Greenfield v. McDonalds Corp

Filing 41

ORDER granting 23 Motion for Summary Judgment. See attached order. Signed by Judge Vanessa L. Bryant on 9/1/11. (Hildebrand, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

LAMONT D. GREENFIELD,
Plaintiff,

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v.
MCDONALD’S CORPORATION,
Defendant.

CIVIL ACTION NO.
3:10-cv-40 (VLB)
September 1, 2011

MEMORANDUM OF DECISION GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [Doc. #23]
I. Introduction
In this one-count Complaint, Plaintiff LaMont D. Greenfield claims that
Defendant McDonald’s Restaurants of Connecticut (“McDonald’s”) wrongfully
terminated his employment on the basis of his race and/or color (African
American/black) in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§2000e et seq. (“Title VII”). Plaintiff concedes that while on duty, he and a
subordinate employee engaged in an altercation that deteriorated into a physical
fight in the presence of other employees and customers. Plaintiff claims that his
December 27, 2007 termination occurred due to his race and not as the result of
his conduct in engaging in a physical fight in contravention of McDonald’s
employment policy against fighting in the workplace. Plaintiff further alleges that
at least a year prior to his physical altercation, two other employees at the same
restaurant who were neither black nor African American, were involved in a
physical altercation but were not similarly disciplined. Plaintiff seeks damages for
the alleged discriminatory conduct.

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Currently pending before the Court is a motion for summary judgment for
the one-count pursuant to Fed. R. Civ. P. 56(c).

II. Factual & Procedural Background
A. Plaintiff’s Employment with McDonald’s
On July 12, 2005 Plaintiff, a black male, started working as a crew member
at the McDonald’s owned restaurant located at 109 Salem Turnpike, Norwich,
Connecticut. [Dkt. #25, Def. Rule 56(a) Stmt. ¶¶3, 17]. At the time of the incident
on December 23, 2007, Plaintiff worked as a Second Assistant Restaurant
Manager, a salaried management position. Id. at ¶¶18, 23. Plaintiff’s employment
was at will. Id. at ¶3.
All McDonald’s employees are required to participate in an orientation
upon their hiring, which includes a review of McDonald’s policies and
procedures. Id. at ¶4. Each employee verifies that he has completed the
orientation by signing a checklist, providing McDonald’s with various documents,
and receiving copies of various McDonald’s policies and procedures. Id. at 5.
When Plaintiff began his employment in July 2005 as an hourly crew
member, he participated in the orientation process and signed three documents.
[Dkt. #25, Def. Rule 56(a) Stmt. ¶6].The first was the checklist upon his
completion of the program; The second was an Acknowledgment and Affirmation
to Comply with Policies, a document stating that he would comply with all of
McDonald’s policies and procedures; Id. at ¶¶6-7. The third was the “McDonald’s
Promise,” in which he pledged not to fight and to utilize conflict resolution

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alternatives without the use of physical force. Id. at ¶¶ 6-7, 12-16. An excerpt of
the McDonald’s promise provides: “I promise that I will not fight with anyone,
even if I am provoked. I will find other ways to resolve conflict without using
physical force, even if I must enlist help from police.” [Dkt. #25, Ex. B-4).
Additionally, Plaintiff received training during his employment on how to
deal with other McDonald’s employees, specifically instructing him that if an
issue arose with an employee, he should pull the other employee aside so it was
out of the public’s view and/or ask the employee to leave and to call the police if
needed. [Dkt. #25, Def. Rule 56(a) Stmt. ¶8]. Lastly, Plaintiff signed and received
documents about McDonald’s Zero Tolerance Policy Regarding Discrimination
and Sexual Harassment. Id. at ¶¶9-11. This policy states that: “McDonald’s
strongly believes that employees... should be treated fairly and without regard to
race, color... or any other prohibited basis. This applies to all employment
practices.... Discrimination or harassment of a McDonald’s employee, whether by
another employee, supplier, vendor, or customer, will not be tolerated.” [Dkt. #25,
Ex. B-3].
On December 23, 2007 between 10 a.m. and 10:30 a.m., Store Manager
Brian Gervais left the restaurant. Id. at ¶22. During the course of Mr. Gervais’s
absence, Plaintiff was in charge of the nine to eleven crew members working at
that time. [Dkt. #25, Def. Rule 56(a) Stmt. ¶23]. George Greeno, a Caucasian crew
member, worked at the “second” drive-thru window area, located in the back of
the restaurant. Id. at 24.

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At some point, a problem with the orders occurred and Plaintiff advised the
employees at the drive-thru to stop taking orders. Id. at ¶25. Mr. Greeno took
another order despite receiving instructions from Plaintiff to do otherwise. Id. at
¶26. Plaintiff interrupted the order and asked the customer to wait a moment.
[Dkt. #25, Def. Rule 56(a) Stmt. ¶26]. Although Defendant disputes it, Plaintiff
asserts he then took over the handling of the orders after speaking directly with
Mr. Greeno. [Dkt. #34, Pl. Mem. in Opp. to Def. Motion for Summary Judgment, #3,
Ex. B, Greenfield Dep. at 109:4-22].
Defendant asserts that Mallory Young, another McDonald’s crew member,
worked in close enough proximity to witness the altercation between Plaintiff and
Mr. Greeno. [Dkt. #25, Def. Rule 56(a) Stmt. ¶27, Ex. A-3, Young Aff.]. According
to Defendant, Plaintiff got “in [Mr. Greeno’s] face,” scolding him about his
decision to proceed with taking the customer’s order. [Dkt. #25, Def. Rule 56(a)
Stmt. ¶27, Ex. A-3, Young Aff.]. According to both Mr. Greeno and Ms. Young’s
statements, Plaintiff supposedly “baited [Mr. Greeno] with terms like ‘hit me, hit
me.” [Dkt. #25, Def. Rule 56(a) Stmt. ¶27, Ex. A-3, Young Aff.; Ex. A-2, Greeno
Aff.]. Plaintiff admitted he was unaware of Ms. Young’s location in the restaurant
at the time of the altercation. He nonetheless asserts that she could not have
heard or seen the incident because she was not present when it occurred. [Dkt.
#34, Pl. Mem. in Opp. to Def. Motion for Summary Judgment, #3, Ex. B, Greenfield
Dep. at 178:14-23].
Mr. Greeno then told Plaintiff he was clocking out and leaving. [Dkt. #25,
Def. Rule 56(a) Stmt. ¶28]. According to Plaintiff, while walking past Plaintiff, Mr.

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Greeno bumped into the Plaintiff and said “fuck you, nigger.” [Dkt. #34, Pl. Mem.
in Opp. to Def. Motion for Summary Judgment, #3, Ex. B, Greenfield Dep. at 113:314]. Plaintiff asserts that Mr. Greeno then repeated his comment, “fuck you,
nigger,” to which Plaintiff claims that he responded by telling Mr. Greeno to leave
the store, and instructing Mr. Greeno not to “place his hands on him again.” Id. at
115:4-14. Plaintiff further claims that Mr. Greeno then gave Plaintiff a small push
in the chest. Id. at 115:16-23; 116:1-4. Plaintiff asserts that immediately after this
push, Mr. Greeno grabbed him by the neck, placing him in a headlock with his
right arm, choking him. Id. at 117:2-20. Plaintiff then wrapped his arm around Mr.
Greeno’s waist and pushed Mr. Greeno’s body into the wall, and both Plaintiff and
Mr. Greeno fell to the floor. [Dkt. #25, Def. Rule 56(a) Stmt. ¶29].
This altercation occurred in front of McDonald’s employees and customers.
[Dkt. #25, Def. Rule 56(a) Stmt., #2, Ex. B, Greenfield Dep. at 102-103.]. Two
paramedics who happened to be eating in the restaurant at this time witnessed
either some or all of the altercation. According to Plaintiff, they broke up the
fight. [Dkt. #25, Def. Rule 56(a) Stmt. ¶30]. Plaintiff then asked the ambulance
personnel to call the police. [Dkt. #25, Def. Rule 56(a) Stmt., #2, Ex. B, Greenfield
Dep. at 130:12-21]. Mr. Greeno waited outside the restaurant for Mr. Gervais, the
store manager to return. [Dkt. #25, Def. Rule 56(a) Stmt. ¶33]. When Mr. Gervais
returned he asked both employees to write a statement about what had
happened. Both employees provided written statements about the incident. Ms.
Young also provided a statement at Mr. Gervais’s request. Id. at ¶36. Copies of
the statements were attached as exhibits to Defendant’s Rule 56(a) Statement as

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Exhibits 1, 2 and 3, respectively. {Dkt. #25]. In his statement, the Plaintiff wrote
that Mr. Greeno “walked up to the front counter proceeded to check himself out
using bad language I told him if he checks out not return he checks out walks
back toward where he came from Bumping me and saying fu nigger, and I told
him to leave out of the store he proceeds to get in my face and push me in the
chest and advise him to leave again and do not put your hands on me again he
did at that time grab me around my neck before I could react and from there we
went to the floor in the dish area.” (sic) [Dkt 25, Exhibit A-1]. The Plaintiff
challenges the date on which Young’s statement was given based on the fact that
it bears a date after the day he was terminated. McDonald's Operation Manager,
Jenna Lisella, stated that McDonald's had the statement in its possession and
reviewed it at the time of its decision. [Dkt. #26 Ex. A Lisella Decl. at ¶19]. In
addition, Young affirmed under oath that she wrote the statement right after the
Incident and submitted it to McDonald's that same day. [Dkt. #26, Ex. A at ¶¶ 4, 8].

B. McDonald’s Termination of Plaintiff’s Employment
After the incident, Plaintiff asked if he could leave for the day. Id. at ¶44.
Mr. Gervais agreed but stated that he would have to collect Plaintiff’s restaurant
keys. Id. Plaintiff asked Mr. Gervais if turning in his keys indicated that he was
fired. Mr. Gervais responded that this was standard procedure. Id. at ¶¶45-46.
Mr. Gervais contacted McDonald’s Operations Manager Jenna Lisella to
discuss the incident. [Dkt. #25, Def. Rule 56(a) Stmt. ¶55]. The two discussed the

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statements and what each individual (Plaintiff, Mr. Greeno, and Ms. Young) said
had occurred, along with McDonald’s stance against fighting in the workplace. Id.
Mr. Greeno’s statement described the incident, stating that after Plaintiff
instructed him to stop taking orders at the drive-thru window, Mr. Greeno “had
enough” so he “clocked out and was preparing to leave, when Lamont proceeded
to get into a verbal altercation, blocking me from trying to pass him. [Dkt. #25, Ex.
A-2]. Mr. Greeno further stated that Plaintiff began screaming in his face, yelling
“hit me” while blocking his path to exit, so Mr. Greeno pushed Plaintiff to get him
out of the way, and Plaintiff then attacked him and Mr. Greeno threw him to the
ground. Id.
Ms. Young’s statement describing the incident stated that after being
scolded by Plaintiff for disobeying his instruction to stop taking orders at the
drive-thru window, Mr. Greeno said “Fuck you” to Plaintiff. [Dkt. #25, Ex. A-3]. Ms.
Young further stated that Plaintiff, in response, “got in [Mr. Greeno’s] face,” and
yelled “hit me” repeatedly. Id. Ms. Young stated that Mr. Greeno then hit Plaintiff
and the two began wrestling. Id.
Considering these statements and the McDonald’s policy against fighting,
Ms. Lisella believed that Plaintiff, particularly due to his role as Second Assistant
Manager, had acted inappropriately and even though Plaintiff claimed he did not
make the first physical move, according to McDonald’s policy Plaintiff should
have removed himself from the situation and, if necessary, called the police. [Dkt.
#25, Def. Rule 56(a) Stmt., Ex. A, Lisella Decl. ¶ 25]. Both Mr. Greeno and Plaintiff

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were terminated as McDonald’s employees because of the incident. [Dkt. #25, Def.
Rule 56(a) Stmt. ¶¶57, 62].
When Plaintiff discussed his termination with Ms. Lisella, Ms. Lisella
stated the violation of the “no tolerance on fighting policy” as the reason for
Plaintiff’s termination. Id. at ¶57. Plaintiff told her about the racial slur and made
to him by Mr. Greeno. [Dkt. #34, Pl. Mem. in Opp. to Def. Motion for Summary
Judgment, #3, Ex. B, Greenfield Dep. at 173:13-25].

C. Plaintiff’s Claim of Discrimination
Plaintiff bases his claim of discrimination on the fact that prior to his
termination, two crew members of a different race, both not “African-American or
black,” had been involved in a physical altercation and were suspended but not
fired. [Dkt. #25, Def. Rule 56(a) Stmt. ¶64]. The two employees, Pedro Garcia, of
Hispanic descent, and Kevin Lee, of Asian descent, were both crew members at
the time of their altercation. Id. at ¶67. Mr. Garcia jumped on Mr. Lee in a walk-in
refrigerator outside the view of customers and employees. [Dkt. #34, Pl. Mem. in
Opp. to Def. Motion for Summary Judgment, #3, Ex. B, Greenfield Dep. at 182].
Neither Mr. Lee nor Mr. Garcia was terminated for violating McDonald’s policy on
fighting. [Dkt. #34, #12 Pl. Stmt. of Disp. Facts, ¶35]. Plaintiff denies that
McDonald’s maintains a no-tolerance stance on fighting on the basis that in this
incident two employees were permitted to retain employment after their physical
altercation. [Dkt. #34. #11. Pl. Resp. to Def. Rule 56(a) Stmt., ¶12].

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On January 11, 2010, Plaintiff filed this action alleging that Defendant
violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e,
et seq. On February 28, 2011, Defendant filed a motion for summary judgment to
dismiss the claim. Currently pending before the Court is a motion for summary
judgment pursuant to Fed. R. Civ. P. 56(c).

III. Standard of Review
“The standards governing summary judgment are well settled.” Ford v.
Reynolds, 316 F.3d 351, 354, 379 (2d Cir. 2002). Summary judgment “should be
rendered if the pleadings, the discovery and disclosure material on file, and any
affidavits show that there is no genuine issue of material fact and that the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). Summary
judgment is appropriate if, after discovery, the nonmoving party “has failed to
make a sufficient showing on an essential element of [its] case with respect to
which [it] has the burden of proof.” Celotex v. Catrett, 477 U.S. 317, 323 (1986).
“The party seeking summary judgment has the burden to demonstrate that
no genuine issue of material fact exists.” Ford, 316 F.3d at 354. “[T]he burden on
the moving party may be discharged by ‘showing’ - that is point out to the district
court - that there is an absence of evidence to support the nonmoving party’s
case.” PepsiCo. Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (internal
citations omitted). “If the party moving for summary judgment demonstrates the
absence of any genuine issue as to all material facts, the nonmoving party must,
to defeat summary judgment, come forward with evidence that would be

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sufficient to support a jury verdict in its favor.” Burt Rigid Box, Inc. v. Travelers
Prop. Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002).
The Court must “construe the evidence in the light most favorable to the
nonmoving party and . . . draw all reasonable inferences in its favor.” Huminski v.
Corsones, 396 F.3d 53, 69-70 (2d Cir. 2004) (internal citations omitted). “[I]f there
is any evidence in the record that could reasonably support a jury’s verdict for
the non-moving party, summary judgment must be denied.” Am. Home
Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315 (2d Cir.
2006) (internal citations omitted).

IV. Defendant’s Motion for Summary Judgment
A. Count One: Race Discrimination under Title VII
Plaintiff brings this employment discrimination claim under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e. Title VII makes it unlawful for an
employer to discriminate against an employee because of the employee’s race or
color. 42 U.S.C. § 2000e. Plaintiff asserts that his employer, McDonald’s, illegally
terminated him from his job on the basis of his race and color after he was
physically assaulted by a co-worker. Further, Plaintiff alleges that other similarly
situated employees, who were neither black nor African American, were
previously involved in a physical altercation but were not similarly disciplined.
Plaintiff seeks damages for the Defendant’s alleged discriminatory conduct.
Direct evidence of discrimination consists of “evidence of conduct or
statements by persons involved in the decision making process that may be

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viewed as directly reflecting the alleged discriminatory attitude.” Ostrowski v.
Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir. 1992); see also Tyler v.
Bethlehem Steel Corp., 958 F.2d 1176, 1185 (2d Cir. 1992) (“Strictly speaking, the
only ‘direct evidence’ that a decision was made because of an impermissible
factor would be an admission by the decision maker such as ‘I fired him because
he was too old’”). As no direct evidence of discrimination exists here, this
discrimination claim is analyzed under the burden-shifting framework laid out in
McDonnell Douglas Corp. v. Green. 411 U.S. 792, 802-03 (1973); See Graham v.
Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000) (analyzing a claim of
discrimination on the basis of race under Title VII under the burden-shifting
analysis outlined in McDonnell Douglas); Goodwine v. Conn. Dep’t of Children &
Families, No. 3:08cv532, 2011 U.S. Dist. LEXIS 3505, at *12 (D. Conn. Jan. 14,
2011)(reviewing a claim of disparate treatment on the basis of race under Title VII
under “the familiar burden-shifting framework set forth in McDonnell Douglas”).
In order to establish a prima facie case of race or color discrimination
under this method, a plaintiff must show that: (1) he is a member of a protected
class; (2) he was performing his duties satisfactorily; (3) he was subject to
adverse employment action; and (4) the adverse employment action occurred
under circumstances giving rise to an inference of discrimination. Graham, 203
F.3d at 38. The Second Circuit has characterized the “evidence needed to
establish this initial burden as ‘minimal’ or ‘de minimis’.” Zimmerman v.
Associates of First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001) (emphasis in
original). If a plaintiff establishes a prima facie showing, “the burden shifts to the

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defendant, which is required to offer a legitimate non-discriminatory rationale for
its actions.” Holcolmb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008). If defendant
successfully articulates a legitimate, non-discriminatory reason for the adverse
employment action, plaintiff “may no longer rely on the presumption of
discrimination raised by the prima facie case,” Holcolmb, 521 F.3d at 141, but
must demonstrate that the legitimate non-discriminatory reason for the
termination offered is pretextual. Graham, 230 F.3d at 41.
Here, Plaintiff has established a prima facie case of discrimination. The
parties do not dispute that Plaintiff is an African American male and therefore is a
member of a protected class. It is also undisputed that the Plaintiff’s work
performance was satisfactory, as Plaintiff began as a crew member and was
ultimately promoted to Second Assistant Manager. Plaintiff suffered an adverse
employment action when the Defendant terminated Plaintiff’s employment on
December 27, 2007. Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d
Cir. 2000) (citations omitted) (holding that an adverse employment action occurs
upon a materially adverse change in terms and conditions of employment, and
includes termination of employment).
Lastly, Plaintiff’s adverse employment action occurred under
circumstances giving rise to an inference of discrimination. Plaintiff has asserted
that he was the only African American employee employed by the Defendant at
this McDonald’s branch. [Dkt. #34, #12, Pl. Stmt. of Disputed Facts ¶1].
Additionally, Plaintiff alleged that he fought Greeno in self-defense. Finally, he
alleges that employees previously involved in a similar physical altercation in

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violation of McDonald’s policy against fighting in the workplace and who were
neither African American nor black were not terminated. Id. at ¶33-34. These
facts are sufficient to satisfy the di minimis standard for the plaintiff’s prima facie
case of discrimination required by the Second Circuit. Zimmerman, 251 F.3d at
381.
It should be noted that although outside of his discrimination claim,
Plaintiff asserts that Mr. Greeno called him a “nigger” during their altercation, Id.
at ¶ 13, this comment does not provide evidence of a discriminatory motive on
the part of McDonald’s managers. “Stray remarks by non-decision makers or by
decision-makers unrelated to the decision process are rarely given weight,
particularly if they were made temporally remote from the date of decision” Tutko
v. James River Paper Co., Inc., No. 3:96CV1256, 1998 U.S. Dist. LEXIS 20614 at *13
(D. Conn. Sept. 29, 1998) (noting that “the Second Circuit has repeatedly affirmed
summary judgment in cases with far more egregious remarks by decision makers
than those alleged here”) (citing Ezold v. Wolf, Block, Schorr, and Solis-Cohen,
983 F.2d 509, 545 (3d Cir. 1992) (affirming summary judgment where the decision
maker allegedly said that “the salary workforce [ . . .] was older, had been around
too long, made too much money and enjoyed too many benefits”). Here, Mr.
Greeno, a subordinate, had no input on McDonald’s decision to terminate
Plaintiff’s employment. [Dkt. #25, Def. Rule 56(a) Stmt. ¶ 24]. Because Plaintiff
did not supply any evidence of prior incidents involving other co-workers or
McDonald’s management, Mr. Greeno’s alleged racial slur during the altercation
cannot constitute evidence of discrimination on the part of the Defendant.

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As the Plaintiff has established a prima facie case, the burden then shifts to
the Defendant to articulate a legitimate non-discriminatory reason for the adverse
employment action. McDonnell Douglas, 411 U.S. at 802. Defendant’s proffered
non-discriminatory reason for the adverse employment action is Plaintiff’s
alleged violation of company policy, stemming from his physical altercation with
Mr. Greeno. Specifically, Defendant McDonald’s alleges that Plaintiff violated the
McDonald’s Promise, a company policy “not [to] fight with anyone, even if [. . .]
provoked [, and to . . .] find other ways to resolve conflict without using physical
force, even if [an employee] must enlist help from the police.” Id. at ¶¶14, 57.
Defendant asserts that Plaintiff knew of the policy when he signed an
Acknowledgment and Affirmation to Comply with Policies agreeing to comply
with all of McDonald’s policies and procedures during his orientation. Id. at ¶7
Because a “violation of a company policy is a legitimate, nondiscriminatory
reason for an employee’s termination,” Defendant’s assertion that Plaintiff’s
violation of a company policy against fighting lead to his termination establishes
a legitimate non-discriminatory reason for the adverse employment action.
Shumway v. United Parcel Service, Inc., 118 F.3d 60, 65 (2d Cir. 1997) (holding
that violation of defendant’s “no fraternization” policy constituted a legitimate
non-discriminatory reason for terminating plaintiff’s employment); Vasquez v.
Claire’s Accessories, Inc., 392 F. Supp. 2d 342 (D. Conn. 2005) (stating that
violation of defendant’s after hours policy could constitute a legitimate nondiscriminatory basis for a decision to terminate employment); Coltin v. Corp. for
Justice Mgmt. Inc., 542 F. Supp. 2d 197 (D. Conn. 2008) (finding that the defendant

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articulated a legitimate non-discriminatory basis for its decision to determinate
the plaintiff where the defendant alleged that the termination was based on a use
of the services of a client in violation of company policies).
As Defendant articulated a legitimate, non-discriminatory reason for the
adverse employment action, Plaintiff can only succeed by demonstrating that the
Defendant’s proffered reason was merely a pretext, and that the real motivation
for the decision was illegal discrimination. McDonnell Douglas, 411 U.S. at 802.
Pretext can be established “either directly by showing ‘that a discriminatory
reason more likely motivated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.’” Johnson v. Conn.,
No. 3:10cv0175, 2011 WL 2947036, at *56 (D. Conn. July 20, 2011) (citing Weiss v.
JP Morgan Chase & Co., 332 F. App’x. 659, 661 (2d Cir. 2009)).
As evidence of pretext, Plaintiff alleges self-defense and disparate
treatment. In his statement, the Plaintiff admits that Mr. Greeno “walked up to the
front counter proceeded to check himself out using bad language .” [Dkt 25, Ex.
A-1]. Rather than disengaging, Plaintiff admits that he “told him if he checks out
not return.” Id. In response, Plaintiff states that Greeno walked back toward him
and bumped into Plaintiff and used profanity and made a racial slur. Once again,
Plaintiff failed to disengage, instead he escalated the situation by telling Greeno
to “leave out of the store.” Id. Plaintiff admits further that Greeno placed his
hands on his chest. Plaintiff admits that he continued to escalate the verbal
altercation telling Greeno “to leave again and do not put your hands on me
again.” Id. Plaintiff admitted that he would have reacted in kind in response to

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Greeno’s physical aggression when he stated Greeno “grabb[ed] me around my
neck before I could react”. Id. The verbal altercation, which escalated into a
physical altercation, occurred in front of McDonald’s employees and customers.
Greenfield Dep. at 102-103. By his own statement Plaintiff admits that he
participated in the verbal altercation rather than diffusing it. Plaintiff has not
raised a genuine issue of material fact as to whether he violated McDonald’s
conflict avoidance and anti-fighting policies. See Sanchez v. Conn. Natural. Gas.
Co., 421 Fed.Appx. 33 (2d Cir. 2011) (holding that plaintiff “failed to offer evidence
from which a reasonable jury could infer that the legitimate non-discriminatory
reason for discharge offered by defendant, that his discharge was warranted
when his later payment arrangements for a fellow employee as well as one of his
tenants violated multiple company policies-- was a pretext for discrimination”)
(citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)); see also Pacenza
v. IBM Corp., 363 Fed.Appx. 128 (2d Cir. 2010) (holding that employer's proffered
reason for firing employee with post-traumatic stress disorder (PTSD), because
he violated company policies by accessing sexual materials on the internet while
at work, was legitimate and nondiscriminatory and was not shown to be pretext
for disability discrimination); Williams v. Consolidated Edison, 255 Fed.Appx. 546
(2d Cir. 2007) (holding that employer’s proffered reason for adverse employment
action was not a pretext for discrimination where employee made statements
referring to the possibility of driving a truck into the trailers of employer’s facility
and to going “postal” at work in violation of employer’s zero tolerance policy
regarding threats of violence in the workplace). Accordingly, a reasonable jury

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could not find that McDonalds used Plaintiff’s role in the altercation as pretext for
racial discrimination.
Finally, Plaintiff claims in support of his claim of pretext that two similarly
situated employees, Mr. Lee and Mr. Garcia, were not terminated despite
engaging in similar activity in violation of the company policy against fighting.
[Dkt. #25, Def. Rule 56(a) Stmt. ¶64]. In order to be similarly situated, a plaintiff
must show he was “similarly situated in all material respects” to the individuals
with whom he seeks to compare himself with. Shumway, 118 F.3d at 64. In
Graham, the Second Circuit expressly declined to adopt the Sixth Circuit
standard for “similarly situated” requiring that the comparators must have dealt
with the same supervisor. 230 F.3d at 40, n. 1. Instead, the Second Circuit
emphasized that “what constitutes ‘all material respects’ therefore varies
somewhat from case to case.’” Id. at 40. Accordingly, the Second Circuit held
that a finding of “similarly situated in all material respects” must be judged based
on “(1) whether the plaintiff and those he maintains were similarly situated were
subject to the same workplace standards and (2) whether the conduct for which
the employer imposed discipline was of comparable seriousness.” Graham, 230
F.3d at 40. The Second Circuit further explained that “the standard for comparing
conduct “requires a reasonably close resemblance of the facts and
circumstances of plaintiff’s and comparator’s cases, rather than a showing that
both cases are identical.” Graham, 230 F.3d at 40. (citation omitted).
Applying the standard as articulated by the Second Circuit, it is apparent
that Plaintiff has not met his burden of establishing that he was “similarly

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situated” to his comparators. Plaintiff asserts that although his position as
Second Assistant Manager was different than that of Mr. Lee and Mr. Garcia who
were regular crew members, Plaintiff and his comparators were all subject to the
same McDonald’s company policy against fighting in the workplace. [Dkt. #34,
#12, Pl. Stmt. of Disputed Facts ¶39]. Defendant, however, asserts that Plaintiff’s
role as a supervisor imposed upon him a heightened burden regarding the
workplace policy against fighting, thereby placing him in a different position than
Mr. Lee and Mr. Garcia as crew members. [Dkt. #25, Def. Rule 56(a) Stmt.¶70].
Even construing the facts in a manner most favorable to the non-moving party,
the parties have raised an issue of disputed fact regarding the nature of Plaintiff’s
duty under the workplace policy in comparison to the duties of Mr. Lee and Mr.
Garcia, his comparators.
Even assuming arguendo, however, that Plaintiff and his comparators were
subject to the same workplace standards, Plaintiff cannot sustain his burden of
establishing that Defendant’s proffered legitimate non-discriminatory reason is
pretextual because his conduct was not of comparable seriousness to that of Mr.
Lee and Mr. Garcia. In comparing conduct under the “comparable seriousness”
standard, the Second Circuit has distinguished based on factors indicating
different levels of severity. For example, in Cruz v. Coach Stores, Inc., the Second
Circuit held that offensive behavior involving verbal exchanges is not of
comparable seriousness to physical altercations. 202. F.3d 560, 568 (2d Cir. 2000).
Similarly, in Smith v. New Venture Gear, Inc., the Northern District of New York
held that a verbal threat made outside of the plant was not of comparable

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seriousness to “an actual physical altercation during work hours inside the
plant.” No. 5:00-CV-1151, 2008 WL 200015, at *9 (N.D.N.Y Jan. 22, 2008).
Here, the fight between Mr. Garcia and Mr. Lee took place in McDonald’s
refrigerator outside of the view of customers and other McDonald’s employees.
[Dkt. #25, Def. Rule 56(a) Stmt. ¶ 68]. However, the altercation between Plaintiff
and Mr. Greeno occurred in full view of customers and in front of other
McDonald’s employees and customers played a role in dispersing the fight. Id. at
¶¶ 37-39. Moreover, Plaintiff’s involvement in a physical altercation as a
supervisor is more disruptive to the overall stability of the workplace than an
altercation involving non-management level employees. See Hagans v. Budd Co.,
597 F.Supp. 89 (D.C.Pa. 1984) (holding that “fighting with an employee is not
comparable to fighting with a supervisor because the latter conduct significantly
undermines management’s ability to direct the activities of the workforce
effectively”). Since the two acts are likely not of comparable seriousness, Plaintiff
has not satisfied his burden in establishing that Defendant’s legitimate nondiscriminatory reason for termination was pretextual. It is also notable that the
Plaintiff did not employ alternative dispute resolution techniques. Rather than
disengaging and deescalating the situation by remaining silent and allowing
Greeno to leave, he engaged Greeno and escalated the situation by telling Greeno
not to return if he checked-out himself, not to put his hands on him and to leave,
all in the presence of customers and other employees.

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V. Conclusion
The facts presented by Plaintiff, taken as true, do not present any issue of
material fact for which a reasonable jury could find in his favor. Plaintiff has not
presented sufficient evidence to discredit the Defendant’s proffered legitimate,
non-discriminatory justification for his termination by proving that racial
discrimination was the real reason for his termination. Accordingly, summary
judgment as to Plaintiff’s Title VII claim (Count One) should be GRANTED.

IT IS SO ORDERED.

/s/
Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: September 1, 2011.

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