McLeod v. RBS Securities, Inc. et al
Filing
82
RULING and ORDER granting 73 Motion for Summary Judgment. Signed by Judge Robert N. Chatigny on 9/30/2015. (Panchenko, I)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
KIRK MCLEOD
Plaintiff,
v.
RBS SECURITIES INC. AND
MATTHEW IAIN PAINE,
Defendants.
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CASE NO. 3:12-cv-1596(RNC)
RULING AND ORDER
Kirk McLeod, a former contractor at RBS Securities Inc.
("RBS"), brings this action under 42 U.S.C. § 1981 against RBS and
Matthew Iain Paine, his supervisor at RBS, alleging a hostile work
environment and unlawful retaliation.
summary judgment.
RBS and Paine have moved for
Plaintiff has failed to file a response.
For
the reasons that follow, the motion for summary judgment is
granted.
I. Background
When a plaintiff fails to respond to a defendant’s motion for
summary judgment, the facts set forth in the defendant’s Rule
56(a)(1) statement may be deemed admitted.
See D. Conn. Local Rule
56(a)(1) ("All material facts set forth in said statement and
supported by the evidence will be deemed admitted unless
controverted by the statement required to be filed and served by
the opposing party in accordance with Local Rule 56(a)(2)"); see
also Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996); Gittens v.
Garlocks Sealing Technologies, 19 F. Supp. 2d 104, 108-09 (W.D.N.Y.
1998).
Because plaintiff has failed to oppose the motion for
summary judgment, the Court regards as admitted the factual
assertions set forth in defendants’ Rule 56(a)(1) statement.
Those
factual assertions show the following.
Plaintiff, a black male, worked as a contractor at RBS where
he provided assistance to RBS's Change Management Group, part of
RBS's Global Banking & Markets Division, on information technology
projects.
Defs.' Rule 56(a)(1) Statement (ECF. No. 73-2) ¶ 1.
Plaintiff reported to Paine, the Managing Director of the Change
Management Group, as well as Franca Paravati, a Director in the
Change Management Group.
McLeod Tr. (ECF. No. 73-4) at 18:17—24;
Paine Decl. ¶ 4 (ECF. No. 73-16).
In mid-June 2011, plaintiff overheard Denise Meceli, another
contractor, telling two groups of co-workers (on two separate
occasions) about her vacation in Florida, where she heard Caucasian
children calling each other "my Nigger."
Statement (ECF. No. 73-2) ¶ 2—3.
Defs.' Rule 56(a)(1)
Plaintiff did not work directly
with Meceli but nonetheless was upset by her comments.
Id. ¶ 5—6.
Plaintiff wrote an email to Paine asking him to talk with Meceli
about "her choice of humor in the workplace."
Id. ¶ 6.
asked Meceli to apologize to plaintiff, which she did.
Paine
Id. ¶ 9.
Plaintiff then wrote Paine another email, thanking him for "taking
the lead" and noting that he was "one of the fairest and balanced
leaders [plaintiff] ha[d] ever had the opportunity to work for."
Id. ¶ 10.
Paine also informed Morgan Dell'Aquila, Human Resources
2
Business Partner for RBS, of Paine's original email expressing
concern about Meceli's comments.
Id. ¶ 11.
separately with both plaintiff and Meceli.
Dell'Aquila spoke
Id. ¶ 12.
In the
meeting with Dell'Acquila, plaintiff stated that he had discussed
the incident with Meceli, Meceli had apologized and he wanted
nothing further to happen.
Id. ¶ 13.
Plaintiff then emailed
Meceli and told her "I am totally fine with your apology . . . . I
regret this happening."
Id. ¶ 14.
In Meceli's meeting with
Dell'Acquila, Dell'Acquila reviewed RBS's policies regarding equal
employment opportunity and the Code of Conduct, and explained that
Meceli's comments were unacceptable.
Id. ¶ 15.
Neither plaintiff
nor any of his co-workers reported any further complaints about
Meceli.
Id. ¶ 16.
In April 2011, two months before the incident with Meceli,
Paine had emailed plaintiff concerning the project on which
plaintiff was then working, Project NEMO.
Id. ¶ 22, 24.
In his
email Paine wrote, "We see this as a short term project, per our
original agreement to move these on by the end of May."
Id. ¶ 24.
On June 21, 2011, plaintiff wrote to Paravati, his other
supervisor, stating, "If you go with QlikView my services will no
longer be needed, correct?
I know this has been the long term plan
for some time."
Plaintiff then asked Paine to write him
Id. ¶ 25.
a letter of recommendation, noting that he believed he had
"delivered everything" to Paine's satisfaction.
Id. ¶ 26.
After
considering RBS's budget, Paine terminated plaintiff's contractor
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job on August 11, 2011.
Id. ¶ 27.
Plaintiff alleges that before he was terminated he spoke with
others at RBS regarding potential job opportunities.
The record
with regard to these contacts reflects the following:
- Plaintiff contacted Managing Director Jeffrey Harwin and
contractor Gerard Naughton about developing a data management and
reporting system for anti-money laundering compliance.
Id. ¶ 30.
Plaintiff learned that Harwin would defer to IT as to whether
plaintiff would be involved in the project.
Id.
Plaintiff did not
reach out to Vance Wilbur, the Director of Markets and
International Banking-IT, or anyone else in IT about his interest
in the project, and IT decided to manage the project internally
rather than use a contractor.
Id. ¶ 31—32.
- Steve Wolfe, another contractor, approached plaintiff about
creating a database and reporting tool in response to the DoddFrank Act under the direction of Craig Helgans, a Director in the
Change Management Group.
Id. ¶ 33.
Plaintiff performed a
demonstration of a project management tool for Helgans but Helgans
did not understand plaintiff to be proposing that Helgans hire him.
Id.
Nor did Helgans end up hiring him, as tools for use with
projects related to the Dodd-Frank Act were already being developed
under the supervision of Helgans' colleagues within Compliance.
Id. at 33.
- Plaintiff met with Ron Cabral, a Director of Markets and
International Banking regarding a project.
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Id. ¶ 35.
Like the
others, Cabral did not hire plaintiff but instead went with two
other outside candidates and an internal IT resource to work on the
project.
Id. ¶ 36.
- Plaintiff reached out to Margaret Podniesinski, a Director
of Markets and International Banking, regarding potential job
opportunities.
Id. ¶ 38.
Podniesinski did not hire plaintiff, nor
does she have any recollection of meeting with him.
Id. ¶ 39.
Finally, plaintiff claims that after his termination at RBS, a
recruiter from an outside agency contacted him about a position at
RBS posted on Dice.com and he responded by submitting his resume.
Id. ¶ 40.
Plaintiff alleges that Bharat Kumar Chelluboina, Vice
President of Risk Technology, received his resume and that someone
(possibly Paine) told Chellubonia not to select him.
McLeod Tr. (ECF. No. 73-4) at 232:21-234:25.
Id. ¶ 42;
Plaintiff does not
recall "the gist of" the position he was seeking and neither heard
nor saw any communications by Paine discouraging others from hiring
him.
Id. ¶ 42.
None of these individuals - Wilbur, Helgans, Cabral,
Podniesinski and Chellubonia - were informed of plaintiff’s
complaint to Paine regarding Meceli's comments.
Id. ¶ 43.
II. Standard of Review
Summary judgment may be granted when there is no "genuine
issue as to any material fact" and, based on the undisputed facts,
the movant is "entitled to judgment as a matter of law."
Civ. P. 56(c).
Fed. R.
See D'Amico v. City of New York, 132 F.3d 145, 149
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(2d Cir. 1998).
A genuine issue of fact exists "if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party."
248 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
In assessing the evidence, the court must review the
record as a whole, credit all evidence favoring the nonmovant, give
the nonmovant the benefit of all reasonable inferences and
disregard evidence favorable to the movant that a jury would not
have to believe.
Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 150–51 (2000).
Conclusory allegations, conjecture, and
speculation are insufficient to create a genuine issue of fact for
trial.
Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 99 (2d Cir.
2003).
III. Discussion
A. Hostile Work Environment
1.
RBS
Plaintiff claims that Meceli's comments created a hostile work
environment in violation of his rights under § 1981.
To prevail on
this claim with regard to RBS, he must demonstrate: "'(1) that
[his] workplace was permeated with discriminatory intimidation that
was sufficiently severe or pervasive to alter the conditions of
[his] work environment, and (2) that a specific basis exists for
imputing the conduct that created the hostile environment to the
employer.'"
Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715
(2d Cir. 1996) (quoting Murray v. N.Y. Univ. Coll. of Dentistry, 57
F.3d 243, 249 (2d Cir. 1995)).
The evidence in the record would
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not permit a jury to make either finding.
There is no threshold number of harassing incidents above or
below which a claim can or cannot be established as a matter of
law.
Rather, the determination of whether a work environment is
hostile must take into account "the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee's work performance."
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
"For racist
comments, slurs, and jokes to constitute a hostile work
environment, there must be 'more than a few isolated incidents of
racial enmity.'"
Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d
Cir. 1997) (quoting
Snell v. Suffolk County, 782 F.2d 1094, 1103
(2d Cir. 1986)).
The parties do not dispute that plaintiff overheard Meceli
comment to different groups of co-workers about Caucasian children
in Florida calling each other "my Nigger."
Statement (ECF. No. 73-2) ¶ 2—4.
Defs.' Rule 56(a)(1)
Her comments were unwelcome to
him, and he made this known by emailing Paine, his supervisor, and
requesting that Paine speak with Meceli.
Meceli, who then apologized to plaintiff.
Id. ¶ 6.
Paine spoke to
Id. ¶ 8—9.
Paine also
contacted Dell'Acquila of Human Resources who spoke to both Meceli
and plaintiff separately.
Id. ¶ 11-12.
Plaintiff then emailed
Meceli indicating that he was "totally fine with [her] apology."
Id. ¶ 14.
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That Meceli's comments were not directed at plaintiff does not
mean the comments could not contribute to a hostile work
environment.
Schwapp, 118 F.3d at 110.
But plaintiff has not
presented evidence that Meceli's comments amount to more than
isolated incidents.
See Snell, 782 F.2d at 1103.
With the
exception of Meceli's two comments, there is no evidence of
racially derogatory remarks in the workplace.
Plaintiff admits
that he never heard anyone else use a racial epithet at RBS or any
other statement that he found offensive.
Statement (ECF. No. 73-2) ¶ 17.
Defs.' Rule 56(a)(1)
On this record, Meceli’s
offensive comments are insufficient to support a claim.
See Little
v. N.E. Utilities Serv. Co., CIV.A.3:05CV00806 AV, 2007 WL 781450,
at *9 (D. Conn. Mar. 8, 2007) aff'd, 299 F. App'x 50 (2d Cir. 2008)
(isolated incident of defendant referring to customer as a "black
bitch" does not constitute hostile work environment); Robertson v.
Sikorsky Aircraft Corp., 258 F. Supp. 2d 33, 42—43 (D. Conn. 2003)
(one racially derogatory comment does not arise to "hostile work
environment").
Even if Meceli's comments could reasonably be viewed as
creating a hostile work environment, there is no basis for imputing
liability to RBS.
An employer is liable for a hostile work
environment created by a co-worker only "'if the employer knows
about (or reasonably should know about) that harassment but fails
to take appropriately remedial action.'"
Whidbee v. Garzarelli
Food Specialties, Inc., 223 F.3d 62, 72 (2d Cir. 2000) (quoting
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Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759 (1998)); see
also Torres v. Pisano, 116 F.3d 625, 633—34 n.7 (2d Cir. 1997)
(Title VII (and § 1981) require an employer to take prompt and
adequate measures to address the harassment that has occurred but
do not require that an employer "fire all 'Archie Bunkers' in its
employ" (quoting Andrews v. City of Philadelphia, 895 F.2d 1469,
1486 (3d Cir. 1990)).
The record establishes that when RBS became aware of Meceli’s
comments, it promptly took effective remedial action.
Both Paine
and Dell'Acquila spoke to or met with Meceli almost immediately
after McLeod emailed about Meceli's comments.
Statement (ECF. No. 73-2) ¶ 8—12.
Defs.' Rule 56(a)(1)
Dell'Acquila reviewed with
Meceli RBS's policies regarding equal employment opportunity, as
well as the Code of Conduct, and explained that Meceli's comments
were unacceptable.
Id. ¶ 15.
Neither plaintiff nor any of his co-
workers reported any other incidents involving Meceli.
Id. ¶ 16;
cf. Whidbee, 223 F.3d at 72 ("[W]e have held that if harassment
continues after complaints are made, reasonable jurors may disagree
about whether an employer's response was adequate.").
2.
Paine
With regard to Paine, plaintiff cannot prevail unless he
demonstrates an “affirmative link” that “causally connect[s]” Paine
to the “discriminatory action.”
Whidbee, 223 F.3d at 75.
This
requires proof that Paine was personally involved in Maceli’s
offensive comments or grossly negligent in supervising Meceli.
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See
Patterson v. County of Oneida, 375 F.3d 206, 229 (2d Cir. 2004)
("Personal involvement . . . includes not only direct participation
in the alleged violation but also gross negligence in the
supervision of subordinates who committed the wrongful acts and
failure to take action upon receiving information that
constitutional violations are occurring.").
in the record.
There is no such proof
To the contrary, plaintiff admits that Paine always
spoke to him in a respectful manner and never made a discriminatory
remark.
Defs.' Rule 56(a)(1) Statement (ECF. No. 73-2) ¶ 18.
And
it is undisputed that Paine acted swiftly to condemn Meceli's
comments, first by asking Meceli to apologize and then by informing
Human Resources.
Id. ¶¶ 9, 11.
B. Retaliation
Plaintiff claims that Paine and RBS retaliated against him for
complaining about Meceli’s comments by blocking him from obtaining
other potential opportunities at RBS.1
1
Courts evaluate § 1981
McLeod's complaint also alleges that RBS and Paine
retaliated against him by "terminating Plaintiff's employment as
a result of his protected complaints." Compl. (ECF. No. 1) ¶ 34.
McLeod has, in effect, abandoned his retaliation-by-termination
claim. At his deposition, McLeod testified that the only way
Paine retaliated against him was by blocking him from securing
other potential opportunities. McLeod Tr. (ECF. No. 73-4) at
249:16-250:4. In addition, McLeod does not dispute that he was
hired as a contractor, his employment was understood to be for a
short term, and that once this time had lapsed, he was terminated
pursuant to the express terms of his written employment
agreement. See Paine Decl. (ECF. No. 73-16) ¶¶ 2, 8. McLeod
presents no evidence that Paine terminated him because he made a
complaint against Meceli.
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retaliation claims under a burden-shifting analysis.2
The
plaintiff must first establish a prima facie case of retaliation by
showing that (1) he engaged in protected activity under § 1981; (2)
the defendants were aware of this activity; (3) they took adverse
action against him; and (4) a causal connection exists between the
protected activity and the adverse action.
Fincher v. Depository
Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010).
If that
showing is made, the burden shifts to the defendant to offer a
legitimate, nondiscriminatory explanation for the adverse action.
Id.
The final burden belongs to the plaintiff, who must produce
evidence sufficient to support a reasonable inference that the
defendant’s explanation is a mere pretext for retaliation.
Id.
Defendants contend that plaintiff has failed to offer
admissible evidence to support a prima facie case.
I agree.
At
his deposition, plaintiff discussed the basis for his retaliation
claim.
He testified that Naughton told him that Paine “sabotaged”
the anti-money laundering compliance project as well as plaintiff's
opportunity to work on the project.
181-87.
McLeod Tr. (ECF No. 73-4) at
He testified that Wolfe, another contractor, told him that
Paine talked to Helgans about the Dodd-Frank position and that
Paine said "no, [McLeod] won't be working with them."
23.
Id. at 221-
He suggested that Paine may have interfered with his ability
2
Employment discrimination claims brought under § 1981 are
analyzed under the same burden-shifting framework used under
Title VII. See Patterson, 375 F.3d at 225.
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to obtain the position under Cabral.
Id. at 231.
He noted that
Ferris, a colleague, spoke to Podniesinski and, according to
Ferris, Podniesinski said that Franca "said good things and that
she has to weigh them against [the bad things that Paine] said."
Id. at 223—26.
Finally, he testified that he applied online at
Dice.com for the "exact same group that he worked in, in the exact
same department, doing the exact same duties."
Id. at 210—15.
But
he does not know who posted the job and whether Paine had any
involvement.
Id.
Plaintiff's reliance on hearsay is insufficient to make out a
prima facie case.
See Burke v. Evans, 248 F. App'x 206, 208 (2d
Cir. 2007) (affirming grant of summary judgment when "plaintiff did
not produce any evidence beyond vague recollections of
conversations with co-workers, anecdotes based on hearsay, and
other unsupported speculation to support his claim that his job
with the Bureau was terminated based on national origin, religion,
or sex"); Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d
155, 160 (2d Cir. 1999) (same when plaintiff relied on hearsay
statement that he had been told by a prospective employer that he
was not hired because of the lack of a positive reference).
As
defendants point out, a court should consider only admissible
evidence in ruling on a motion for summary judgment.
O'Reilly v.
Connecticut Light & Power Co., 3:06-CV-2008(RNC), 2009 WL 902389,
at *1 n.1 (D. Conn. Apr. 2, 2009) aff'd, 375 F. App'x 44 (2d Cir.
2010).
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Even if plaintiff could make out a prima facie case,
defendants have provided legitimate, nonretaliatory reasons for
choosing others to fill the positions he cites and he has not
contested their proffered reasons.
Based on the summary judgment
record, RBS hired someone internally, rather than an outside
contractor, to work on both the anti-money laundering compliance
project, Defs.' Rule 56(a)(1) Statement (ECF. No. 73-2) ¶ 32, and
the opportunity under Helgans, Helgans Decl. (ECF. No. 73-25) ¶ 4.
Cabral moved forward with two candidates he believed were more
qualified than plaintiff.
Dell'Aquila Decl. (ECF. No. 73-18) ¶ 11.
And Podniesinski, who has no recollection of meeting with
plaintiff, has reviewed his resume and determined that he did not
have the experience necessary to assist her team at the time.
Podniesinski Decl. (ECF. No. 73-23) ¶¶ 2, 6.
Plaintiff offers no
admissible evidence that would permit a jury to view these
explanations as pretextual.
See Aspilaire v. Wyeth Pharmaceutical,
Inc., 612 F. Supp. 2d 289, 311 (S.D.N.Y. 2009) (granting summary
judgment to employer on § 1981 retaliation claim when the
decisionmaker "believed that another applicant was more qualified
than plaintiff, and plaintiff has failed to set forth any evidence
from which to infer that this reason was a pretext for
discrimination").
At the final stage of the burden-shifting analysis, it is
plaintiff’s burden to offer evidence that would permit a jury to
reasonably find that Paine or others at RBS undertook to deny him
13
job opportunities because of his complaint about Meceli’s comments.
He has not done so.
IV. Conclusion
Accordingly, the motion for summary judgment is hereby
granted.
The Clerk may enter judgment and close the case.
So ordered this 30th day of September 2015.
/s/ RNC
Robert N. Chatigny
United States District Judge
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