2010). While this burden has been characterized as “minimal,” the plaintiff must still “proffer some admissible evidence of circumstances that would permit an inference of discriminatory motive.” Risco v. McHugh, 868 F.Supp.2d 75, 98-99 (S.D.N.Y.2012).

This burden then shifts to the defendant to offer “legitimate and non-discriminatory reasons for the adverse employment action demonstrated in ’plaintiffs -prima facie case.” Id. at 99 (citing Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir.2001)). The burden at this stage is also “light,” and “[t]he employer need not persuade the court that it was motivated by the reason it provides; rather it must simply articulate an explanation that, if true, would connote lawful behavior.” Id. (citations and emphasis omitted). Importantly, “[t]his burden is one of production, not persuasion; it ‘can involve no credibility assessment.’” Id. (citations omitted).

The burden then remains with the plaintiff to produce sufficient evidence to cast doubt on the defendant’s legitimate, non-retaliatory reasons. Sharpe v. Utica Mut. Ins. Co., 756 F.Supp.2d 230, 249 (N.D.N.Y.2010). “Although intermediate evidentiary burdens shift back and forth under this framework, ‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’ ” Risco, 868 F.Supp.2d at 99 (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).

Notably, “in order to raise an issue of fact that is sufficiently material to defeat a motion for summary judgment, the plaintiff must produce more than simply some evidence; it must be enough evidence to support a rational finding that the defendant’s explanation for the adverse action is .actually a pretext to disguise discrimination.” Barounis v. N.Y.C. Police Dep’t, No. 10 Civ. 2631(SAS), 2012 WL 6194190, at *6 (S.D.N.Y. Dec. 12, 2012) (citations omitted). In other words, a plaintiff must do “more than cite to [his] mistreatment and ask the court to conclude that it must have been related to [his] race.” Id. (quoting Lizardo v. Denny’s Inc., 270 F.3d 94, 104 (2d Cir.2001)).

Here, it is undisputed that the Plaintiff is a member of a protected class in terms of race and color and established basic eligibility for the position of Food Inspector 1. The Plaintiff contends that he was subjected to “multiple adverse employment actions.” The Defendant takes umbrage with all of these, charapterizing the majority as minor issues that do not rise to the level of an “adverse employment action.”

For the sake of clarity, the Court structures its discussion of the Plaintiffs claim of discrimination and the required elements by the alleged individual acts of discrimination under Sections 1983, 1981, and the NYSHRL. The Court will then address the Plaintiffs cumulative or aggregate theory of “adverse employment actions.”

2. Adverse Employment Actions Considered Individually

Employment actions that the Second Circuit has deemed sufficiently disadvantageous to constitute an “adverse employment action” include “ ‘a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation.’ ” Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir.2008) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir.2004) (internal quotation marks omitted)). “[T]here is no exhaustive list of what constitutes an adverse employment action. Courts have held that termination, demotion, denial of promotion, addition of responsibilities, involuntary transfer that entails objectively inferior working conditions, denial of benefits, denial of a requested employment accommodation, denial of training that may lead to promotional opportunities, and shift assignments that make a normal life difficult for the employee, among other things, constitute adverse employment actions.” Little v. NBC, 210 F.Supp.2d 330, 384 (S.D.N.Y.2002).

The Court first considers the failure of DEC to notify the Plaintiff of his hiring for more than two weeks after his interview. Although “adverse employment actions extend beyond readily quantifiable losses, ‘not everything that makes an employee unhappy is an actionable adverse action.’ ” Sank v. City Univ. of New York, No. 94 Civ. 0253(RWS), 2003 WL 1807142, at *10 n. 24 (S.D.N.Y. Apr. 7, 2003) (citation omitted). Thus, the alleged belated failure to so notify the Plaintiff is plainly not actionable.

Relatedly, the Court also finds that the failure to receive a “welcome” letter or the Plaintiffs exclusion from certain meetings plainly does not rise to an “adverse employment action” as neither affected the terms and conditions of the Plaintiffs employment.

The Court pauses to note that, in his papers, the Plaintiff repeatedly conflates the required element of “adverse employment action” for a discrimination claim with the required showing of disparate treatment — that is to say, not every action taken by an employer, even if taken in a discriminatory manner compared to other employees, is actionable discrimination under Section 1983, 1981, and the NYSHRL. In other words, no matter how much the Plaintiff was treated differently than other employees in terms of “welcome letters” and other seemingly trivial matters, such conduct is not actionable under those statutes absent 'a concomitant “adverse employment action.”

Circling back to the alleged adverse employment actions, the Court finds that the Plaintiffs contention that Ritchie prevented him from becoming ISSC-compliant is belied by the summary judgment record, and, even if true, is not an “adverse employment action.” Indeed, the record indicates that the Plaintiffs standardization expiration date was August 1, 2016 and the Plaintiff concedes that “he may have been standardized in name.” (Combined Rule 56.1 Statement, at ¶ 104.) Regardless, even if Ritchie prevented the Plaintiff from becoming ISSC-compliant, the fact that (1) the New York State Department of Civil Service’s description of the Food Inspector 1 position made no reference to the ISSC or to ISSC standardization requirements; (2) the Plaintiffs performance standards do not refer to ISSC standardization and (3) neither the notice of intent to temporarily reassign nor the notice of discipline made reference to ISSC standardization, defeats any contention that Ritchie’s alleged obstructionism of the Plaintiffs becoming ISSC-com-pliant constituted an “adverse employment action.!’

Similarly, the Plaintiffs contention that he was not adequately trained does not, on this record, constitute an “adverse employment action.” Indeed, the denial of professional training opportunities may constitute an “adverse employment action” “only where an employee can show ‘material harm’ from the denial, ‘such as a failure to promote or a loss of career advancement opportunities.’ ” Trachtenberg v. Dep’t of Educ. of City of New York, 937 F.Supp.2d 460, 468 (S.D.N.Y.2013) (citation omitted); see Novak v. Waterfront Com’n of N.Y. Harbor, 928 F.Supp.2d 723, 731 (S.D.N.Y.2013).

Here, there is no evidence that any denial of professional training materially harmed the Plaintiff. Of relevance here, the Plaintiff was hired by A & M before his resignation from DEC and the Plaintiff does not bring a “failure to promote” claim.

The Court also finds that the reinspection by the other Food Inspector Is of suppliers previously inspected by the Plaintiff does not constitute an “adverse employment action.” With respect to heightened scrutiny by an employer, it is well-settled that “[t]o qualify as an adverse employment action, excessive scrutiny must be accompanied by unfavorable consequences.” Scafidi v. Baldwin Union Free School Dist., 295 F.Supp.2d 235, 239 (E.D.N.Y.2003); see also Weeks v. N.Y. State Div. of Parole, 273 F.3d 76, 86 (2d Cir.2001) (“It hardly needs saying that a criticism of an employee ... is not an adverse employment action.”), abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); Hubbard v. Port. Auth. of New York and New Jersey, No. 05 Civ. 4396(PAC), 2008 WL 464694, at *12 (S.D.N.Y. Feb. 20, 2008) (stating that “courts in this circuit have found that reprimands and ... excessive scrutiny do not constitute adverse employment actions in the absence of other negative results such as a decrease in pay or being placed on probation”) (internal quotation marks and citations omitted); Castro v. New York City Bd. of Educ. Personnel, No. 96 Civ. 6314(MBM), 1998 WL 108004, at *7 (S.D.N.Y. Mar. 12, 1998) (stating that “although reprimands and close monitoring may cause an employee embarrassment or anxiety, such intangible consequences are not materially adverse alterations of employment conditions”). Here, there is no evidence that any heightened scrutiny oh the Plaintiff was accompanied by other tangible, unfavorable consequences.

The Court also finds that the “unsatisfactory” mark given to the Plaintiff in April 2012 did not constitute an adverse employment action for purposes of the anti-discrimination statutes. Leon v. Dep’t of Educ., 16 F.Supp.3d 184, 202 (E.D.N.Y.2014) (“Plaintiff argues that deprival of her top-choice teaching assignment, negative performance evaluations, exclusion from certain extracurricular school activities, and questioning as to when she would retire constitute adverse employment actions. But, none of those acts rises to the level of a materially adverse change in the terms and conditions of her employment sufficient to state a claim under the ADA ... [and] NYSHRL”) (emphasis added); see also Benedith v. MAlverne Union Free Sch. Dist., 38 F.Supp.3d 286, 324-25, No. 11-CV-5964 (ADS)(GRB), 2014 WL 4056554, at *32 (E.D.N.Y. Aug. 15, 2014). “A plaintiffs ‘subjective disagreement with [his or her] reviews is not a viable basis for a discrimination claim.’ ” Khan v. Abercrombie & Fitch, Inc., No. 01 CIV. 6163(WHP), 2003 WL 22149527, at *7 (S.D.N.Y. Sept. 17, 2003) (citing Valentine v. Standard & Poor’s, 50 F.Supp.2d 262, 284 (S.D.N.Y.1999), aff'd, 205 F.3d 1327 (2d Cir.2000)). Nor does the Court find that Ritchie’s failure to meet with the Plaintiff for his evaluations rises to the level of an “adverse employment action.”

The Court next considers the search of the Plaintiffs desk by Ritchie, Athawes, and Usbeck. According to the Plaintiff, an incomplete inspection report pertaining to Aqua Best had been in his desk, taken, and copied and used as additional material to interrogate him during the June 26, 2012 interrogation. However, none of the charges in the notice of discipline pertained to Aqua Best, and, in any event, the notice of discipline itself, as explained later, did not constitute an “adverse employment action.” Under these circumstances, the search of the Plaintiffs desk, while intrusive and perhaps unprofessional, did not constitute an “adverse employment action,” as such conduct did not materially change the terms and conditions of his employment. Davis v. NYS Dep’t of Corr. Attica Corr. Facility P.O. Box 149 Attica, N.Y. 14011, 46 F.Supp.3d 226, 235-36, No. 10-CV-6641 (EAW), 2014 WL 4542970, at *7 (W.D.N.Y. Sept. 12, 2014) (“There is nothing in the record to support the conclusion that the alleged search [of the Plaintiffs office] materially altered the terms and conditions of Plaintiffs employment.”); Roff v. Low Surgical & Med. Supply, Inc., No. CV033655(SJF)(JMA), 2004 WL 5544995, at *1 (E.D.N.Y. May 11, 2004) (“plaintiffs allegation that her vehicle and personal belongings were searched also does not constitute an adverse employment action, as such conduct did not materially change the terms and conditions of her employment.”); see also Sharpe v. Utica Mut. Ins. Co., 756 F.Supp.2d 230, 243 (N.D.N.Y.2010).

Finally, the Court pauses to note that even if the search of the Plaintiffs desk constituted an “adverse employment action,” a claim under § 1981 or the NYSHRL based on this action could not be asserted against Gilmore or Hastback, who had no advance knowledge of, or participation in, the search.

The Court next finds that the notice of discipline issued against the Plaintiff, without more, does not qualify as an “adverse employment action.” Weeks, 273 F.3d at 86 (holding that a notice of discipline and counseling memo were insufficient to constitute an adverse employment action). This is because DEC did not pursue the notice of discipline nor was it was ever adjudicated under the CBA. The Plaintiff speculates about how the notice of discipline, and DEC’s alleged failure to remove it from his personnel file, affected his career opportunities. However, he has not presented any evidence that it actually did so, such as showing that he applied for and was denied a promotion to the next level in DEC. See generally Bowen-Hooks v. City of New York, 13 F.Supp.3d 179, 218-19 (E.D.N.Y.2014).

In addition, the Plaintiff has no basis for claiming that A & M, or any other employer, knew of the pending disciplinary proceeding, let alone that it factored into a decision to hire or not hire the Plaintiff after his resignation from DEC. Compare Mento v. Potter, No. 08-CV-74S (WMS), 2012 WL 1908920, at *8 (W.D.N.Y. May 25, 2012) (“Gavner went out of his way to warn others, alerting Maryann Molenda when she spoke to Gavner about assigning a work detail to Plaintiff, that Mentó had disciplinary matters in her file. Molenda then interviewed Mentó for the position of complaint and inquiry clerk, and rejected Plaintiff in October of 2005. It is thus certainly possible that disciplinary charges impacted her chances of getting that position.”) (internal citations omitted).

The Court next considers the fact that the Plaintiff was denied reimbursement for his use of a personal vehicle for work-related duties. To the extent the Plaintiff seeks redress for not being reimbursed for his commute from home to work, this denial could not constitute an “adverse employment action” as it was consistent with DEC policy. (Combined Rule 56.1 Statement, at ¶ 180.) To the extent the Plaintiff seeks redress for unfairly being denied access to a DEC vehicle, this denial also could not constitute an “adverse employment action” because there is no evidence that access to a DEC vehicle was a guaranteed employment benefit, or even that it was a term or condition of the Plaintiffs employment.

Again, although “adverse employment actions” may include lesser actions than those stated above — i.e., termination, demotion, etc. — such lesser actions must have the effect of changing “the total circumstances of [the employee’s] working environment ... to become unreasonably inferior and adverse when compared to a typical or normal, not ideal or model, workplace.” Phillips v. Bowen, 278 F.3d 103, 117 (2d Cir.2002), aff'd 112 Fed.Appx. 761 (2d Cir.2004). Here, the Plaintiffs inability to use a DEC vehicle did not have the effect of causing his working environment to become “inferior” or “adverse” as compared to the “normal” workplace. See Knox v. Town of Se., No. 11 CIV. 8763(ER), 2014 WL 1285654, at *10 (S.D.N.Y. Mar. 31, 2014) (“being denied the ability to keep the Town vehicle overnight cannot be characterized as an ‘adverse employment action’ under even the most liberal reading of the phrase.”)

Similarly, to the extent the Plaintiff seeks redress for not being able to drive his personal vehicle directly to an inspection site, even if contrary to prior assurances by Hastback and even if he did not charge for mileage, there is no evidence that this denial affected the terms or conditions of his employment with DEC. Nor does the Defendants’ denial to the Plaintiff to early morning access to the East Se-tauket DEC office qualify as an “adverse employment action” because the summary judgment record indicates that, with a SG-18 pay level, the Plaintiff was not entitled to swipe cards for such access.

Again, the Court makes clear that whether the Plaintiff was treated differently than Athawes and Usbeck with regard to personal vehicle reimbursement or access to a DEC vehicle is irrelevant to the separate question whether that treatment constituted an “adverse employment action” under McDonnell Douglas.

With regard to the “Interrogation” of the Plaintiff, the Court notes that the Second Circuit has instructed that “an employee does not suffer a materially adverse change in the terms and conditions of employment where the employer merely enforces its preexisting disciplinary policies in a reasonable manner.” Joseph v. Leav-itt, 465 F.3d 87, 91 (2d Cir.2006). Thus, even if the “Interrogation” constituted disciplinary action under the CBA, it does not follow that this disciplinary action constituted an “adverse employment action” for purposes of Section 1983, Section 1981, and the NYSHRL. Lyman v. NYS OA-SAS, 928 F.Supp.2d 509, 521 (N.D.N.Y.2013) (“interrogations alone are insufficient as a matter of law to establish an adverse employment action.”)

That said, the fact that the “Interrogation” was conducted in an exposed public room and possibly contrary to DEC policy, as the Plaintiff did not receive a formal notice of violating any workplace rules prior to the “Interrogation,” suggests that it may have been conducted in an unreasonable manner and thus may have been an “adverse employment action.”

However, “it is not enough for the Plaintiff to allege a violation of the Constitution or federal law under Section 1983. The Second Circuit has long recognized that a plaintiff asserting claims under § 1983 must allege the personal involvement of each individual defendant acting under col- or of state law.” 545 Halsey Lane Properties, LLC v. Town of Southampton, 39 F.Supp.3d 326, 346, No. 14-CV-800 (ADS)(GRB), 2014 WL 4100952, at *18 (E.D.N.Y. Aug. 19, 2014) (Spatt, J.); Back v. Hastings On Hudson Union Free School Dist., 365 F.3d 107, 122 (2d Cir.2004) (“Additionally, ‘[i]n this Circuit personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.’ ”) (quoting McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977)).

Applying that requirement here, the Court notes that it is undisputed that none of the Defendants took part in or were present at the “Interrogation.” Even if the Defendants were the source of any of the information, that the Plaintiff was asked about, the allegedly unlawful issues with the “Interrogation” were not its substance, but its procedure, namely that it was done in public view and prematurely. In other words, while the Defendants may have played a role in the events leading up to the “Interrogation” and influenced what was said during the Interrogation, there is no evidence that the Defendants had anything to do with these potentially unlawful infirmities and, thus, no role in the “Interrogation” being “adverse.” Under these circumstances, the Court declines to find that the “Interrogation,” which was expressly provided for in the CBA, constituted an “adverse employment action” in which any of the Defendants played a personal role. In any event, the Court would find that the “Interrogation” did not occur under circumstances giving rise to an inference of discrimination on the basis of race or color.

The Court reaches a somewhat different conclusion with respect to the change in the Plaintiffs evaluation period, even if proper. Flynn testified that a failure to conduct a recertification in a timely manner required an evaluation of “satisfactory ... which would entitled the employee to receive [additional] pay.” (Flynn Dep., at 71.) To be sure, the Court distinguishes between the negative performance evaluations, which by themselves are not “adverse employment actions,” and the alleged departure from protocol in its procedures, which may constitute an “adverse employment action.”

In any event, the Court finds that there is no genuine issue of material fact as to whether any of the Defendants played a personal role in the change in evaluation period. To the contrary, the summary judgment record indicates that this change was made at the direction of Montross based on written guidance from the Governor’s Office of Employee Relations, notwithstanding that Hastback had been “grinding” or going back and forth on this issue. (Combined Ruled 56.1 Statement, at ¶ 231.) Accordingly, the Court declines to find that the change in the Plaintiffs evaluation period constituted an “adverse employment action” in which any of the Defendants played a.personal role. In any event, the Court finds that the change in the Plaintiffs evaluation period did not occur under circumstances giving rise to an inference of discrimination o