Marrero v. R-Way Moving & Storage, LTD

Filing 34

ORDER granting in part and denying in part 28 Defendant R-Way's Motion for Summary Judgment. Ordered by Judge I. Leo Glasser on 8/16/2012. (Green, Dana)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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FERNANDO MARRERO,
Plaintiff,

Memorandum and Order
10 Civ. 5838

- against R-WAY MOVING & STORAGE, LTD.,
Defendant.
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GLASSER, United States District Judge:
Plaintiff Fernando Marrero (“Marrero” or “plaintiff”) brought this action against
his former employer, R-Way Moving & Storage, Ltd. (“R-Way” or “defendant”), alleging
race-based discrimination, a hostile work environment, and retaliation in violation of
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. and the
New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296 et seq.
(McKinney 2010). Before the Court is defendant’s motion for summary judgment,
pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth
below, defendant’s motion is granted in part and denied in part.
BACKGROUND
The following facts are undisputed, unless otherwise noted. R-Way is a moving
company based in Maspeth, New York, owned by Joseph and Christopher Rooney.
Defendant’s Local Rule 56.1 Statement of Undisputed Material Facts (“Def.’s 56.1”) ¶¶ 12. During the relevant time period, R-Way had four full-time employees: Joseph
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Rooney, Christopher Rooney, and their wives. Id. ¶ 17. R-Way also employed a parttime bookkeeper, Ed Vecchio. Id. ¶ 16. The parties dispute the number of movers
employed, but they agree that these movers are divided into full-time or “regular”
movers, 1 who were contacted every time there was a moving job, id. ¶¶ 3-4, and
numerous part-time workers who are contacted when the regular workers are
unavailable or when a moving job requires additional workers, id. ¶ 5; Plaintiff’s Local
Rule 56.1 Statement of Undisputed Material Facts (“Pl.’s 56.1”) ¶ 10.
R-Way employed plaintiff as a part time worker from July 6, 2006 to April 15,
2010. Def.’s 56.1 ¶ 6; Compl. ¶ 2. Plaintiff alleges he initially worked as a “shaper,”
meaning he called R-Way each morning and was given assignments based on R-Way’s
needs. Compl. ¶ 14. In the spring of 2007, plaintiff alleges he was promoted to
“elevator,” meaning that he was paid more, was given better assignments, and worked
more regularly than a “shaper.” Compl. ¶ 15. At approximately the same time, plaintiff
alleges he began to be subjected to harassment based on his race and skin color.
Plaintiff self-identifies as non-White Hispanic. Pl.’s 56.1 ¶¶ 1-2; Compl. ¶ 2.
Plaintiff alleges he was subjected to daily racial harassment at R-Way. This
harassment allegedly began in July 2007 when two regular workers, Montefusco and
Lee, called him a “monkey” and placed a banana near him. Affidavit of Ferdinand
Marrero dated April 30, 2012 (“Marrero Aff.”) ¶ 23. Later that day, they allegedly called
plaintiff at home on his cell phone and made monkey noises, which plaintiff’s children
overheard. Id.; Affidavit of Susan B. Egan dated April 2, 2012 (“Egan Aff.”) Ex. 1
(“Marrero Dep.”), at 47. Montefusco admitted that he called plaintiff “monkey” but
Plaintiff alleges there were at least six regular or full-time movers: Danny Pimentel,
Frank Rosa, Neil Brady, Louis Anthony “Tony” Montefusco (“Montefusco”), Scott “Wolf”
Adams, and Robbie Lee (“Lee”). Marrero Aff. ¶ 12.
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testified that the nickname originated with plaintiff, who referred to himself as a “silverback gorilla” due to his grey hair. Affidavit of Michael Resko dated April 30, 2012
(“Resko Aff.”) Ex J (“Montefusco Dep.”), at 29-31.
From that day onward, R-Way employees allegedly referred to plaintiff almost
exclusively as “monkey.” Marrero Aff. ¶ 25. Plaintiff also alleges R-Way employees
repeatedly taunted him with monkey and gorilla toys or stuffed animals, which
sometimes were dressed in an R-Way t-shirt with plaintiff’s name written on it. Marrero
Aff. ¶ 26; see also Affirmation of Joseph Amadiz dated April 23, 2012 (“Amadiz Aff.”) ¶
13; Marrero Dep. at 52-53, 68. When plaintiff removed the toys, they were quickly
replaced. Marrero Dep. at 66. On one occasion, R-Way employees allegedly induced a
customer’s child to throw a monkey toy at plaintiff. See Marrero Dep. at 45; Amadiz Aff.
¶ 13. On another occasion, Montefusco allegedly said to plaintiff, “Hey monkey, turn
around,” and then threw a small red cloth monkey at plaintiff. Marrero Dep. at 69. RWay employees also allegedly posted a depiction of a chimpanzee inside a company
truck, with plaintiff’s name written on it. Id. at 68. 2
In the late summer of 2009, R-Way employees allegedly hung a poster in the RWay warehouse, depicting a monkey drinking from a bottle of alcohol. Handwritten
across the top of the poster was the message, “Have you seen our monkey? Reward if
found $$$.” Next to the monkey is plaintiff’s first name, “Fernando,” and across the
monkey’s chest is written “R-Way.” See Resko Aff. Ex. C. Plaintiff alleges at least 10
copies of the poster were hung in the R-Way warehouse and offices. Marrero Aff. ¶ 28;
see also Amadiz Aff. ¶ 19 (stating he saw the poster hanging in the R-Way warehouse);
Plaintiff testified the image was that of a particular chimpanzee who inflicted horrific
and life-threatening injuries on a woman in Connecticut. See Andy Newman, Pet
Chimpanzee Attacks Woman in Connecticut, N.Y. Times, Feb. 17, 2009.
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Resko Aff. Ex. K (Vecchio Dep.), at 47-48 (testifying he saw the poster in the R-Way
warehouse). Near the posters, at the entrance to the warehouse, a stuffed purple
monkey was hung from the ceiling. Marrero Dep. at 59-60. Plaintiff took down many of
the posters, but alleges the purple monkey and some of the posters were too high for
him to reach and were still hanging when he stopped working there on April 19, 2010.
Marrero Dep. at 58-59.
Plaintiff alleges that he complained several times to Chris Rooney about being
called “monkey,” which he interpreted to be racially derogatory. Marrero Aff. ¶ 29. The
first time he allegedly complained was the morning after Montefusco and Lee called him
and made monkey noises. Marrero Dep. at 51. Plaintiff testified that he was so angry,
he attempted to physically confront the two men but Chris Rooney intervened and told
him “you got to roll with the punches.” Id. Plaintiff also submitted an affidavit from
Joseph Amadiz, a part-time worker at R-Way, who stated that in November 2007 he was
riding back from a moving job with Marrero and heard Marrero complain to one of the
Rooney brothers about being called “monkey.” Amadiz Aff. ¶ 17. Plaintiff alleges he also
complained to Chris Rooney in October 2008 regarding the monkey comments and
stated he considered the comments “racial.” Marrero Dep. at 88. Rooney allegedly
again told plaintiff to “roll with the punches” and “just deal with it.” Id. Defendant
denies plaintiff ever complained or that Chris or Joe Rooney were aware of the taunts.
Plaintiff alleges that on March 10, 2010 he again complained to Chris Rooney
about the harassment. Compl. ¶ 24; Marrero Aff. ¶ 22. Plaintiff alleges that during this
conversation, Rooney called him a “fucking monkey.” Compl. ¶ 24; Marrero Aff. ¶ 22.
Following this exchange, plaintiff alleges his hours were severely reduced and his
employment was constructively terminated. Compl. ¶ 25; Marrero Aff. ¶ 22 (“I was
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called to work on only 4 days in the 6 weeks immediately following my complaint to
Chris Rooney on March 10, 2010.”). Plaintiff recounted that during that time, he had an
argument with Angel Lopez, another Hispanic employee, who participated in the
harassment. Lopez allegedly sent plaintiff a text message with a picture of a case of
bananas and the message, “Chris says there is no work, he ordered some food, go unload
this.” Marrero Dep. at 92. Plaintiff then called Lopez: “I told him straight up, ‘You’re an
Uncle Tom. Why are you following them? This is not a joke to me. You know as well as
I know that I’m taking this very – like it is being discriminated.’” Marrero Dep. at 100.
On April 19, 2010, the last day plaintiff worked for R-Way, plaintiff confronted
Chris Rooney regarding his reduced hours and the harassment he suffered. Marrero Aff.
¶ 30; Affidavit of Christopher Rooney dated April 2, 2010 (“Rooney Aff.”) Ex. 1
(Transcript). Plaintiff recorded that conversation, using his mobile phone:
CHRIS: Fernando? Some, some of the guys are telling me
that you’re unhappy, that, you know, things that they say and
everything like that, you know. If you don’t want to work
here, I understand. . . . But they said something that’s
bothering me, you know, they said you were going to sue me
and I don’t know . . .
....
FERNANDO: I’m getting tired of this shit, all right Chris? I
gave you five years, five years and you’re tellin’ me that you
got no work for me but you got a whole line of cars sittin’
outside that I have seniority over them, okay? Right or
wrong Chris? Right or wrong? I have seniority over ‘em.
And it took five years, three years of that dealing with fuckin’
monkey this and fuckin’ monkey that. Right or wrong?
Right or wrong?
CHRIS: Fernando, listen. I had talked to you about—if
that’s what’s still bothering you, okay, you handle that
amongst the men. You handle it with, with, with the guys.
I’m not gonna tell ‘em to do this or don’t do that. I spoke my
piece about it when it first started, I said knock it off, okay?
And then you were fine with it and you were jokin’ back and
forth with it.
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FERNANDO: Well, I had no choice, ‘cause uh, um, I mean
even you said it a couple times, even you said it like I heard
you, and you handed me a banana like it’s a joke, it’s not a
joke to me. It’s seriously, seriously it bothers me, it really
bothers me but I have to, I have to fuckin’ sit on the
sidelines, keep my mouth shut, while you yelled at me like
I’m some little kid? I dealt with this shit, I get sick. You used
to yell, you yelled at me like I was some little kid, you just
humiliate me in front of the guys, like I’m some little child.
I’m not a little child, I’m 40 years old. . . . I bit my tongue
because I needed the job, but then I’m gonna sit down and
then I come here and I see, every time I come here, I see
somebody, people that are under me workin’? No, that’s not
cool Chris. . . .
You know, you got, you got pissed off. You know, all of a
sudden you got pissed off that one time that I called you and
I couldn’t come in that Saturday, you called me that week
after, and come in and took the keys from me. Right? That’s
where the shit started. And ever since then, you had a
grudge against me, all right? . . . You know what? This is it, I
won’t be callin’ you no more. . . .
On May 26, 2010, plaintiff filed a charge with the New York State Division of
Human Rights. Compl. ¶ 8. As part of the dual-filing system, this complaint was also
filed with the Equal Employment Opportunity Commission (“EEOC”). Id. ¶ 9. On
December 2, 2010, the EEOC issued a Notice of Right to Sue. Id. ¶ 11. Plaintiff filed the
Complaint on December 16, 2010. Id.
JURISDICTION
This Court has original jurisdiction over plaintiff’s Title VII claims. The Court
also has supplemental jurisdiction over plaintiff’s state law discrimination claims.
Federal courts have supplemental jurisdiction over “all other claims that are so related
to claims in the action within such original jurisdiction that they form part of the same
case or controversy under Article III of the United States Constitution.” 28 U.S.C. §
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1367(a). A state law claim forms part of the same controversy if the state and federal
claim “derive from a common nucleus of operative fact.” United Mine Workers v. Gibbs,
383 U.S. 715, 725, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). Here, the parties and alleged
events and injuries that form the basis of plaintiff’s federal claims are identical to those
that form the basis of plaintiff’s state law claims.
DISCUSSION
I.

Summary Judgment Standard
Summary judgment is appropriate “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). As an initial matter, the moving party has the burden of
demonstrating that no genuine dispute of material fact exists for trial. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538
(1986). “A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by: (A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or (B) showing that the materials cited do not
establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
Once the moving party has met this burden, the opposing party “‘must do more
than simply show that there is some metaphysical doubt as to the material facts. . . .
[T]he nonmoving party must come forward with specific facts showing that there is a

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genuine issue for trial.’” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002)
(emphasis in original) (quoting Matsushita, 475 U.S. at 586–87). “If a party fails to
properly support an assertion of fact or fails to properly address another party’s
assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment if
the motion and supporting materials — including the facts considered undisputed —
show that the movant is entitled to it.” Fed. R. Civ. P. 56(e).
The Court is compelled to draw all reasonable inferences in favor of the
nonmoving party, Matsushita, 475 U.S. at 586, and a genuine dispute exists if a
reasonable jury could find in favor of the non-moving party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). However,
“[i]f the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249–50 (citations omitted). “[T]he
mere existence of some alleged factual dispute between the parties” alone will not defeat
a properly supported motion for summary judgment. Id. at 247–48 (emphasis in
original). “Thus, the nonmoving party may not rest upon mere conclusory allegations or
denials but must set forth ‘concrete particulars’ showing that a trial is needed.” R.G.
Grp., Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (quoting S.E.C. v. Res.
Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)).
II.

Material Issues of Fact Exist as to Whether Defendant is an
“Employer” under Title VII
As an initial matter, defendant moves for summary judgment on all of plaintiff’s

federal claims on the grounds that plaintiff has failed to show R-Way has fifteen or more
employees, a requirement of Title VII. See 42 U.S.C. § 2000e(b) (“The term ‘employer’
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means a person engaged in an industry affecting commerce who has fifteen or more
employees for each working day in each of twenty or more calendar weeks in the current
or preceding calendar year. . . .”); Walters v. Walters v. Metro. Educ. Enters., 519 U.S.
202, 117 S. Ct. 660, 136 L. Ed. 2d 644 (1997) (“[T]he ultimate touchstone under §
2000e(b) is whether an employer has employment relationships with 15 or more
individuals for each working day in 20 or more weeks during the year in question.”). 3
This employee-numerosity requirement is not a jurisdictional prerequisite, but rather an
element of plaintiff's claim for relief. Arbaugh v. Y & H Corp., 546 U.S. 500, 516, 126 S.
Ct. 1235, 163 L. Ed. 2d 1097 (2006).
Plaintiff’s claims relate to conduct during his employment in 2007, 2008, 2009,
and 2010. Therefore, to meet the employee-numerosity requirement of Title VII, he
must show that defendants employed fifteen or more people for twenty weeks in
calendar year 2006, 2007, 2008, 2009 or 2010. See, e.g., Jacobson v. Int’l Tours &
Events, LLC, No. 09 Civ. 1050 (JCH), 2010 WL 5211488, at *2 (D. Conn. Dec. 16, 2010).
The statute does not require that those twenty weeks run consecutively. To determine
how many employees an employer has for purposes of Title VII, courts frequently use a
test known as the “payroll method,” looking to an employer’s payroll to determine the
number of individuals it employs. See Walters, 519 U.S. at 206. The Court’s inquiry is
frustrated in this respect by the fact that defendant claims to keep no payroll records or,
indeed, any record of the number of movers employed, the identity of those employees,
what dates they worked, what they were paid, or even how many moving jobs R-Way
In contrast, the NYSHRL applies to any business with four or more employees. N.Y.
Exec. Law § 292(5) (defining an “employer” to exclude “any employer with fewer than
four persons in his or her employ”). It is undisputed that R-Way had at least four
employees. Def.’s Mem. at 12 (“The only truly full time employees of R-Way are Joe and
Chris Rooney and their wives.”).

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completed between 2007 and 2010. See Def.’s 56.1 ¶¶ 24-25; Resko Aff. Ex. M (“Rooney
Dep.”), at 94-95. Instead, defendant relies entirely upon the affidavit of Chris Rooney
that R-Way had four full-time managers (the two Rooney brothers and their wives), one
part-time bookkeeper (Ed Vecchio), and used no more than 5 movers on average, for a
total of less than ten employees at any time. Def.’s 56.1 ¶¶ 15-19; Rooney Aff. ¶¶ 4-10
Viewed in the light most favorable to plaintiff, there is ample evidence from
which a reasonable jury could conclude R-Way had the requisite number of employees.
For example, plaintiff worked nearly every working day in June, July, August, and
October of 2007, a total of approximately 20 weeks. See Marrero Aff. ¶ 15; Pl.’s
Response to Interrogatories at 7. Because plaintiff was a junior part-time employee at
that time, a reasonable fact-finder could conclude that full-time employees and more
senior part-time employees would have worked more than plaintiff did during that
period. Rooney Dep. at 75 (testifying that because plaintiff was a junior employee,
there were “a lot more men” he would have given work to, first); id. at 77 (testifying that
Joe Nastazio, a part-time mover senior to plaintiff, worked more days than plaintiff did
in 2007); see also Montefusco Dep. at 15 (testifying that “full time” workers consistently
work five days a week). Chris Rooney testified that even as late as 2010, there were 12
part-time movers who had seniority over plaintiff and therefore would have received
more work. Rooney Dep. at 93. Plaintiff’s affidavit states that the typical job employed
20 to 25 moving men using five moving trucks. Marrero Aff. ¶¶ 14, 16. Former R-Way
employee Joseph Amadiz corroborated that figure. Amadiz Aff. ¶ 6 (“On each of the
moving jobs I worked, there were approximately 20-30 men on each job, including
approximately 10 to 15 men I identified as ‘regulars.’”).
Although these affidavits conflict with Chris Rooney’s testimony, a jury could
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conclude Rooney’s testimony is not credible in light of numerous self-serving
inconsistencies and evasive answers. In addition, further evidence in the record also
supports plaintiff’s testimony. Defendant’s response to interrogatories lists seven “fulltime” employees and 11 part-time movers who worked at R-Way during the time
plaintiff was employed. Resko Aff. Ex. H. To that list should be added the Rooneys’
wives, who worked full-time. The list also omits Rob Flarey, a truck driver, see Egan Aff.
Ex. 2 (Lopez Dep.), at 20, and eleven part-time movers recorded in the parties’ exhibits:
Jim Keenan and Mike Ferrara, see Resko Aff. Ex. E; Jospeh Amadiz, see Afadiz Aff.; M.
Daly, R. Metz, W. Kober, T. McMahon, T. Manino, and R. Battaglia, who all received
Christmas bonuses from R-Way, see Resko Aff. Ex. I; Mike Tedesco, nicknamed
“Meterman Mike,” see Montefusco Dep. at 35, and Ed Vecchio, Jr., Egan Aff. Ex. 2
(Lopez Dep.) at 34-35. In total, there are 11 full-time employees and 23 part-time
employees recorded as having worked at R-Way at some time during the relevant
period. This number is consistent with Chris Rooney’s admission that he had the
telephone numbers of approximately 35 movers in his cell phone contact list. Rooney
Dep. at 58-60.
For the foregoing reasons, a reasonable jury could find that R-Way met the
employee-numerosity requirement of Title VII and thus defendant’s motion for
summary judgment on these grounds must be denied.
III.

Hostile Work Environment
To survive a summary judgment motion on a hostile work environment claim,

“[p]laintiff must introduce evidence showing that his workplace was permeated with
discriminatory intimidation, ridicule, and insult, which was sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive work
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environment.” Davis-Bell v. Columbia Univ., No. 10 Civ. 4362 (CM), 2012 WL 946680,
at *14 (S.D.N.Y. Mar. 19, 2012) (emphasis in original) (quotation and citations omitted).
In order to prove that a workplace is “hostile,” a plaintiff must demonstrate that: “(1) he
subjectively perceive[d] the environment to be abusive; (2) the conduct alleged
objectively created an environment that a reasonable person would find hostile or
abusive; and (3) that the work environment was abusive to employees because of their
race, gender, religion, or national origin.” Cunningham v. N.Y.S. Dep’t of Labor, 326 F.
App’x 617, 620 (2d Cir. 2009) (summary order) (quotation and citation omitted). 4 A
work environment’s hostility is assessed based on the totality of the circumstances.
Harris v. Forklift Sys. Inc., 510 U.S. 17, 23, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993).
Defendant moves for summary judgment on the grounds that plaintiff has failed
to show his workplace was hostile “because of” his race. Defendant argues that
“monkey,” “may be considered a racial slur against African-Americans [but] it is not a
known racial slur against Hispanics. . . .” Def.’s Mem. at 7. Therefore, defendant argues
“monkey” is a race-neutral term and plaintiff has failed to show any contextual grounds,
other than his own conjecture, for interpreting “monkey” to be an ethnic slur. In
making this argument, defendant misconstrues two Fourth Circuit cases for the
astonishing proposition that “if the person called a monkey is not also called a “nigger”
or any other demonstrably racial pejorative and isn’t also African American, the word
‘monkey’ has no racial content.” Def.’s Reply Mem. at 2 (citing White v. BFI Waste
Servs., LLC, 375 F.3d 288 (4th Cir. 2004); Spriggs v. Diamond Auto Glass, 242 F.3d 179
(4th Cir. 2001). The Court discerns no such rule from these cases. Nor did the Fourth
Hostile work environment claims under Title VII and the NYSHRL are analyzed using
the same standard. Citroner v. Progressive Cas. Ins. Co., 208 F. Supp. 2d 328, 339
(E.D.N.Y. 2002) (citations omitted).
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Circuit suggest that “monkey” is only offensive to African-Americans. To the contrary,
the Fourth Circuit observed that “‘[t]o suggest that a human being’s physical appearance
is essentially a caricature of a jungle beast goes far beyond the merely unflattering; it is
degrading and humiliating in the extreme.’” White, 375 F.3d at 298 (quoting Spriggs,
242 F.3d at 185).
Thus, the fact that plaintiff is not specifically of African heritage would not
prevent a jury from concluding “monkey” was a derogatory reference to his race.
Plaintiff self-identifies as a dark-skinned, dark-haired Hispanic man. Marrero Dep. at
43. He testified he understood “monkey” to be a reference to his physical appearance.
Id. at 44-45. Plaintiff also submitted an affidavit from a Hispanic co-worker, Joseph
Amadiz, who witnessed plaintiff being called “monkey” and interpreted “monkey” to be
a derogatory reference to plaintiff’s race. Amadiz Aff. ¶ 11. As plaintiff rightly notes,
although nicknames were common between employees at R-Way, none of the
nicknames given to other employees had any racial connotation. 5 Pl.’s Mem. at 10.
Although at least one of the employees who called plaintiff “monkey,” Angel
Lopez, was Hispanic, a rational jury could still conclude that “monkey” was a racial slur.
Plaintiff described an argument he had with Lopez after Lopez taunted him with
monkey jokes. Plaintiff called Lopez an “Uncle Tom” and criticized Lopez for “following
them,” Marrero Dep. at 100, the plain implication being that Lopez should not
collaborate in discrimination against one of his own race. Furthermore, the term
“Hispanic” means only “Spanish-speaking, esp. applied to someone of Latin-American
descent living in the United States.” Oxford English Dictionary (2d ed. 1989) Like

Other employees’ nick-names included: “Wolf,” “Little Whopper,” “Big Whopper,”
“Toilet Bowl,” “Sarge,” and “Meterman Mike.” Def.’s Mem. at 6.
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Latin-America itself, the term encompasses a wide range of races and ethnicities, see,
e.g. Paul Taylor et al., When Labels Don’t Fit: Hispanics and Their Views of Identity,
Pew Research Center (April 4, 2012), available at http://www.pewhispanic.org/
files/2012/04/PHC-Hispanic-Identity.pdf (reporting on the diversity of racial, national,
and cultural affiliation of those Americans considered “Hispanic”), and discrimination
sometimes occurs between these groups. For the same reason, although other Hispanic
men at R-Way were not called “monkey,” it is not implausible that one Hispanic man, of
darker skin or differing ethnicity, should be targeted for his physical appearance while
others are not. See Marrero Dep. at 43 (testifying that plaintiff was darker-skinned than
the other Hispanic employees).
For the foregoing reasons, a reasonable jury could find that plaintiff was taunted
and harassed because of his race and defendant’s motion for summary judgment on
plaintiff’s hostile workplace claims must be denied.
IV.

Retaliation
Plaintiff alleges that he complained to Chris Rooney on March 10 about the

hostile work environment he was experiencing and that after he complained, Rooney
retaliated against him by reducing his working hours. See Compl. ¶ 25 (“Following [the
March 10] exchange, plaintiff had been called to work only one (1) day (April 15, 2010)
in the approximate month immediately thereafter, and his employment had been
actually and constructively terminated in retaliation for his complaining. . . .”). 6 Title
VII makes it unlawful for an employer to discriminate against an employee “because he
[or she] has opposed any practice made an unlawful employment practice by this

6

Plaintiff variously records this confrontation as occurring on April 15, 2010 and April 19, 2010. Compare Compl.
¶2

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subchapter, or because he [or she] has made a charge . . . in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Retaliation
claims, like discrimination claims, are subject to the McDonnell Douglas burdenshifting analysis. 7 Kaytor v. Elec. Boat Corp., 609 F.3d 537, 552 (2d Cir. 2010). To
make out a prima facie case of retaliation, a plaintiff must show: “(1) participation in a
protected activity; (2) that the defendant knew of the protected activity; (3) an adverse
employment action; and (4) a causal connection between the protected activity and the
adverse employment action.” Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d
Cir. 2005) (quotation omitted).
Defendant seeks summary judgment on two grounds: first, on the grounds that
plaintiff did not engage in a “protected activity” because plaintiff did not alert Rooney
that he was complaining about conduct prohibited by Title VII or the NYSHRL; second,
on the grounds that even if the March 10 conversation constituted “protected activity,”
plaintiff has failed to show a causal connection between the protected activity and any
adverse employment action.
A. Plaintiff has shown he engaged in protected activity
To constitute protected activity, the plaintiff must have taken action to protest or
oppose statutorily prohibited discrimination. “While the law is clear that opposition to a
Title VII violation need not rise to the level of a formal complaint in order to receive
statutory protection, this notion of ‘opposition’ includes activities such as ‘making
complaints to management, writing critical letters to customers, protesting against
discrimination by industry or by society in general, and expressing support of coRetaliation claims under Title VII and the NYSHRL are governed by the same
standards. See Carmody v. Vill. of Rockville Ctr., 661 F. Supp. 2d 299, 324 (E.D.N.Y.
2009) (citations omitted).
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workers who have filed formal charges.’” Cruz v. Coach Stores, Inc., 202 F. 3d 560, 566
(2d Cir. 2000) (quoting Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d
Cir. 1990). Specific reference to Title VII is not required but “the employer had to have
been aware of the complaint and must have understood, or could reasonably have
understood, that the plaintiff’s opposition was directed at conduct prohibited by Title
VII.” Marks v. Nat’l Communications Ass’n, Inc., 72 F. Supp. 2d 322, 336 (S.D.N.Y.
1999) (citing Galdieri–Ambrosini v. Nat’l Realty & Devel. Corp., 136 F.3d 276, 292 (2d
Cir. 1998)).
Defendant argues that Marrero’s March 10 conversation with Rooney did not
meet that standard and therefore plaintiff has not shown he engaged in protected
activity. Standing alone, the March 10 complaint did not constitute protected activity:
plaintiff testified that the only thing he complained of on March 10 was that Chris
Rooney was ignoring seniority in assigning work. He did not complain about being
called “monkey.” See Marrero Dep. at 85, 91. However, the March 10 conversation
was not the only complaint plaintiff made. Plaintiff alleges he complained to Rooney
specifically about being called “monkey” in July 2007 when the harassment began,
Marrero Aff. 29; Marrero Dep. at 51, in November 2007, Amadiz Aff. ¶ 17, in October
2008, Marrero Dep. at 88, and in the late summer of 2009, Pl.’s Resp. to Interrog. At 2.
Plaintiff also complained about being called “monkey” on April 19. See Rooney Aff. Ex. 1
(Transcript) at 3. These complaints were sufficient to constitute protected activity. See,
e.g., Crawford v. Metro Gov’t of Nashville & Davidson Cnty., 555 U.S. 271, 275, 129 S. Ct.
846, 850, 172 L.Ed. 2d 650 (2009) (reporting harassing and “inappropriate behavior” by
co-workers to a superior qualifies as “opposition”).

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B. Plaintiff has failed to show a causal connection between his
protected activity and any adverse employment action
However, plaintiff has failed to show a causal connection between that protected
activity and any adverse employment action. Plaintiff does not allege that defendant
retaliated against him for any of the complaints in 2007, 2008, or 2009. Plaintiff
alleges defendant only retaliated against him after the March 10, 2010 complaint, when
Rooney drastically reduced his hours, constructively terminating him. Among other
things, causation may be proved “indirectly, by showing that the protected activity was
followed closely by discriminatory treatment, or through other circumstantial evidence. .
. .” Raniola v. Bratton, 243 F.3d 610, 625 (2d Cir. 2001) (quotation omitted). But the
record demonstrates that plaintiff’s hours were reduced before he allegedly complained
on March 10. See Marrero Aff. ¶ 21 (recording that plaintiff worked two days in
February, five days in March and one day in April 2010); Marrero Dep. at 81-82
(testifying that his hours were reduced beginning in February 2010). “Where timing is
the only basis for a claim of retaliation, and gradual adverse job actions began well
before the plaintiff had ever engaged in any protected activity, an inference of retaliation
does not arise.” Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir.
2001).
The February reduction in hours also came long after plaintiff’s prior complaint
in 2009 about racial harassment. See Pl.’s Response to Def.’s First Interrogatories at 2
(stating the prior complaint occurred in “late summer or early fall 2009” when plaintiff
complained to Rooney about being called monkey). A delay of four or five months does
not support an inference of retaliation. See Flood v. UBS Global Asset Mgmt., Inc., No.
10 Civ. 374 (RJH), 2012 WL 288041, at *17 (S.D.N.Y. Feb.1, 2012) (collecting cases and
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observing that although there is no “bright line” rule, courts in this Circuit generally
consider a delay between the plaintiff’s protected action and the employer’s adverse
employment action of six weeks or less to permit an inference of retaliation and a delay
of two months or more to counsel against one). Finally, although plaintiff alleges at
times that he was fired on April 19, plaintiff’ transcript of the April 19 conversation
indicates that he quit his job, not that he was fired. See, e.g., Rooney Aff. Ex 1
(Transcript) at 5 (“FERNANDO: . . . . You know what? This is it, I won’t be callin’ you no
more.”).
In addition, plaintiff himself proffered a legitimate, non-retaliatory reason for the
reduction in his hours. When questioned why he believed his hours had been reduced,
plaintiff’s testified that his hours were cut because he failed to show up for work on a
certain day, not because he complained about racial harassment. Plaintiff explained he
had failed to come to work on a Saturday when Rooney had scheduled him to work:
A: [A]fter that that [sic] I didn’t come in [to work], that’s
when more things started to happen.
Q: Like what?
A: You know, days started being taken away from me. My
keys got taken away from me. . . .
Q: So up until this particular incident where you were unable
to work, things between you and Chris were pretty solid?
A: Right.
Q: Now after the poster goes up and you’re unable to come to
work, what are the things that Chris does?
A: He starts taking days off of me.
See Marrero Dep. at 77-78. Plaintiff made similar allegations in his April 19 recorded
conversation. See Rooney Aff. Ex. 1, at 5 (“You know, all of a sudden you got pissed off
that one time that I called you and I couldn’t come in that Saturday, you called me that
week after and come in and took the keys from me. Right? That’s where the shit
started. And ever since then, you had a grudge against me, all right?”). Where an
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employer presents evidence of a legitimate, non-retaliatory reason for the adverse
employment action, the burden shifts back to the employee to show that retaliation was
a substantial reason for the adverse employment action. Jute, 420 F.3d at 173. Here,
plaintiff himself proffered the non-retaliatory explanation and has provided no evidence
that it was pretextual.
For the foregoing reasons, plaintiff has failed to show a causal connection
between his protected activity and any adverse employment action. Because plaintiff
has failed to establish a prima facie case, defendant’s motion for summary judgment on
plaintiff’s retaliation claims must be granted.
CONCLUSION
For the foregoing reasons, defendant’s motion for summary judgment is granted
as to plaintiff’s Title VII and NYSHRL retaliation claims and denied as to all other
claims.
SO ORDERED.
Dated:

Brooklyn, New York
August 16, 2012
___/s/____________________
I. Leo Glasser
United States District Judge

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