Raia v. Illinois Tool Works Inc. et al

Filing 88

FINDINGS OF FACT AND CONCLUSIONS OF LAW. The attached constitutes the Court's Findings of Fact and Conclusions of Law. For the reasons indicated, judgment is awarded to defendant and the Clerk of the Court is directed to enter judgment in its favor. Ordered by Senior Judge Denis R. Hurley on 8/5/2011. (Monaco, Laura)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ROBERT RAIA,
Plaintiff,

MEMORANDUM AND DECISION
CV-04-3535(DRH)

-againstILLINOIS TOOL WORKS, INC.,
D/B/A HOBART CORPORATION,
Defendant.
------------------------------X
A P P E A R A N C E S:
For Plaintiff:
Frank & Associates, P.C.
500 Bi-County Blvd. – Suite 112N
Farmingdale, New York 11735
By: Neil M. Frank, Esq.
Robert Jacovetti, Esq.
For Defendant:
Bressler Amery & Ross, P.C.
325 Columbia Tpke.
Florham Park, New Jersey 07962
By: Jed Marcus, Esq.
HURLEY, Senior District Judge
Plaintiff Robert Raia ("plaintiff" or "Raia") commenced
suit against his former employer, Illinois Tool Works, Inc.,
d/b/a Hobart Corporation ("defendant" or "Hobart"), under Title
VII of the Civil Rights Act, 42 U.S.C. Section 2000e, and the New
York State Human Rights Law ("NYSHRL"), N.Y. Executive Law
Section 290 et seq., claiming that he was retaliated against for
opposing alleged discriminatory actions taken by defendant
against a former co-worker of plaintiff's.
The case was tried non-jury before me over the course
of six days with the testimony being completed on August 19,

2009.

At the close of plaintiff's case-in-chief, and again at

the close of all the evidence, defendant moved to dismiss
plaintiff's amended complaint pursuant to Federal Rule of Civil
Procedure 52(c) ("Rule 52(c)").

The Court reserved decision on

those applications, ordering the parties to file proposed
findings of fact and conclusions of law which was done via their
respective submissions in October of 2009.
The purpose of this decision is to provide the Court's
findings of fact and conclusions of law pursuant to Rule 52(c).1
Before doing so, however, a brief overview of the applicable law
shall be provided.
LAW PERTAINING TO CLAIMS OF
RETALIATION IN VIOLATION OF
OF THE CIVIL RIGHTS ACT AND
NEW YORK STATE HUMAN RIGHTS

UNLAWFUL
TITLE VII
THE
LAW

Title VII provides that "[i]t shall be an unlawful
employment practice for an employer to discriminate against any
of his employees . . . because he has opposed any practice made
an unlawful employment practice by this subchapter, or because he
has made a charge, testified, assisted or participated in any
manner in an investigation, proceeding, or hearing under this

1

Plaintiff also commenced an action against defendant based
on the same underlying facts as the present action alleging
constructive discharge under Civil Action No. 06-4582. Defendant
was granted summary judgment as to that claim by decision entered
on December 21, 2007.

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subchapter."

42 U.S.C. § 2000e-3(a). The New York State Human

Rights Law also prohibits retaliation for opposition to
discriminatory practices.

N.Y. Exec. Law § 290 et seq.

The

standards for liability under the NYSHRL are essentially the same
as those under Title VII.

See Ferraro v. Kellwood Co., 440 F.3d

96, 99 (2d Cir. 2006).
Typically in a non-jury Title VII employment
discrimination case predicated solely on circumstantial evidence,
the Court would employ the burden shifting analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S.
792, 802-04 (1973).

The purpose of the McDonnell Douglas

framework is to require the employer in the absence of direct
evidence of discrimination to join the fray by proffering nondiscriminatory reasons for its actions if the employee first
makes a prima facie showing of entitlement to relief.

Texas

Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56 (1981).
Here, the defendant employer came forward at trial and explained
its actions with respect to plaintiff's contentions, not only
through cross-examination but also by calling to the stand a
number of the individuals referenced in plaintiff's testimony.
As a result, the Court will bypass the question of whether
plaintiff established a prima facie case, and proceed directly to
the ultimate issue, viz., whether he has proven the elements of
his retaliation claim by a preponderance of the credible

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evidence.

To do so, "plaintiff must show that: (1) he engaged in

protected activity; (2) defendant was aware of that activity; (3)
he suffered an adverse employment action; and (4) there was a
causal connection between the protected activity and the adverse
action."

(Pl.'s Post Trial Mem. and Proposed Conclusions of Law

at 2 (citations deleted).)
An "adverse employment action" for purposes of the
third element "is not limited to discriminatory actions that
affect the terms and conditions of employment."

Thompson v. N.

Am. Stainless, L.P., ___ U.S. ___, 131 S. Ct. 863, 868
(2011)(internal quotation marks and citation deleted).

Rather,

Title VII's antiretaliation provision prohibits any employer
action that "'well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.'" Kaytor v.
Elec. Boat Corp., 609 F.3d 537, 555 (2d Cir. 2010) (quoting
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126
S.Ct. 1405 (2006)).

And finally as to the applicable law, a

failure to prove any one or more of the four elements is fatal to
plaintiff's claim.
PARTIES' POSITIONS
A.

Plaintiff's Position
Plaintiff contends that "[d]efendant retaliated against

him for opposing alleged discriminatory actions taken by Hobart
against its former employee Anthony Garnier" ("Garnier"), a co-

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worker of plaintiff of Haitian descent.
of Fact at 2.)

(Pl.'s Proposed Findings

Such retaliation, plaintiff urges, took many

forms, including (1) receiving negative performance reviews and
unwarranted reprimands; (2) being given a personal development
program ("PDP") on January 5, 2002 under which, absent
improvement, he could have been discharged; (3) being the subject
of a not-so-veiled threat of grievous bodily harm uttered by Glen
Smyth ("Smyth"), the service advisor at defendant's Commack
branch where plaintiff worked, and by Paul Todoro ("Todoro"),
plaintiff's immediate supervisor at that location, immediately
after plaintiff was given the PDP on January 5, 2002; (4)
defendant failing to provide plaintiff with a performance review
or a wage increase for two years; (5) defendant's failure to
promptly repair a broken lock on the van door of plaintiff's
service van; (6) defendant continuously refusing to provide
plaintiff with a new ladder beginning in April 2003 which
ultimately led to plaintiff being injured on December 12, 2003,
while performing a service call at the Macaroni Grill, and (5)
trashing his service van while plaintiff was on a medical leave
of absence.
Plaintiff maintains that the subject acts of
retaliation were primarily visited upon him by his immediate
supervisor, Todoro.

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B. Defendant's Position
Defendant maintains that plaintiff has failed to
establish a prima facie case, no less to discharge his ultimate
burden of proving his retaliation claim against Hobart by a fair
preponderance of the credible evidence in that, inter alia, (1)
"until April 2004, he did not properly put [defendant] on notice
that he was engaging in a protected activity," (2) "he did not
show that he suffered an adverse employment action," and (3) "he
did not establish a link between his complaints and the
legitimate actions taken by [defendant]."

(See Def.'s Proposed

Findings of Fact and Conclusions of Law at 31.)
FINDINGS OF FACT
Having set forth the elements that plaintiff must prove
to prevail on his retaliation claim and the positions of the
parties, the next subject to be addressed will be the Court's
factual findings.

By way of a preliminary comment, those

findings will focus on the third and fourth elements of
plaintiff's cause of action, those being whether plaintiff has
established that he suffered one or more adverse employment
actions and the causal connection between that action or actions
and a protected activity.

As to those elements, markedly

divergent proof has been presented by the respective parties as
to what transpired, thus requiring the Court to make a series of
pivotal credibility determinations.

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Having done so, I find that

some of the material claims made by plaintiff - such as the
purported threat made by Smyth and Todoro on January 5, 2002 are not credible.

Certain other of his complaints - such as the

claimed condition of his service van upon his return from medical
leave - while perhaps troubling to plaintiff, do not meet the
objective standard necessary to equate the incidents with
actionable retaliation by Hobart.

These deficiencies in

plaintiff's proof, particularly with respect to his credibility,
taint the remainder of his proof to the extent the Court
concludes, as explained infra, that he has not, simply put,
proven his case.
The Court's Findings of Fact are as follows:
The Parties
Defendant sells and services commercial food equipment
used in such facilities as schools, supermarkets and grocery
stores (Tr. 472:21-473:9), with its corporate headquarters
located in Troy, Ohio. (Tr. 481:21-22.)

It employs service

technicians to repair Hobart equipment, usually at customer's
premises.

(Tr. 473:12-20.)
Plaintiff began working for Hobart at its regional

office in Commack, New York in November 1989 (Tr. 75:18-19), and
continued in their employ until he resigned in April, 2005 after
accepting a job at Cleanse Tech apparently a few days before.
(Tr. 333:6-334:5.)

From 1995 to 2000, plaintiff reported to Jim

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Psarudakis ("Psarudakis"), who was then the branch manager.
Performance Evaluations After Todoro
Became Plaintiff's Supervisor; Plaintiff
Being Placed on PDP, and the Purported
January 2002 Threat by Todoro and Smyth
As of May 1, 2000 Todoro replaced Psarudakis as branch
manager of the Commack office.
Todoro's first performance evaluation of plaintiff is
dated November 21, 2000.

(Def.'s Ex. F.)

Therein, plaintiff's

MAJOR STRENGTHS are reported to be
Bob has been a dependable technician. In
the first half of 2000, Bob helped out when
man power (sic) was very low. When present
health problems are resolved, (Bob expects to
be back to normal the first of the year), I'm
sure Bob will continue to be the help he has
been in the past. I sincerely Thank You Bob,
for all the good that you do, It is much
appreciated.
(Id.)
Plaintiff's DEVELOPMENT NEEDS were identified thusly:
Bob needs to improve the execution of his
technical skills. I do believe that this
will positively effect many aspects of his
job. Most notably, calls per day, call back
ratio, and first call completion. I do
believe that Bob's potential is above his
present performance, and with focused intent,
he can achieve that potential.
I also feel that if Bob would take the high
road when it comes to his relationship with
dispatch, he would see improved results in
that area.
(Id.)

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A juxtapositioning of Todoro's first performance
evaluation of plaintiff done on November 21, 2000 with
Psarudakis's last evaluation (Pl.'s Ex. 39) indicates that Todoro
viewed plaintiff's performance less favorably than his
predecessor.

However, the source of that disparity is

independent of plaintiff engaging in a protected activity given
that his complaints about the perceived improper treatment of
Granier did not occur until May of 2001, i.e. six months later.
(See Pl.'s Proposed Findings of Fact, under the caption
"Plaintiff Engaged In Protected Activity" at 3-5.)2

Which is to

say, plaintiff's statement that "this criticism [contained in the
November 21, 2001 performance evaluation] was in retaliation for
Plaintiff's support of Granier" is erroneous.

(See Pl.'s

Proposed Findings of Fact at 6.)
Plaintiff also places considerable stock in pursuing
his retaliation claim upon a document entitled "EMPLOYEE RIGHT OF
REVIEW LETTER."

(Pl.'s Ex. 15.)

Via that letter, plaintiff was

placed on a "PERSONAL DEVELOPMENT PROGRAM" under which his
performance would be monitored every two weeks for a period of

2

Although plaintiff cites the May 2001 complaint to Todoro
as merely an "example" of the type of alleged discriminatory
action against Granier that he opposed, he mentions no earlier
episodes in his post-trial submissions and the Court is unaware
of any evidence of such complaints pre-dating May 2001. (See
Def.'s Ex. FF, Pl.'s Response to Def.'s First Set of
Interrogatories, at 9 in which plaintiff lists the first date of
him "object[ing] to racial harassment of Anthony Garnier" as of
"Spring 2001.")
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two months.

Absent improvement in the areas designated,

plaintiff faced the prospect of "disciplinary action up to and
including discharge."

(Id.)

Although the EMPLOYEE RIGHT TO REVIEW LETTER states
that a copy of plaintiff's "Performance Appraisal and Personal
Development Program" is attached thereto, Exhibit 15 is devoid of
attachments.

Plaintiff testified that Todoro gave him the PDP in

that condition.

(Tr. 366:18-367:4.)

Smyth who was also present

is reported to have said that plaintiff's "call per day" and
"callback per day" were "greatly below standards" for a "Tech
VI."

(Tr. 367:5-11.)

Todoro supposedly said nothing during the

meeting beyond directing plaintiff to sign the document.

That

direction was met by plaintiff's refusal to do so, coupled with
the comment that he "would like to contact [his] attorney before
[he] signed anything because this is [his] livelihood."

(Tr.

367:16-19.)
Todoro testified that the EMPLOYEE RIGHT TO REVIEW
LETTER was given to plaintiff with the referenced attachments.
(Tr. 505:3-7 (Def.'s J referred to in this transcript excerpt
corresponds to Pl.'s Ex. 15).)

Todoro also testified that he and

Smyth explained in detail to plaintiff why he was being placed on
PDP, with the goal of the process to assist him in addressing his
weaknesses.

(Tr. 720:25-722:22.)

Plaintiff was non-receptive,

and visibly upset by their presentation.

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(Id.)

The PDP meeting ended with plaintiff going "to
[his] truck" to make a "service call."

(Tr. at 179:22-24.)

"Glenn and Paul followed [him] out to the truck" (Tr. 180:1-2),
thereupon:
Glenn got to the right of me; he put his foot
on mine. Paul got the left of me. And Glenn
says, you know, you can hurt at this job.
You're dealing with electricity and you're
dealing with gears. Then Paul said to me you
never know where it is going to come or from
where it is going to come from.
(Tr. 180:7-12.)
In response plaintiff said "[n]othing" but felt
"devastated."

(Tr. 180:13-16.)

On cross-examination, plaintiff

elaborated concerning the impact of the threat, "I almost dropped
dead right there.
my mind.

I . . I . . I was . . literally going out of

My heart was beating."

(Tr. 285:17-19.)

When asked if

the confrontation was "something [he] would never forget," he
answered in the affirmative.

(Tr. 286:5-7.)

Todoro testified that neither he nor Smyth followed
plaintiff to his truck at the conclusion of the PDP meeting nor
threatened him.

(Tr. 506:5-20.)

The Court recognizes that outrageous comments,
including threats of physical harm sadly are not unknown in the
workplace.

However, I do not believe plaintiff's testimony

concerning the threat that was supposedly made by Todoro and

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Symth.

Firstly, I found Todoro to be a credible witness.3

Moreover, plaintiff's testimony that he would "never forget" the
threat is nigh impossible to square with the fact that he forgot
- assuming, arguendo, the incident occurred - to mention it in
his lengthy and detailed May 24, 2004 submission to the EEOC.
(Tr. 286:2-288:9; Pl.'s Ex. 5.)

Similarly, the threat incident

is not mentioned in Plaintiff's Response to Defendant's First Set
of Interrogatories (Def.'s Ex. FF) although Interrogatories No.
11 specifically asks plaintiff to "[i]dentify each occasion on
which plaintiff was allegedly subjected to a hostile work
environment and/or discrimination and/or harassment."

(Tr.

295:14-296:16.)
In sum, plaintiff has not established to my
satisfaction that the January 2002 threat incident occurred.
Having completed my factual findings concerning the
claimed January 5, 2002 threat leveled at plaintiff, attention
will now be refocused on the PDP.

What transpired after its

issuance lends scant support for plaintiff's retaliation claim
even if, arguendo, the only document he received was Exhibit 15
minus any attachments and whether, in fact, Todoro's and Smyth's
assessments of his performance on the job were well grounded or
otherwise.

Had the PDP been part of a process intended to punish

plaintiff for engaging in a protected activity, presumably it

3

Smyth did not testify at trial.
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would have been a gateway leading to his discharge.
not the case.

But such was

In fact, Todoro testified that plaintiff's post-

PDP performance improved "[a]cross the board . . . from the
previous report . . . to a level where it was an acceptable level
for what he had to do."

(Tr. 832:6-833:9.)

That improvement,

and plaintiff's removal from PDP, lasted "for the rest of the
time that he was with me," "up to his resignation in April of
2005."

(Tr. 833:10-15.)

Indeed, plaintiff's June 2002

"CONFIDENTIAL Performance Evaluation" reflects that marked
improvement, as well as Todoro's appreciation of efforts by
plaintiff underlying his progress.

(Def.'s Ex. H.)

Plaintiff

received a salary increase in June 2002 (Tr. 915:24-916:12), and
again in June 2004 (Tr. 918: 8-25).
In sum, and to partially reiterate as to the three
subjects comprising this segment of the Findings of Fact, viz.
plaintiff's performance evaluations under Todoro, the January 5,
2002 PDP issued to plaintiff, and the purported threat made by
Todoro and Smyth on that date:
1) Plaintiff has not established by a
preponderance of the credible evidence that his performance
evaluations under Todoro were adverse employment actions, or even
if, arguendo, they were, that either was of a retaliatory nature.
The first such evaluation predates plaintiff engaging in a
protected activity and thus could not be retaliatory, and the

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latter two evaluations are not out-of-sync with the first;
2) As to the PDP, that has the hallmarks of an
adverse employment action.

However, the positive events

following closely on the heels of its issuance are inconsistent
with the notion that its genesis, in whole or in part, is
traceable to plaintiff's defense of Granier; and
3) As to Todoro and Smyth supposedly threatening
plaintiff in January 2002, that surely - had it occurred - would
have been an adverse employment action.

But, as noted,

plaintiff's proof falls far short of establishing that it did
occur.
THE LADDER INCIDENT
Plaintiff testified that "in April of 2003, [he] asked
[Todoro] for a ladder."

(Tr. 137:13.)

Todoro is reported to

have replied "you're not getting one out of me."

(Tr. 137:15.)

That subject, according to plaintiff, resurfaced in December of
that year when he asked Todoro for a company purchase order to
buy a ladder.

(Tr. 138:16-19.)

was also summarily denied.

That request, plaintiff states,

(Tr. 138:21-24.)

Todoro's recollection of what transpired concerning the
ladder was different.

He testified that plaintiff never asked

for a ladder prior to December 2003 (Tr. 532:16-24), and that
when the subject was broached in December, he, Todoro, suggested
that plaintiff buy one at Home Depot and submit a voucher for

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reimbursement.

(Tr. 533:3-7.)

When plaintiff objected to laying

out the money in advance, Todoro told plaintiff "to go to the
front office for a P.O" and to obtain one from the hardware store
on Hobart's account.
not do.

(Id.)

That, Todoro believes, plaintiff did

(Tr. 533:8-14.)
Plaintiff's testimony about the so-called ladder

incident on direct was less than a model of clarity, particularly
with respect to his references to a purchase order.

Todoro's

testimony, on the other hand, was straightforward, succinct, and
made sense.

And as indicated earlier, I found Todoro to be a

believable witness which is a label that I have been unable to
attach to plaintiff as to much of his testimony.

In sum,

plaintiff has not proven that Hobart, acting through Todoro,
denied him access to a ladder in April and/or December of 2003.
THE TRASHED TRUCK
When plaintiff returned to work on December 6, 2004
from a medical leave of absence, he went to the company van he
used in performing his duties.

Upon opening a door to the van,

he observed that the interior of the vehicle was in disarray
having, according to him, salad dressing on the driver's wheel
and ketchup smeared on the windows and seats.

(Tr. 164:9-14.)

Plaintiff also explained that his personal tools were missing.
(Tr. 164:15-17.)

In an apparent non-sequitur, plaintiff

testified that Todoro assured him that he would not be

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responsible for any missing "Hobart . . . parts . . . and tools,"
to which he replied "I want it in writing."

(Tr. 164:19-165:20.)

Although plaintiff's direct testimony on the ownership
of the missing tools lacked clarity, he seemed to be insisting
that at least some of the missing tools were his personal
property which were never found.

(Tr. 167:21-23.)

Yet on cross-

examination he was asked
Q.

. . . and you said that your personal tools had
been taken?

A.

Yes.

Q.

In fact were any of your personal tools taken?

A.

Yes.

Q.

In fact didn't you tell me in your deposition that
none of your personal tools had been taken?

A.

I would have to look.

I don't recall.

(Tr. 281:3-10.)
At that point, plaintiff was directed to the following
excerpts from his deposition:
QUESTION: There were items missing?
ANSWER:

Yes.
. . .

QUESTION: Your personal items?
ANSWER:

No.

(Tr. 282:12-17.)

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But more important than the question of who owned the
missing tools (which bears primarily on plaintiff's credibility)
is the assumption implicitly harbored by plaintiff that defendant
necessarily caused the vehicle to be trashed and did so in
retaliation for his engaging in protected activity.

The

trasher's identity and affiliation, if any, is unknown and
unknowable from the evidence.

Was he a trespassing vandal or a

slovenly low-level Hobart employee acting on his own account?

In

other words, the mere fact that the truck did not meet
plaintiff's standards upon his return from medical leave does not
mean that the defendant was responsible.

Moreover, I note that

it is undisputed that plaintiff was given time to clean the
truck, and was never charged for any items that may have been
damaged or missing.
In sum, the incident has not been shown to be part of
the retaliatory conduct plaintiff seeks to attribute to
defendant.
THE BROKEN LOCK
Plaintiff testified that in "September 2002," upon
returning to his truck from a service call, he discovered that
the lock to the back section was broken.

(Tr. 111:1-13.)

He

then called the dispatcher and asked for permission to go "to a
locksmith," which permission was denied with the explanation
"there's too many calls out there.

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I can't have you go to a

locksmith."

(Tr. 111:17-112:15.)

about the lock."
"You ruined it.

(Tr. 113:4-5.)

A week later he "told [Todoro]
Todoro is reported to have said

You broke it; you live with it."

(Tr. 113:8-9.)

As a result, plaintiff reported that for the "next year and a
half," i.e., until the lock was fixed, he had to crawl in and out
of the truck to access his inventory.

(Tr. 152:7-9.)

remained inoperable until approximately May of 2004.

The lock
(Tr.

995:11-996:13.)
According to Todoro, the time frame was far shorter.
Firstly, Todoro explained that when a company car is damaged,
defendant's "fleet management company" handles the matter.
840:21-842:3.)

(Tr.

In this case, Todoro testified that the vehicle

was taken to Alpha Omega Auto Body Shop on April 7, 2004 for an
estimate.

(Tr. 842:1-24; see also Def.'s Ex. II.)

And that was

done, Todoro testified, "within several weeks, a week or two" of
the time plaintiff advised him of the damaged lock.
846:2.)

(Tr. 845:16-

Todoro then explained that the estimate was submitted to

the fleet manager who was thereafter responsible for making sure
that the repairs were made.

(Tr. 841:14-842:3.)

In sum, I think it is more probable based on the
evidence that the rear lock was out of commission from sometime
in March 2004 until May 2004 consistent with Todoro's testimony
rather than from September 2002 until May 2004 as plaintiff

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maintains.4
INVESTIGATION BY PHILLIPPI
On April 2, 2004 plaintiff called Vicki Phillippi
("Phillippi"), Hobart's Human Resources Director stationed in
Troy, Ohio.

(Tr. 149:4-19.)

He told her "about what happened to

Anthony Granier" and complained in broad-strokes about the
retaliation to which he, plaintiff, had been subjected for
endeavoring to come to Granier's aid.

(Tr. 151:4-5.)

Such

retaliation escalated to the point, according to Phillippi, that
plaintiff told her "that he feared for his life."

(Tr. 580:2-4.)

Phillippi further testified that plaintiff advised her
that "he had witnesses and he had everything written up and had
documentation about more specifics."

(Tr. 580:18-20.)

However,

plaintiff "did not want to divulge the witnesses or the other
information that he had" to her at that time.

(Tr. 581:4-5.)

Phillippi's testimony in that regard dovetails with information
elicited from plaintiff during cross-examination in which he
confirmed that he told Phillippi that he had "notes and what-not,
but . . . chose not to give them to her" and that those notes
included "the names of people who could corroborate [his
testimony regarding] harassment."

4

(Tr. 307:18-308:4.)

In any

The Court is aware that plaintiff after repeatedly
testifying that the lock was broken for a year and a half or from
September 2002 (Tr. 111:1; Tr. 152:7-13; Tr.996:17-18), later
testified that the correct date, as given at his deposition, was
September 2003, not 2004. (Tr. 1005:11-15.)
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event, Phillippi wrote a "follow up" letter dated April 12, 2004
to plaintiff referencing their "phone conversation of April 2,
2004."

(Pl.'s Ex. 22.)

Therein, she wrote:

In our conversation, you told me that you
felt that you were being unfairly treated by
managers at the Commack Branch. We will do a
thorough investigation of your claims in
accordance with our policies against
discrimination and harassment. As part of
that discussion, you mentioned to me that you
had witnesses to the situations you shared
with me as well as additional notes on other
situations you did not disclose.
Unfortunately, you refused to identify who
those witnesses are or to give me copies of
the notes you claim to have regarding other
situations. Under these circumstances, it is
extremely difficult to conduct a thorough
investigation or to corroborate your story
without witnesses or written documents. All
of your concerns are important to me and I
would like to ask you to reconsider sharing
the rest of your notes with me on other
situations as well as the names of witnesses
I can talk to for each situation so that I
may do a thorough investigation.
Also, you should know that under our
policies, you cannot and will not be
retaliated against because you brought these
complaints to our attention. Please let me
know if you feel that there have been any
acts of retaliation. You should bring these
complaints directly to my attention.
Please call me and let me know if you would
be willing to share this additional
information. I can be reached at 937-3322929 during the day. If it is not convenient
to speak during the day, I would be happy to
arrange a time that would be more convenient
for you.
Thank you for your assistance.

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(Id.)
The referenced corroborative information was never made
available to Phillippi.

Nonetheless, she traveled from Ohio to

the Commack branch office on "May 5th [2004] . . . specifically
to talk with [plaintiff and to] observe what the climate was
firsthand."
plaintiff.

(Tr. 585:13-23.)

On that date, she met with

During their meeting, she and plaintiff discussed

such subjects as the PDP, his performance on the job, the ladder
incident, as well as the broken lock which plaintiff said,
incidently, took "a month or a month and a half to get fixed."
(Tr. 585:24-587:8.)

Phillippi had already seen his next

"performance appraisal" which his supervisor was scheduled to
present to him in June.

That appraisal "indicat[ed] he was going

to get a raise and his performance were (sic) meeting standards."
(Tr. 589:1-2.)

Armed with that information, Phillippi "tr[ied]

to put his mind at ease [during their face-to-face meeting by
telling him that she] was sure that his manager would be talking
to him shortly and that perhaps he should wait to see how that
performance appraisal came out before he was concerned about how
his performance were being evaluated."

(Tr. 589:5-11.)

And as part of her investigation, she, before her trip
to Commack, inter alia, spoke to Todoro about the ladder incident
(Tr. 585:4-5), "check[ed into] the PDP," and advised Hobart's
"region director Don Stairs about her ongoing investigation."

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(Tr. 584:9-19.)
Phillippi concluded her investigation by
attributing plaintiff's complaints primarily to "a
miscommunication between the manager and Mr. Raia."
22.)

(Tr. 590:21-

She suggested that the three of them (i.e. Don Stairs,

Todoro and plaintiff) and herself "if [plaintiff] was comfortable
with that," get together to discuss plaintiff's concerns.
590:19-591:8.)

(Tr.

In response, plaintiff said "he might consider it

in the future, but not at that time."

(Tr. 591:8-9.)

I found Phillippi to be a credible witness and do not
accept plaintiff's argument that her investigation was
essentially a sham and further evidence of retaliation.

To the

contrary, the evidence suggests she performed appropriately,
particularly considering that her investigation was partially
hamstrung by plaintiff's inexplicable lack of cooperation.
2002 WARNINGS
Plaintiff claims that he was subject to retaliatory
reprimands.

In that regard, plaintiff on October 8, 2002, was

given a REPORT OF DISCIPLINARY ACTION ("the Report")

concerning

an incident said to have happened on August 29th at a Dunkin
Donuts in Oyster Bay, New York.

(Def.'s Ex. M.)

According to

the Report, plaintiff had been sent to that location to "work on
an M-802 Mixer."

(Id.)

The customer stated that plaintiff had

said "I don't fix anybody else's sh*T, I'm not doing [anybody]

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else's work."

(Id.)

At that point, plaintiff called defendant's

dispatcher in an agitated state, and the dispatcher suggested
that plaintiff leave Dunkin Donuts.

After he did so, the

customer asked that plaintiff be directed to return to complete
the service call.

That request was granted.

Upon his return,

plaintiff is reported to have said to the customer "are you happy
now you bastard, you had to call my office, now it's going to
cost you, you wanted me, now you got me."

(Id.)

After further

exchanges between plaintiff and the customer, someone contacted
the dispatcher, leading to another technician being sent to the
site to replace plaintiff.
Both Todoro and Stairs spoke to the customer, finding
his rendition of what had transpired credible.

The Report

further recites that plaintiff stated "that he did not say these
things, and that the customer was hostile to him."

(Id.)

The

Report concludes thusly: "the next time [plaintiff] receives a
complaint similar to this one . . . disciplinary action up to
including dismissal may be given."

Id.

On November 29, 2002 plaintiff was the subject of a
verbal reprimand at a meeting attended by himself, Todoro, and
Smyth.

The subject of the meeting was plaintiff's purported

improper replacement of two steam valves at St. Charles Hospital
in Port Jefferson.

The error necessitated Smyth going to the job

site and "put[ting] the valves in correctly."

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(Def.'s Ex. N.)

Labeling the subject task as a "very simple procedure," and thus
an unnecessary call back, Todoro said that plaintiff's
performance did "not come up to par with a level IV tech."

(Id.)

The warning concluded with the statement that the "situation will
be monitored and if need be further talks or actions will be
taken."

(Id.)
Both warnings essentially speak for themselves.

Whether, with respect to the Dunkin Donuts incident, the customer
was "hostile" to the plaintiff or vice versa, and as to the St.
Charles hospital episode, whether or not the task was a simple
procedure for a tech IV, are not the pivotal issues per se.5
Instead, the key question is whether the plaintiff has proven
either or both of the subject warnings to be retaliatory.

That

question calls for a negative answer given the evidence adduced
at trial.
CONCLUSION RE FINDINGS OF FACT
The foregoing constitutes the Court's Findings of Fact.
Consistent with what was indicated at the outset, I have
specifically discussed most, but not all of the plaintiff's
catalog of retaliation claims.

However, all of his claims have

been considered, both individually and inter se.

5

The situation would be otherwise if there was, contrary
to the fact, evidence that the accusations, or defendant's
response thereto, were trumped-up to punish plaintiff for
engaging in protected activities.
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At this point attention will be directed to the Court's
Conclusions of Law.
CONCLUSIONS OF LAW
As noted earlier, to establish a claim of
retaliation, the plaintiff must prove that: 1) he engaged in
protected activity; 2) defendant was aware of that activity; 3)
he suffered an adverse employment action; and 4) there was a
causal connection between the protected activity and the adverse
action.

Gordon v. New York City Bd. of Educ., 232 F.3d 111, 116

(2d Cir. 2000).
Plaintiff's failure to establish one or more of the
elements requires that judgment be entered for the defendant.
Here, Raia has not established by a fair preponderance of the
credible evidence the third and/or fourth elements of his
retaliation claims.6

Specifically,

1. The performance evaluations made by Todoro have
not been shown to constitute adverse employment actions or,
arguendo, even if the situation were otherwise, to be causally
related to plaintiff's comments about Granier.

The November

2000 evaluation, although claimed by plaintiff to constitute an

6

Parenthetically, defendant stipulated during its opening
statement that plaintiff engaged in a protected activity. (Tr.
67:6-8.) As to the second element of the cause of action,
defendant contends that it was unaware until April 2004 that
plaintiff's objections to Hobart's treatment of Granier were
based on what he perceived to be discrimination as distinct from
nonactionable rudeness in the workplace.
-25-

act of retaliation, clearly is not given that it predates the
first protected activity comment cited by plaintiff.

Moreover,

the two Todoro evaluations which post-date plaintiff engaging in
a protected activity are generally in sync with the November 2000
evaluation, strongly suggesting that they too are untainted by
discriminatory animus.

See generally, Billet v. CIGNA Corp., 940

F.2d 812, 825 (3d Cir. 1991)("The fact that an employee disagrees
with an employer's evaluation of him does not prove pretext"),
overruled in part on other grounds by St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502 (1993).
2. Plaintiff being placed on PDP in January 2002
for the first and only time certainly would qualify as an adverse
employment action if he demonstrated that (a) "similarly
situated" Hobart employees were dealt with less harshly, Mandell
v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003), and (b)
his testimony as to what transpired during the PDP meeting and
immediate thereafter was found to be credible.

But his efforts

to show disparate treatment fell short of the mark, as did his
testimony about what happened on January 5, 2002.

The Court's

conclusion as to credibility is based not only of the fact that I
believed Todoro's and Stair's testimony, including their
explanation as to why plaintiff was placed on PDP, but also
because plaintiff's testimony does not ring true.

By way of one

example, plaintiff categorized the threat incident as

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unforgettable, but he forgot to mention it in his detailed letter
to the EEOC and, more importantly, in his answer to defendant's
interrogatories.
3.

With respect to the messy truck incident,

there is insufficient evidence linking defendant to the claimed
substandard condition of the company-owned van upon plaintiff's
return from medical leave.

Whether Hobart, as distinct from,

e.g., a disgruntled fellow employee acting pursuant to his own
agenda or a interloping vandal, caused the mess is problematic.
Simply mentioning that defendant had the keys to the truck,
standing alone, does not cure that deficiency.

Moreover, it is

undisputed that Todoro provided plaintiff with adequate time to
clean the truck and assured him that under no circumstances would
he be held responsible for any equipment missing from the
vehicle.

Such accommodations run counter to the notion that this

incident constituted retaliation by defendant.

Which is to say,

plaintiff has not established the third or fourth element vis-avis the messy truck.
4.

With respect to the broken lock to plaintiff's

assigned truck, the credible evidence indicates the necessary
repair was probably done closer to several weeks after the damage
occurred, rather than a year and a half later as plaintiff
testified.

As to this incident, plaintiff again has failed to

establish either the third or fourth element of his retaliation

-27-

claim.
5.

As to Hobart's investigation of plaintiff's

complaints following his phone call to Phillippi in April of
2004, the credible evidence fails to support his claim that
Phillippi's efforts constituted retaliation, or were a ruse to
mask retaliation by other wrongdoers acting on defendant's
behalf.

Once again, the third and fourth elements remain

unproven.
6.

The 2002 warnings and/or admonitions given to

plaintiff have not been shown to be retaliatory in nature.

No

effort was made at trial by plaintiff - who, of course, has the
burden of proof - to corroborate his less-than-vigorous denials
of the underlying events at Dunkin Donuts and at St. Charles
Hospital said by defendant to have triggered the warnings.

That

defendant responded to, and evaluated the customer's complaints,
followed by what the company concluded was an appropriate warning
to Raia may not, on the evidence at hand, be equated with an
adverse employment action.

An employer has a right to monitor,

and correct when necessary, its employees' shortcomings in
performing their jobs.

See generally Dotson v. City of Syracuse,

No. 5:04-CV-1388, 2009 WL 2176127, at *18 (N.D.N.Y. July 21,
2009)("The law in this circuit, post-White, is clear that an
employer's excessive scrutiny of an employee, without more, fails
to satisfy the requirements for an adverse employment action.

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Moreover, reprimands that do not lead to materially adverse
employment consequences are generally not considered actionable
forms of retaliation.")(internal citation omitted); Constance v.
Pepsi Bottling Co. of N.Y., No. 03-CV-5009, 2007 WL 2460688, at
*36 n.15 (E.D.N.Y. Aug. 24, 2007)(expressing doubt, in light of
Burlington Northern standard, that "surveillance on the job"
would constitute an adverse employment action); Meder v. City of
New York, No. 05-CV-919, 2007 WL 1231626, at *4 (E.D.N.Y. Apr.
27, 2007)(finding "excessive scrutiny" does not constitute
adverse employment action); Scott v. Cellco P'ship, No. Civ.
7245, 2007 WL 1051687, at *2 (S.D.N.Y. Apr. 3, 2007)("As to
plaintiff's assertions of 'defendant's general reprimands about
plaintiff's lateness and other accusations, and alleged excessive
scrutiny of plaintiff' . . . the Court concludes that those
allegations, if true,7 do not constitute adverse employment
actions as now defined in Burlington").
6. In sum, plaintiff has not proven by a
preponderance of the credible evidence that he sustained one or
more adverse employment actions at the hands of Hobart, or that,
arguendo, even if he did, that those actions were attributable in
whole or in part, to Hobart retaliating against him for engaging

7

Here, the record is devoid of credible evidence
suggesting that the Dunkin Donuts and St. Charles' complaints
were fabrications or that Hobart's responses were inappropriate
as discriminatory or otherwise.
-29-

in a protected activity.
Defendant moved for judgment as a matter of law
pursuant to Rule 58(c) at the conclusion of plaintiff's case-inchief, and again at the conclusion of all the evidence.

Given

that plaintiff has failed to meet his ultimate burden of
establishing that he was the victim of discrimination under
Federal or State law, defendant's Rule 58(c) motion is rendered
academic and, accordingly, will not be further discussed.
CONCLUSION
The above constitutes the Court's Findings of Fact and
Conclusions of Law.

For the reasons indicated, judgment is

awarded to defendant and the Clerk of the Court is directed to
enter judgment in its favor.
SO ORDERED.
Dated: August 5, 2011
Central Islip, New York
/s/
DENIS R. HURLEY, U.S.D.J.

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