Wallen v. Blackrock Consulting, Inc. et al
Filing
188
MEMORANDUM AND ORDER granting in part and denying in part 140 Motion for Summary Judgment. For the reasons discussed in the attached Memorandum and Order, the Court grants in part and denies in part Defendant's motion for summary judgment. Ordered by Judge Margo K. Brodie on 3/30/2019. (Morel, Christopher)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------NOEL O. WALLEN,
Plaintiff,
MEMORANDUM & ORDER
12-CV-6196 (MKB) (SJB)
v.
TEKNAVO GROUP and BLACKROCK
CONSULTING, INC.,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Noel O. Wallen, proceeding pro se,1 commenced the above-captioned action on
December 17, 2012, against Defendants Teknavo Group and Blackrock Consulting, Inc.
(collectively “Teknavo” or “Defendant”),2 alleging violations of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and the Americans with Disabilities Act of
1990, 42 U.S.C. § 12101 et seq. (“ADA”). (Compl., Docket Entry No. 1.) Plaintiff asserts
claims under Title VII for race, color, and national origin discrimination, hostile work
environment, and retaliation. (Id.) Plaintiff also asserts claims under the ADA for disability
discrimination for failure to accommodate and retaliation. (Id.) On July 25, 2017, Defendant
moved for summary judgment as to all claims. (Def. Mot. for Summ. J. (“Def. Mot.”), Docket
1
Plaintiff has been represented at various times during the course of this litigation,
including at its onset. (See Compl. 14, Docket Entry No. 1.)
2
While Plaintiff sues Teknavo and Blackrock as two different defendants, they are one
and the same. In July of 2014, Blackrock changed its name to Teknavo USA, Inc. (Decl. of Tom
Cox (“Cox Decl.”) ¶ 2 n.1, Docket Entry No. 144.) For ease of reference, the Court refers to
Teknavo and Blackrock collectively as “Teknavo” or “Defendant.”
Entry No. 140; Def. Mem. in Supp. of Def. Mot. (“Def. Mem.”), Docket Entry No. 141.) On
October 7, 2017, the Court referred Defendant’s motion to Magistrate Judge Sanket J. Bulsara
for a report and recommendation. (Order dated Oct. 7, 2017.)
By report and recommendation dated February 22, 2018 (the “R&R”), Judge Bulsara
recommended that the Court grant Defendant’s motion for summary judgment in its entirety.3
(R&R, Docket Entry No. 165.) On March 12, 2018, Plaintiff timely objected to the R&R. (Pl.
Obj. to R&R (“Pl. Obj.”), Docket Entry No. 170.) On May 17, 2018, Defendant responded to
Plaintiff’s objections, and requested that the R&R be adopted in its entirety. (Def. Resp. to Pl.
Obj. (“Def. Resp.”), Docket Entry No. 182.) For the reasons explained below, the Court grants
in part and denies in part Defendant’s motion for summary judgment.
I. Background
The Court assumes familiarity with the underlying facts as detailed in the R&R and
provides only a summary of the pertinent facts and procedural background.
a. The parties
Plaintiff is a black Jamaican-American male, originally from the West Indies. (Decl. of
3
The Court initially entered a Memorandum and Order adopting the R&R in its entirety
on March 12, 2018, finding that no timely objections had been filed by March 9, 2018 by either
party. (March 2018 Decision, Docket Entry No. 168.) Defendant had filed a certificate of
service purporting to effectuate service by email and mail on February 23, 2018. (Defendant
Certificate of Service, Docket Entry No. 166.) Plaintiff filed objections on March 12, 2018, after
the Clerk of Court had already entered judgment. The Court subsequently determined that
Defendant had not obtained express consent from Plaintiff for service by electronic means as
required by Rule 5(b)(2)(E) of the Federal Rules of Civil Procedure. See Martin v. Deutsche
Bank Sec. Inc., 676 F. App’x 27, 29 (2d Cir. 2017) (“[T]he requisite consent ‘must be express,
and cannot be implied from conduct.’” (citation omitted)). As a result, the Court vacated its
March 2018 Decision, finding that Plaintiff had until March 12, 2018, to file objections to the
R&R. (Order dated April 26, 2018); see also Fed. R. Civ. P. 6(d) (adding three days the period a
party may or must act after being served and service is made by mail under Rule 5(b)(2)(C)).
2
Noel O. Wallen, (“Pl. Decl.”) ¶ 3, annexed to Pl. Opp’n to Def. Mot. (“Pl. Opp’n”), Docket Entry
No. 157, as Ex. 1, Docket Entry No. 157-1.)4 He has a bachelor’s degree in applied physics,
applied mathematics, (id. ¶ 4), and a master’s degree in telecommunication and computer
science, (id. ¶ 5). Since 1982, Plaintiff has worked as a software engineer. (Id. ¶ 7.)
Teknavo “designs, builds and manages front office technology applications for the
financial services sector.”5 (Def. Statement of Material Facts Pursuant to Local Rule 56.1 (“Def.
56.1”) ¶ 1, Docket Entry No. 142.) Jay Palmer is the Chief Executive Officer and Chief
Operating Officer, and Victoria McGlyn is the Chief Financial Officer. (Id. ¶¶ 2, 5.) On or about
May or June of 2010, Teknavo began negotiating with Bloomberg LP to provide software
services “involv[ing] the analysis of Bloomberg product and system flow, methods, components,
4
Citations to Plaintiff’s “Ex.” refer to the number of the attachment to Plaintiff’s
opposition brief to Defendant’s motion for summary judgment.
5
The Court disregards Plaintiff’s conclusory, unsupported objections to Defendant’s
Local Rule 56.1 statements pursuant to the United States District Courts for the Southern and
Eastern Districts of New York. “Pursuant to Local Rule 56.1, a nonmoving party, in its
opposition to a summary judgment motion, must ‘include a correspondingly numbered paragraph
responding to each numbered paragraph in the statement of the moving party . . . [that] must be
followed by citation to evidence which would be admissible’ under Federal Rule of Civil
Procedure 56(c).’” Herlihy v. City of New York, 654 F. App’x 40, 43 (2d Cir. 2016) (citation
omitted). “Accordingly, a nonmoving party may not rely solely on ‘allegations in [the] pleading,
or on conclusory statements, or on mere assertions that affidavits supporting the motion are not
credible’ to defeat a summary judgment motion.” Id. (citation omitted). The Court thus deems
admitted Defendant’s statements to which Plaintiff has failed to properly object or otherwise
provide admissible evidence. See Kelly v. City of New York, 576 F. App’x 22, 24 n.2 (2d Cir.
2014) (finding no error or abuse of discretion where district court deemed admitted 56.1
statements to which defendants only offered “general denials and admissions that did not meet
the substance of plaintiffs allegations”). Due to the conclusory nature of the objections, the
Court relies principally on Plaintiff’s deposition testimony, construing the facts in the light most
favorable to Plaintiff, the non-movant. See Nguedi v. Fed. Reserve Bank of N.Y., No. 16-CV-636,
2019 WL 1083966, at *1 (S.D.N.Y. Mar. 7, 2019) (“[W]here a pro se plaintiff fails to submit a
proper Rule 56.1 statement in opposition to a summary judgment motion, the [c]ourt retains
some discretion to consider the substance of the plaintiff’s arguments, where actually supported
by evidentiary submissions.” (citations omitted)).
3
and various practices related to the Operations, Product and Sales Group,” (the “OPS Project”).
(Id. ¶ 13.)
Teknavo contracted DTC Consulting and Walden Systems as independent contractors for
management purposes on various projects including the OPS Project. (Id. ¶¶ 7–8, 20–21.) Tom
Cox, the president of DTC Consulting, ensures that Teknavo is “properly organized and staffed
to deliver the services promised and that the services are delivered.” (Id. ¶ 7.) Cox also “set the
direction for the OPS Project, but did not interact on a daily basis with members of the [OPS]
team.” (Id. ¶ 21.) Anatoly Ditinsky, an employee of Walden Systems, provided managerial
services, and served as “Team Leader and Project Manager of the OPS Project.” (Id. ¶ 7.) As
Team Leader and Project Manager, Ditinsky “helped establish goals . . . , coordinated, facilitated
the day-to-day progress . . . , [and] managed expectations . . . of the OPS Team.” (Id. ¶ 7.)
“Neither Ditinsky nor Cox had responsibility for making decisions regarding hiring, firing,
promoting, demoting, and/or approving compensation of employees of Teknavo.”6 (Id. ¶ 24.)
While authorized to “mak[e] recommendations regarding bonus payments, hiring and
terminations of the OPS Team members,” Cox did not have “ultimate authority to approve such
decisions.” (Id. ¶ 23.)
b. Plaintiff’s hiring
In early August of 2010, Teknavo hired Plaintiff to be a Senior Programmer Analyst, a
position with a base salary of $130,000 and the “added benefit of a yearend discretionary bonus
dependent upon performance delivery and management appraisal.” (Employment Offer Letter,
annexed to Decl. of Jennifer Courtian (“Courtian Decl.”), Docket Entry No. 143, as Ex. 8,
6
Plaintiff specifically did not dispute this fact in his response to the Defendant’s Rule
56.1 Statement. (See Pl. Resp. to Def. 56.1 (“Pl. Resp.”) ¶ 24, Docket Entry No. 157-3.)
4
Docket Entry No. 143-3.) On September 1, 2010, Plaintiff officially began working for Teknavo
on the OPS Project.7 (Pl. Decl. ¶ 12.) Other members of the OPS Team included Yuri
Khupchenko, Alexander, Nachayev, Oleg Tsarkov, Frank LaPiana, Michael Keeler, and
Constantine Papadopoulos. (Declaration of Anatoly Ditinsky (“Ditinsky Decl.”) ¶ 7, Docket
Entry No. 145.) Plaintiff contends that he, Tsarkov, and LaPiana were the only programmers on
the OPS Team. (Pl. Resp. to Def. 56.1 (“Pl. Resp.”) ¶ 36, Docket Entry No. 157-3.)
c. Racial discrimination allegations
Plaintiff asserts that during the course of his employment Tsarkov, LaPiana, and Ditinsky,
in particular, discriminated against him because of his race.
i. Incidents involving Tsarkov and LaPiana
On September 9, 2010, Tsarkov expressed surprise at meeting an African-American
software engineer.8 Tsarkov elaborated that “when immigrants first encounter AfricanAmericans, you cannot help but conclude that they are not smart.” (Dep. of Noel O. Wallen (“Pl.
Dep.”) 238:16–22, Docket Entry No. 164-1.)
7
Plaintiff asserts that he began working for Defendant unofficially in August of 2010.
(Decl. of Noel O. Wallen, (“Pl. Decl.”) ¶ 12, annexed to Pl. Opp’n to Def. Mot. (“Pl. Opp’n”),
Docket Entry No. 157, as Ex. 1, Docket Entry No. 157-1.)
8
The Court disregards Plaintiff’s statements in the declaration in opposition to summary
judgment that contradict Plaintiff’s deposition testimony. See Domenech v. Parts Auth., Inc., 653
F. App’x 26, 28 (2d Cir. 2016) (“[A] party may not create an issue of fact by submitting an
affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts
the affiant’s previous deposition testimony.” (quoting Crawford v. Franklin Credit Mgmt. Corp.,
758 F.3d 473, 482 (2d Cir. 2014))); Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cir. 1997)
(disregarding plaintiff’s declaration as to an alleged statement made by a decisionmaker during a
meeting because plaintiff had testified at his deposition that he “could not remember the points
that were covered during the . . . meeting”).
5
In November of 2010,9 LaPiana screamed at Plaintiff during a meeting. (Id. at 244:17–
20.) Plaintiff remembers LaPiana questioning his competence and technical ability but does not
recall the specific words used. (Id. at 245:21–246:21.) He believes LaPiana was attempting to
humiliate him by trying “to convey [a] feeling of inferiority.” (Id. at 245:2–12.) After this
incident, contemporaneous emails between Cox and Ditinsky suggest that Plaintiff may have
accused LaPiana of racism to Ditinsky but not to Cox. (See November 10, 2010 email, annexed
to Pl. Opp’n as Ex. 4, Docket Entry No. 157-4.)
Plaintiff first confided about LaPiana’s actions to Raquel Schneiderman, a Bloomberg
employee, in November of 2010, without expressly stating that he felt discriminated against. (Pl.
Dep. at 258:18–259:24, 260:10–12.) Schneiderman recommended that Plaintiff speak to Cox
about the incident. (Id. at 259:16–18.) Shortly thereafter, Plaintiff complained to Cox about
Tsarkov’s and LaPiana’s comments.10 Plaintiff told Cox that he felt discriminated against but did
not state on what basis. (Id. at 264:4–11, 16–24, 267:16–22.) He instead spoke generally about
his Jamaican background, and stated that “we don’t tolerate those things.” (Id. at 264:8–11,
266:11–15.) After this conversation, Cox recommended that Plaintiff speak to Ditinsky, and
explained that he would be available for a follow-up. (Id. at 262:13–25.) Following Cox’s
advice, Plaintiff spoke to Ditinsky, expressing concern over the manner in which LaPiana talked
9
This incident may have actually occurred on October 28, 2010 rather than in November
of 2010. (See November 10, 2010 email, annexed to Pl. Opp’n as Ex. 4, Docket Entry No. 1574.)
10
Plaintiff states in his declaration that he actually complained to Cox on October 28,
2010. (Pl. Decl. ¶ 18.) Contemporaneous emails also indicate that Plaintiff may have met with
Cox and Ditinsky in late October of 2010. (See November 10, 2010 email.)
6
to him.11 On November 10, 2010, after his meeting with Ditinsky, Plaintiff sent an email to Cox
explaining that that the incident was now a “NON ISSUE,” and that LaPiana treated him like a
“stepson.” Plaintiff concluded the email by thanking Cox for his “expert advice.” (Cox Decl. ¶
52.)
On March 22, 2011, LaPiana screamed at Plaintiff during a meeting over a disagreement
about work. (Id. at 255:15-258:12, 270:22-271:16.) LaPiana told Plaintiff that “people of your
type are stupid so you should listen,” in front of other OPS Team members Khupchenko and
Tsarkov. (Id. at 271:2–10.) Plaintiff told Ditinsky about LaPiana’s remark. (Id. at 273:3–4.)
Ditinsky then convened a meeting with all those present for LaPiana’s remark. (Id. at 273:21–
25.) Because he was “the only black guy there,” and wanted to “ke[ep] his cool,” Plaintiff did
not say anything during the meeting. (Id. at 274:9–13.) Ditinsky called off the meeting after “he
realized he wasn’t getting anywhere.” (Id. at 274:16–21.) The next day, LaPiana sent an email
to Plaintiff extending in part “apologies for any discourtesy and apparent lack of respect.”
(LaPiana email dated March 23, 2011, annexed to Ditinsky Decl. as Ex. 3, Docket Entry No.
145-1.) Plaintiff did not speak to Cox about the incident until over three months later on July 1,
2011. (Pl. Dep. at 277:24–278:2.) He also explained in his deposition that this was the only time
LaPiana ever expressly made a racially derogatory remark. (Id. at 256:11–13.)
On June 28, 2011, LaPiana yelled at Plaintiff about another work related dispute. (Id. at
289:25–290:6.) Plaintiff had “asked [LaPiana] for [a] specification.” (Id. at 289:21–22.)
Seemingly offended, LaPiana in response stated “I’m not giving it to you, what do you want it
for,” and was “[y]elling and behaving in a manner.” (Id. at 290:2–6.) In a July 1, 2011 email to
11
Regarding this incident, Plaintiff testified that he never told Ditinsky that he felt
discriminated against. (Dep. of Noel O. Wallen (“Pl. Dep.”) 266:7–10, Docket Entry No. 164-1.)
7
Cox about the incident, Plaintiff mentioned LaPiana’s unprofessional actions but did not state
that there was any discrimination because of his race, national origin, or disability. (Id. at
299:15–300:7.)
ii. Incidents involving Ditinsky
Plaintiff asserts that Ditinsky discriminated against him throughout the course of his
employment by subjecting him to differential treatment in comparison to his white co-workers.
Tsarkov and LaPiana were permitted to arrive late to work, call in rather than attend
meetings in person, and Ditinsky canceled meetings on their behalf. (Pl. Dep. at 147:9–11.)
Plaintiff admits that he never requested to call in to a meeting, and also does not know if Tsarkov
and LaPiana had provided any excuses in advance. (Id. at 147:19–148:9, 153:13–15.) Plaintiff
never asked Ditinsky to cancel a meeting “because [he] d[idn’t] think it would happen.” Nor had
Plaintiff ever told Ditinsky that the regular start time did not work for him. (Id. at 149:9–13,
152:5–7.) Ditinsky explained to Plaintiff that he allowed Tsarkov and LaPiana to come late to
work because they were married. (Id. at 149:11–18.)
Unlike Tsarkov and LaPiana, Ditinsky required Plaintiff to produce his work in hard copy
for review by other members of the OPS Team. (Id. at 159:2–13.) Plaintiff complained to
Ditinsky about having to provide hard copies. (Id. at 162:4–6.) Ditinsky explained that he was
the manager and could run the OPS Project in a manner he saw fit. (Id. at 162:6–9.)
Work discussions were at times held in Russian or another foreign language, precluding
Plaintiff from learning relevant information for the OPS Project. (Id. at 162:10–14.) Many of
these discussions were in cubicles or the general work space, with one or two exchanges in the
conference room. (Id. at 171:3–19.) Plaintiff did not object to others’ use of Russian, (id. at
171:20–22), and LaPiana and a few other members of the OPS Project also did not speak the
8
language, (id. at 168:15–22).
Plaintiff was at times given undesirable, non-technical tasks.12 In particular, Plaintiff
asserts that he was reassigned to Pamela Hastings, a Bloomberg employee, sometime after March
22, 2011, shortly after LaPiana’s outburst. (Id. at 89:6–25 (explaining it could have been the day
after or couple of days after the March 22, 2011 incident with LaPiana).) Ditinsky explained to
Plaintiff via email that he was to assist Hastings for the foreseeable future.13 (Id. at 90:4–9.) The
undesirable “operational tasks” included preparing training manuals, interviewing job applicants,
“develop[ing] programming questions for [a] Russian programmer,” and logging error messages
in a spreadsheet. (Id. at 89:3–19, 175:2–23.) Because he is a computer programmer, Plaintiff
contends that he should not have had to do these tasks, and found them undesirable as they
constituted a large portion of his daily work. (Id. at 174:19–23, 177:6–17.) Although everyone
did some of these undesirable tasks, Plaintiff claims that other OPS Project members did not
have to do as many as him and were doing “something technical regarding programming” the
“majority of the time.” (Id. at 178:2–9, 179:16–23.) Plaintiff also admits, however, that he does
not know all of the tasks Ditinsky assigned to Tsarkov, LaPiana, and others. (Id. at 179:24–
180:11.)
12
On March 25, 2011, Plaintiff complained to Keeler that the main change in assignment
was for him to work “SOLELY [on] the OPC analysis doc.” (Plaintiff email to Keeler dated Mar.
25, 2011, annexed to Pl. Opp’n as Ex. 6, Docket Entry No. 157-6.) Although perhaps not ideal,
(see id.), the OPC analysis assignment may have been a technical OPS project, (see Pl. Dep. at
188:18–20 (“[Ditinsky] asked me to render my technical opinion and I provided that.”)).
13
Although the Court accepts for purpose of this decision that the alleged reassignment
occurred sometime after March 22, 2011, Plaintiff may have been reassigned to work with
Pamela Hastings prior to that date. On March 9, 2011, Ditinsky emailed Plaintiff that “Pam and
Dora” would be working with him starting the following Monday (March 14, 2011). (Ditinsky
email to Plaintiff dated March 9, 2011, Docket Entry No. 157-5.) Consistent with this evidence,
the only reassignment discussed in the Complaint is that of Plaintiff’s work to Russian
programmers as of May 24, 2011. (Compl. ¶ 33.)
9
Plaintiff also asserts that many of his desirable, technical tasks were reassigned to OPS
Team members with less seniority and recently arrived Russian programmers. (Id. at 283:18–
23.) Other than a simulator project, Plaintiff cannot identify any specific, desirable tasks that
were reassigned from him to others. (Id. at 284:2–7, 285:6–18.) Plaintiff does not know to
whom the simulator project was reassigned, or the names, tasks, and project of the Russian
programmers. (Id. at 285:6–286:2.)
Ditinsky limited Plaintiff’s access to Bloomberg employees. Plaintiff believed that
meeting with Bloomberg employees from Research & Development was required to complete
his work successfully. (Id. at 199:5–17.) After directly meeting with Bloomberg employees a
few times, Ditinsky “laid down a rule” that Plaintiff could not have such meetings. (Id. at 201:5–
11.) Plaintiff “d[oesn’t] know if [the rule] applied to [him] alone.” (Id. at 201:14–15.) Ditinsky
and Keeler had meetings with Bloomberg employees instead. (Id. at 201:16–19.) Keeler would
later share his notes with Plaintiff. (Id.) Plaintiff also asserts that a white co-worker was allowed
to make a presentation to Bloomberg employees on a project he had worked on instead of him.
(Pl. Decl. ¶¶ 21, 78–82.)
Ditinsky also excluded Plaintiff a few times from meetings that other OPS Team
members were invited to attend. (Pl. Dep. at 212:25–213:14.) For example, on November 29,
2010, Plaintiff was unable to attend a meeting because he was invited during his lunch break.
(Id. at 218:12–221:25.) Plaintiff asserts that Ditinsky knew he was at lunch, a claim Ditinsky
denies. (Id.; Ditinsky email to Plaintiff dated November 29, 2010, annexed to Pl. Opp’n as Ex.
5, Docket Entry No. 157-5.) Plaintiff believes Ditinsky excluded him from meetings to make
him look “technically incompetent” because that is “the only conclusion [he] [could] come to.”
(Pl. Dep. at 214:5–19.) After missing the November 29, 2010 meeting, Plaintiff complained to
10
Ditinsky about the perceived disparate treatment. (Id. at 212:3–13.)
On May 23, 2011, Plaintiff was not invited to another meeting. (Id. at 223:14–225:10.)
Plaintiff immediately complained to Cox, (id. at 225:4–10), but did not tell Cox he felt he was
being discriminated against, (id. at 225:20–226:10).
Plaintiff also accuses Ditinsky of intentionally delaying his access to programming
resource for a period of three months. (Id. at 136:15–137:19, 137:15–19.) Plaintiff admits that
that he has no basis for this allegation other than “speculation.” (Id. at 139:3 (“I did say it would
be speculation.”).)
Plaintiff also claims that Ditinsky did not give him the same opportunities as other
employees for training, and testing out various software programs. (Id. at 234:5–235:19,
236:19–237:24.) As to training, Plaintiff states that he wanted to take the initiative to learn
Python and that Ditinsky failed to follow up on promises to provide the desired training. (Id. at
237:6–10.) Other than sending Ditinsky and Cox an email as to using his vacation time to get
the training, Plaintiff “just left it alone.” (Id. at 237:11–21.) Cox responded to Plaintiff’s email,
asking if the training “pertain[ed] to . . . work.” (Id. at 237:16–24.) As to the software programs,
Plaintiff states that “though [he] had the manual and instructions to do it, [he] was never given
the opportunity to actually do the real thing.” (Id. at 234:18–20.) When Plaintiff asked if he
could also test the program, Ditinsky stated that Plaintiff’s work with Hastings took priority. (Id.
at 235:19–236:2.)
In October or November of 2010, Ditinsky once delivered to Plaintiff a paycheck in an
opened envelope. (Id. at 278:3–23.) When Plaintiff questioned him about it, Ditinsky stated that
Cassandra Kinyon, a Human Resources representative, gave him the envelope already opened.
(Id. at 281:6–14.) Kinyon denied leaving the envelope open herself and called Ditinsky about
11
the matter. (Id. at 282:2–16.) Plaintiff does not know if any other employees had received a
paycheck in an opened envelope, (id. at 282:16–20), but finds it self-evident and assumes that
Ditinsky wanted to find out how much he was earning. (Id. at 280:21–25 (“His motive was to
find out how much I’m earning . . . I don’t want to speculate, but to me that’s self-explanatory.”);
Pl. Obj. 17 (“Of note, there is no objective evidence of Ditinsky in the record but he was
inquisitive enough to open [Plaintiff’s] check and smile then lied that Kinyon had given the
envelope opened.”).)
Plaintiff did not receive a discretionary bonus in February of 2011, (id. at 324:18–24), but
believes the Russian programmers received a bonus, although admitting he has no evidence to
support his belief, (Pl. Decl. ¶ 201; Pl. Opp’n 72 (explaining denial of access to bonus
information by magistrate judge).)14 Plaintiff does not know if anyone on the OPS Team
received a bonus. (Pl. Dep. at 324:25–325:3.)
Ditinsky allegedly once stated “I am not feeling you” to Plaintiff. (Pl. Opp’n 48.)
Plaintiff also states that Ditinsky employed an oppressive management style because of his
upbringing in a “Stalinist” regime. (See, e.g., id. at 79.)
d. Disability discrimination allegations
Plaintiff asserts that he suffers from astigmatism and glaucoma. (Pl. Dep. at 100:6–
105:4.) He first notified Ditinsky of his “eye problems” at some point before January of 2011.
(Id. at 110:2–21.) Prior to January of 2011, Plaintiff sat by a window on the fifth floor due to his
eye problems. (Id. at 111:5–17.) Ditinsky neither approved nor rejected Plaintiff’s request to sit
14
The Russian programmers appear to have received “[r]etention [b]onuses.” (Cox
email to Victoria Mcglynn dated February 1, 2011, annexed to Pl. Opp’n as Ex. 4, Docket Entry
No. 157-4.) Plaintiff provides no basis to conclude that these retention bonuses were the same as
the performance discretionary bonuses.
12
next to a window on the fifth floor. (Id.)
In January of 2011, the OPS Project Team moved from the fifth floor to the nineteenth
floor. (Ditinsky Decl. ¶ 12.) After initially picking his own seat on the nineteenth floor, Plaintiff
was moved to a dark area for two to three weeks. (Pl. Dep. at 130:22–131:22.) Although
Ditinsky informed Plaintiff of the need to move to the dark area, it is unclear who decided the
change in seating. (Id. at 133:6–24.) Bloomberg may have chosen the changed seating. (See
Bloomberg email to Ditinsky dated January 26, 2011, annexed to Ditinsky Decl. as Ex. 1, Docket
Entry No. 145-1.) Ditinsky did not offer Plaintiff any explanation other than that he was the
manager. (Pl. Dep. at 133:6–12.) Without express approval from Ditinsky, Plaintiff returned to
his chosen seat. (Id. at 132:4–133:5.)
Around this time, Defendant denied Plaintiff’s request to reclassify his employment
status from employee to independent contractor. (Pl. Decl. ¶¶ 162–63.) On January 19, 2011,
Plaintiff met with and also emailed Kinyon to request conversion from a W-2 employee to a
1099 independent contractor. (Id. ¶ 158.) The email was forwarded to Ditinsky. (Id. ¶ 159.) On
February 2, 2011, Tenavko granted the request and offered to convert Plaintiff to an independent
contractor. (Id. ¶ 161.) Tenavko revoked the offer a few weeks later. (Id. ¶¶ 163, 200.) Plaintiff
perceived the revocation of the offer to be retaliatory conduct based on his request for
accommodation for his disability.15 Kinyon, a human resource representative, explained by
email that “[a]lthough our executive team along with our legal advisors approved and supported”
the conversion to independent contractor status, “financial advisors” had raised concerns.
(Kinyon email to Plaintiff dated February 18, 2011, annexed to Pl. Opp’n as Ex. 4, Docket Entry
15
Plaintiff also appears to assert that the revocation of the offer of independent
contractor status was racially discriminatory. (See Pl. Opp’n 14.)
13
No. 157-4.) Plaintiff states that Defendant allowed the Russian programmers and others such as
Hastings and Ditinsky to be independent contractors. (Pl. Decl. ¶¶ 158, 200.)
Plaintiff admits that he was not discharged because of his disability. (Pl. Resp. ¶ 103; Pl.
Dep. at 325:25–326:3.)
e. Plaintiff’s termination
On April 27, 2011, Bloomberg informed Cox that the budget for the OPS Project would
be coming to an end. (April 27, 2011 Email, annexed to Decl. of Tom Cox (“Cox Decl.”),
Docket Entry No. 144, as Ex. 4, Docket Entry No. 144-1.) Although Cox requested additional
funding, explaining that he had previously been told “not to worry,” Bloomberg denied the
request. (Cox Decl. ¶¶ 23–25.) By May 19, 2011, the OPS Team had worked through two-thirds
of its year budget, and Bloomberg reiterated that the OPS Project funding was finite. (Id.) On
June 15, 2011, Bloomberg again reiterated the need to adhere to the budget, and Cox suggested
changing “team structure” as a solution. (Id.)
Teknavo decided to terminate two programmers from the OPS Project due to budgetary
constraints. (June 28, 2011 Emails, annexed to Cox Decl. as Exs. 7, 8, Docket Entry No. 144-1.)
After “consult[ing]” Ditinsky, Cox recommended the termination of Plaintiff and Tsarkov
because they had less experience in financial services and “[Defendant] had more confidence in
the [other programmers’] skills.”16 (Cox Decl. ¶ 30; Defendant email dated Apr. 23, 2012 to
NYSDHR, annexed to Pl. Opp’n as Ex. 4, Docket Entry No. 157-4 (asserting that Plaintiff had
been terminated because he had less “development” and “relevant capital markets technology”
16
Plaintiff himself previously acknowledged that LaPiana, who was retained, was treated
more favorably in general because of perceived superior market data skills. (See Plaintiff email
to Keeler dated March 25, 2011 (“[S]ince [LaPiana] claimed to possess some prior Mkt Data
skills he can do almost anything at will.”).)
14
experience); NYSDHR decision dated May 2, 2012, Docket Entry No. 143-4 (finding no pretext
based on reduction in force and relative experience of Plaintiff and LaPiana).) Palmer reviewed
and accepted the recommendation. (Id. ¶ 31.) The decision to terminate Plaintiff and Tsarkov
was made sometime before June 28, 2011. (June 28, 2011 Emails.)
On July 5, 2011, Cox informed Plaintiff of his termination in an in-person meeting. (Pl.
Dep. at 300:8–19.) Cox also terminated Tsarkov on the same day. (Tsarkov release form,
annexed to Cox Decl. as Ex. 11, Docket Entry No. 144-1.)
f. Judge Bulsara’s recommendations
Judge Bulsara recommended that the Court grant Defendant’s motion for summary
judgment as to all claims. (R&R 1.)
i. Title VII claims
1. Discrimination claims
Judge Bulsara recommended that the Court dismiss the Title VII discrimination claim
because Plaintiff had failed to establish an inference of discrimination — the fourth and final
element of the prima facie prong of the McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), three-step burden shifting framework. (R&R 33.) The parties only disputed the third
(adverse employment action) and fourth (inference of discrimination) elements of the prima facie
prong.
As to the third element, Judge Bulsara determined that Plaintiff’s termination and
“reassignment to . . . operational tasks with little or no programming” were adverse employment
actions within the meaning of Title VII. (Id. at 29–30, 33.)
As to Plaintiff’s reassignment, Judge Bulsara found the evidence of differential treatment
insufficient to allow for an inference of discrimination for two reasons: (1) the asserted
15
comparators, aside from Tsarkov and LaPiana, were not similarly situated; and (2) Plaintiff’s
testimony about the differential treatment was too general and conclusory. (Id. at 36–37.) Judge
Bulsara also found remarks made by non-decisionmakers and Plaintiff’s own conclusory
statements of discriminatory animus, without any supporting evidence, insufficient. (Id. at 34,
38.)
As to Plaintiff’s termination, Judge Bulsara found Plaintiff had failed to even allege that
Cox, the decisionmaker, had “made the decision because of, even in part, some animus or
discriminatory motive.” (Id. at 38.) Nor had Plaintiff provided evidence that Cox had been
influenced by others’ discriminatory animus to support a cat’s paw theory of liability. (Id. at 40.)
Judge Bulsara also discounted the assertion of disparate treatment because Tsarkov, a similarly
situated employee outside of Plaintiff’s protected groups, had also been terminated at the same
time. (Id. at 39.) As a result, Judge Bulsara concluded that Plaintiff could not make out a prima
facie case of discrimination.
2. Hostile work environment claim
Judge Bulsara recommended that the Court dismiss Plaintiff’s Title VII hostile
environment claim because the incidents of discrimination were neither sufficiently severe nor
pervasive to be considered objectively abusive. Although acknowledging that two remarks by
Plaintiff’s co-workers were “racist” and “extremely offensive,” Judge Bulsara found the
comments insufficient to withstand summary judgment as they were made by co-workers rather
than supervisors, and were isolated incidents. (Id. at 43–44.) Judge Bulsara reasoned that the
comments were not “seized upon or repeated by a supervisor, accompanied by a physical threat
or threat of an adverse employment action, or had an identified impact on [Plaintiff’s] work
assignments or conditions.” (Id. at 44.) Judge Bulsara also discounted the other asserted
16
discriminatory incidents as Plaintiff could not recall the “exact words” used in those cases. (Id.
at 45.) Based on all the circumstances, Judge Bulsara determined that “a reasonable jury could
not determine . . . that [Plaintiff’s] work environment was objectively hostile.” (Id. at 43.)
3. Retaliation
Judge Bulsara recommended that the Court dismiss Plaintiff’s Title VII retaliation claim
because Plaintiff had failed to establish a causal connection between the asserted protected
activities and his termination — the fourth and final element of the prima facie prong of the
McDonnell Douglas framework. (Id. at 51.) As an initial matter, Judge Bulsara determined that
only two of Plaintiff’s four complaints — informal complaints made on November of 2010 and
March 22, 2011 — constituted protected activity within the meaning of Title VII.17 (Id. at 47–
49.) In addressing the November of 2010 complaint, Judge Bulsara determined that Plaintiff
failed to provide either direct evidence of discriminatory animus or indirect evidence in the form
of temporal proximity. As to the March 22, 2011 complaint, Judge Bulsara found no causal
connection because “nothing in the record” suggested that Cox was aware of the grievance. (Id.
at 53.) Judge Bulsara therefore recommended that the Court grant summary judgment as to the
Title VII retaliation claim.
ii. ADA claim
1. Discrimination
Judge Bulsara recommended that the Court dismiss Plaintiff’s ADA discrimination claim
17
Judge Bulsara found that the other two complaints — informal complaints made on
May 23, 2011 and July 1, 2011 — did not sufficiently specify that Plaintiff was “complaining
about race or other prohibited discrimination.” (R&R at 49.) The Court notes that Judge Bulsara
appears to have mistakenly dated the July 1, 2011 complaint as one made on June 28, 2011.
Although the incident occurred on June 28, 2011, the complaint was made on July 1, 2011. (See
also Pl. Obj. to R&R (“Pl. Obj.”) 6, Docket Entry No. 170 (noting that there was no complaint
made on June 28, 2011).)
17
because Plaintiff failed to establish a prima facie claim for failure to accommodate. (Id. at 55.)
As an initial matter, Judge Bulsara found that the evidence only supported that Plaintiff suffered
from astigmatism but not glaucoma as asserted. (Id. at 17 n.8–9.) Irrespective of Plaintiff’s
specific ailments, and their statuses as disabilities within the meaning of the ADA, Judge Bulsara
determined that Defendant had provided reasonable accommodations in the form of a relocation
near a window. (Id. at 55.) Judge Bulsara found that Plaintiff had neither identified any other
accommodations that Defendant failed to provide nor provided evidence that the delay in the
move to a window location was caused by discriminatory intent, as opposed to mere negligence.
(Id. at 56.)
2. Retaliation
Judge Bulsara recommended that the Court dismiss Plaintiff’s ADA retaliation claim
because Plaintiff failed to establish a causal connection between the requests for accommodation
and the denial of independent contractor status. (Id. at 57.) Judge Bulsara found no evidence to
conclude that Cox, Kinyon, Palmer, or McGlyn, the potential decision-makers of employment
status, were aware of Plaintiff’s complaints and requests for accommodation. (Id.) Accordingly,
Judge Bulsara determined that the Court should grant summary judgment as to Plaintiff’s ADA
claim for lack of causation.
g. Plaintiff’s objections to the R&R
Plaintiff initially filed a sixty-five page objection to the R&R. By order dated May 17,
2018, the Court granted Plaintiff permission to file a ten page, double-spaced reply to
Defendant’s response to his objections. (Docket Order dated May 17, 2018.) On May 29, 2018,
Plaintiff filed a seventeen-page, double-spaced reply, attaching a forty-three page “Affirmation”
and sixty-one page “Affidavit of Proof of Tampering.” (Pl. Reply to Def. Resp. (“Pl. Reply”),
18
Docket Entry No. 183; Pl. Affirmation, annexed to Pl. Reply as Ex. 1, Docket Entry No. 183-1;
Pl. Affidavit of Proof of Tampering, annexed to Pl. Reply as Ex. 2, Docket Entry No. 183-2.)
The Court only considers the first ten pages of the reply in light of Plaintiff’s disregard of
the specific instructions provided in the March 17, 2018 Order. Despite proceeding pro se,
Plaintiff is aware and has previously been advised of the proper procedures for seeking an
extension or modification to the Court’s rules and orders. (See Pl. Letter dated July 17, 2017,
Docket Entry No. 139 (requesting permission to modify opposition brief to fit the Court’s page
limit)); see also Parker v. DeBuono, No. 98-CV-5765, 2000 WL 223841, at *1 (S.D.N.Y. Feb.
25, 2000) (“Even though pro se litigants are generally offered wider latitude than those
represented by an attorney, they are still required to follow the Federal Rules of Civil Procedure
and direct court orders.” (citations omitted)), aff’d sub nom. Parker v. Com’r DeBuono, 242 F.3d
366 (2d Cir. 2000). The Court therefore only considers Plaintiff’s initial summary judgment
submissions, the record, the original objections to the R&R, and the first ten pages of the reply
objections for purposes of this Memorandum and Order.
i. Plaintiff’s Title VII discrimination/retaliation claims
Plaintiff argues that Judge Bulsara erred in analyzing: (1) the fourth (inference of
discrimination) element of the prima facie prong of McDonnell Douglas burden-shifting
framework as to the Title VII discrimination claim; and (2) first (protected activity) and fourth
(inference of retaliation) elements of the prima facie prong for the Title VII retaliation claim.18
18
Plaintiff also appears to argue that exclusion from meetings could be considered
adverse employment actions for purposes of a Title VII retaliation claim. (See Pl. Obj. 63.)
Judge Bulsara, however, did not find otherwise. Rather, Judge Bulsara explained that Plaintiff
had not asserted a retaliation claim based on exclusion from meetings in his Complaint. (R&R
50 n.17; Compl. ¶¶ 16, 26, 32–33.) As discussed infra, the Court, however, considers Plaintiff’s
retaliation claim based on diminished duties following the March 22, 2011 incident as Judge
Bulsara ultimately did in the R&R. (See R&R n.17; see also Pl. Obj. 5, 10–11, 13–14.)
19
(Pl. Obj. 17.)
1. Protected activity
Plaintiff argues that Judge Bulsara erred in finding that the July 1, 2011 complaint was
not a protected activity for purposes of a Title VII retaliation claim. (Pl. Obj. 4–5, 8, 29–30, 37,
52, 59.) Plaintiff also disputes Judge Bulsara’s finding that the decision to terminate him had
been made on June 28, 2011, prior to his July 1, 2011 complaint. (Id. at 4–5, 49, 59.)
2. Inference of discrimination/retaliation
Plaintiff argues that Judge Bulsara erred in finding that he failed to establish an inference
of discrimination and retaliation as to his Title VII claims. (Pl. Obj. 17.)
Regarding his discrimination claim, Plaintiff argues that Judge Bulsara did not adequately
consider the proffered evidence of disparate treatment of similarly situated employees. (Id. at 4,
21.) Plaintiff appears to argue both that Judge Bulsara erred in limiting the comparators to
Tsarkov and LaPiana, (id. at 5, 21), and in finding that there was insufficient evidence of
differential treatment, (id. at 4, 22, 24). Plaintiff contends that in addition to Tsarkov and
LaPiana, Nachayev and the ten Russian programmers should all be considered similarly situated
employees, taking into consideration, in particular, their shared skillset, work project,
supervisors, and disciplinary policies. (Id. at 21.) Compared to these other programmers,
Plaintiff asserts that he was treated with much “closer scrutiny,” and subject to “repeated
interruptions of his work . . . , screening from meetings, humiliations, denied timely
programming resources,” and burdened with “operational tasks.” (Id. at 24.)
As to his retaliation claim, Plaintiff argues that Judge Bulsara did not properly consider
the timeline of events leading to his termination. (Id. at 27, 37–44.) Plaintiff contends that he
was required to train ten new Russian employees unlike his white co-workers. (Id. at 28.) On
20
July 1, 2011, Plaintiff complained about having to train the new employees because he believed
the work “deprived . . . his personal freedom.” (Id. at 29.) He was terminated “the next business
day.” (Id.) Plaintiff therefore argues there is sufficient temporal proximity to infer retaliation.
(Id. at 4, 29.)
Although unclear, Plaintiff also appears to argue that discrimination or retaliation should
be inferred from alleged inconsistencies in the rationale for his termination. (Id. at 30.) Plaintiff
contends that the OPS project began on September 1, 2010, and therefore the project must have
been extended in February of 2011. (Id.) In addition, Plaintiff asserts that the evidence of the
OPS project budget submitted by Defendant, and discussions regarding his termination prior to
July 1, 2011, are fraudulent and should not have been relied upon by Judge Bulsara. (See id. at
35–37, 48, 51–52, 54.)
ii. Title VII hostile environment claim
Plaintiff argues that Judge Bulsara erred by not finding the March 22, 2011 incident —
LaPiana’s racially-charged outburst during a meeting — sufficiently severe to constitute a hostile
work environment. (Id. at 55–57.) Plaintiff contends that the March 22, 2011 incident was made
even more severe because Ditinsky stood up for LaPiana. (Id. at 56–57.)
iii. ADA claims
Plaintiff argues that Judge Bulsara erred by failing to credit his glaucoma condition. (Id.
at 4.) In addition, Plaintiff appears to argue that Judge Bulsara should have considered Dr.
Rajan’s deposition testimony for purposes of understanding the “emotion[al] stress and mental
anguish” caused by Defendant’s actions. (Id. at 61.) Plaintiff does not challenge any other
aspect of Judge Bulsara’s factual findings and legal conclusions as to the ADA claims.
21
h. Defendant’s responses
Defendant’s responses to Plaintiff’s objections largely repeat the findings and
conclusions of the R&R and request that the Court adopt Judge Bulsara’s recommendations in
their entirety.19 Defendant also requests that the Court ignore new arguments that Plaintiff failed
to raise before Judge Bulsara. (Def. Resp. 7–8.) In addition, Defendant argues that the
deferential clear error standard of review should apply to most of the R&R because Plaintiff’s
objections are conclusory, general arguments, or merely repeats those already addressed by
Judge Bulsara. (Id. at 16.)
II. Discussion
a. Standards of review
i. Report and recommendation
A district court reviewing a magistrate judge’s recommended ruling “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C). When a party submits a timely objection to a report and
recommendation, the district court reviews de novo the parts of the report and recommendation
19
In its responses to Plaintiff’s objections to the R&R, Defendant requested that the
R&R be adopted in its entirety. (See Def. Resp. 4, 6, 19.) However, in a footnote, Defendant
asserted that it “maintains that Plaintiff’s assignment did not fall outside the scope of his
position, and, therefore, do[es] not constitute an adverse employment action.” (Id. at 6 n.3.)
The Court disregards this contradictory statement. Defendant did not properly object to
Judge Bulsara’s finding, and did not request that the Court adopt the R&R only as to the portions
to which it did not object.
Defendant’s argument is also unpersuasive. A senior associate at a firm, for example,
may have been subject to an “adverse employment action” if she suddenly found herself doing
only document review. Even if discovery and document review is within the senior associate’s
“scope of work,” a sudden reassignment to menial tasks alone can be an adverse employment
action. Furthermore, even if other similarly situated associates suffered the same fate, the
reasons for the diminished duties may differ for each attorney. Cf. Boise v. Boufford, 121 F.
App’x 890, 892 (2d Cir. 2005) (finding no adverse employment action where the evidence did
not demonstrate plaintiff had been assigned comparatively worse assignments than his peers).
22
to which the party objected. Id.; see also United States v. Romano, 794 F.3d 317, 340 (2d Cir.
2015). The district court may adopt those portions of the recommended ruling to which no
timely objections have been made, provided no clear error is apparent from the face of the
record. John Hancock Life Ins. Co. v. Neuman, No. 15-CV-1358, 2015 WL 7459920, at *1
(E.D.N.Y. Nov. 24, 2015). The clear error standard also applies when a party makes only
conclusory or general objections. Benitez v. Parmer, 654 F. App’x 502, 503–04 (2d Cir. 2016)
(holding “general objection[s] [to be] insufficient to obtain de novo review by [a] district court”
(citations omitted)); see Fed. R. Civ. P. 72(b)(2) (“[A] party may serve and file specific written
objections to the [magistrate judge’s] proposed findings and recommendations.” (emphasis
added)); see also Colvin v. Berryhill, 734 F. App’x 756, 758 (2d Cir. 2018) (“Merely referring the
court to previously filed papers or arguments does not constitute an adequate objection under . . .
Fed. R. Civ. P. 72(b).” (quoting Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir.
2002))).
In the Second Circuit, it is also “well-established . . . that a district court generally will
not consider new arguments raised for the first time in objections to a magistrate judge’s report
and recommendation that could have been raised before the magistrate but were not.” Pierre v.
Air Serv Sec., No. 14-CV-5915, 2016 WL 5136256, at *11 (E.D.N.Y. Sept. 21, 2016) (citations
omitted), appeal dismissed sub nom. Pierre v. Airserv Sec., No. 16-3370, 2017 WL 4541336 (2d
Cir. Jan. 5, 2017); see also McEachin v. Walker, 147 F. App’x 223, 224 (2d Cir. 2005) (holding it
was not an abuse of discretion to ignore evidence submitted after the report and
recommendation); Walker v. Stinson, No. 99-CV-0054, 2000 WL 232295, at *2 (2d Cir. 2000)
(holding that “the district court did not abuse its discretion in refusing to consider” a legal
argument that defendants “failed to raise” before the magistrate judge). However, this “judge-
23
made rule . . . should not automatically be applied without regard to the circumstances of a
particular case.” Greathouse v. JHS Sec. Inc., 784 F.3d 105, 123 (2d Cir. 2015). Courts must
ensure that the rule only applies where the litigants themselves are responsible for the waiver of
any arguments. See id. (finding application of rule improper where district court “unintentionally
led [plaintiff] astray” as to the need for certain arguments).
In contrast, district courts should apply de novo review to arguments previously raised
before the magistrate judge. See Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011) (holding
application of clear error standard to be “not correct”). Although many district courts in this
circuit apply clear error to “same” arguments, the Second Circuit has never endorsed this judgemade rule and has recently questioned its viability. See Moss v. Colvin, 845 F.3d 516, 520 (2d
Cir. 2017) (“[W]e are skeptical that clear error review would be appropriate in this instance,
where arguably ‘the only way for [petitioner] to raise . . . arguments [on that point] [was] to
reiterate them.’” (citation omitted)). “[B]y definition,” appeal or “review” involves a
“rehash[ing]” of arguments previously asserted. Brown, 649 F.3d at 195; see also Brian J. Levy,
De Novo Denied: District Courts’ Reliance on Camardo is Clear Error, 82 FORDHAM L. REV.
RES 8 GESTAE (2013) (arguing that de novo review should be applied to properly raised “same”
arguments). De novo review therefore applies to non-conclusory, specific objections raising
arguments previously made to the magistrate judge.
ii. Summary judgment
Summary judgment is proper only when, construing the evidence in the light most
favorable to the non-movant, “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); Wandering Dago, Inc. v.
Destito, 879 F.3d 20, 30 (2d Cir. 2018); see also Cortes v. MTA NYC Transit, 802 F.3d 226, 230
24
(2d Cir. 2015). The role of the court “is not to resolve disputed questions of fact but only to
determine whether, as to any material issue, a genuine factual dispute exists.” Rogoz v. City of
Hartford, 796 F.3d 236, 245 (2d Cir. 2015) (first quoting Kaytor v. Elec. Boat Corp., 609 F.3d
537, 545 (2d Cir. 2010); and then citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50
(1986)). A genuine issue of fact exists when there is sufficient “evidence on which the jury could
reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. The “mere existence of a scintilla
of evidence” is not sufficient to defeat summary judgment. Id. The court’s function is to decide
“whether, after resolving all ambiguities and drawing all inferences in favor of the nonmoving
party, a rational juror could find in favor of that party.” Pinto v. Allstate Ins. Co., 221 F.3d 394,
398 (2d Cir. 2000).
b. Unopposed recommendations
i. ADA claim
Although Plaintiff objects to Judge Bulsara’s decision not to credit his contention that he
suffers from glaucoma,20 Judge Bulsara did not rely on that finding in recommending summary
judgment as to the ADA claims. Because Plaintiff fails to object to any factual findings or legal
conclusions actually relied upon in recommending summary judgment, the Court reviews the
ADA claims recommendations for clear error. Finding none, the Court adopts Judge Bulsara’s
20
Although unclear from the record, Plaintiff may have glaucoma. (See Dep. of
Theodora Petratos (“Petratos Dep.”) 32:15–18, annexed to Decl. of Jennifer Courtian (“Courtian
Decl.”), Docket Entry No. 143, as Ex. 6, Docket Entry No. 143-3 (“Looks like the biggest thing
they were following him for was the glaucoma and eye pressure.”).) Plaintiff, however, only
claimed disability based on his astigmatism in the Complaint. (See Compl. ¶¶ 7, 28.) Moreover,
Plaintiff “chose a window seat because it provided adequate lighting for [his] astigmatism, a
need he communicated to Ditinsky.” (Id. ¶ 28 (emphasis added)); see also Ariel (UK) Ltd. v.
Reuters Grp., PLC, 277 F. App’x 43, 45 (2d Cir. 2008) (“[A]llegations in the complaint are
judicial admissions that bind a party ‘throughout the course of the proceeding’” (quoting Official
Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 167
(2d Cir. 2003))).
25
findings and conclusions as to Plaintiff’s ADA discrimination and retaliation claims and
dismisses the claims.
ii. Title VI discrimination and retaliation claim
Similarly, the Court applies clear error to the unchallenged elements of the prima facie
prong of the McDonnell Douglas burden-shifting framework for the Title VII discrimination and
retaliation claims: (1) first three elements (member of a protected class; qualified; adverse
employment action) of the discrimination claim; and (2) second and third elements (knowledge
of protected activity; adverse employment action) of the retaliation claim.
Having reviewed these recommendations for clear error, and finding none, the Court
adopts Judge Bulsara’s findings and conclusions as to these elements. For purposes of a Title
VII discrimination claim, Plaintiff is a member of protected classes, was qualified for his
position, and suffered adverse employment actions of diminished work duties and termination.
For purposes of a Title VII retaliation claim, Plaintiff has demonstrated sufficient general
corporate knowledge of his complaints for purposes of element two (knowledge of protected
activity) and suffered the adverse employment action of termination.
The Court applies de novo review to the remaining portions of the R&R, but does not
consider arguments based on new evidence not previously submitted to Judge Bulsara. See
Kazolias v. IBEWLU 363, 806 F.3d 45, 54 (2d Cir. 2015) (“The district court ha[s] discretion to
consider evidence that ha[s] not been submitted to the Magistrate Judge.” (quoting Hynes v.
Squillance, 143 F.3d 653, 656 (2d Cir. 1998)); McEachin, 147 F. App’x at 224 (holding district
court “did not abuse its discretion in refusing to consider the late-submitted letters” following
report and recommendation (citing Pan Am. World Airways, Inc. v. Int’l Bhd. of Teamsters, 894
F.2d 36, 40 n.3 (2d Cir. 1990))).
26
c. Title VII discrimination claim
Title VII discrimination claims are analyzed under the three-stage, burden-shifting
framework established by the Supreme Court in McDonnell Douglas. See Tillery v. New York
State Office of Alcoholism & Substance Abuse Servs., 739 F. App’x 23, 25 (2d Cir. 2018);
Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 136 (2d Cir. 2016). Under the
framework, a plaintiff must establish a prima facie case of discrimination. Tillery, 739 F. App’x
at 25. If the plaintiff meets this “minimal” burden, Holcomb v. Iona College, 521 F.3d 130, 139
(2d Cir. 2008), a “temporary presumption” of discrimination arises, and the burden shifts to the
defendant-employer to articulate a legitimate, nondiscriminatory reason for the challenged
conduct, Vega v. Hempstead Union Free School District, 801 F.3d 72, 84 (2d Cir. 2015)
(quoting Littlejohn v. City of New York, 795 F.3d 297, 307, 311 (2d Cir. 2015)). If the defendantemployer articulates such a reason, the burden shifts back to the plaintiff-employee to show that
the defendant-employer’s reason was pretext or otherwise “more likely than not based in whole
or in part on discrimination.” Tillery, 739 F. App’x at 25 (citing Aulicino v. N.Y.C. Dep’t of
Homeless Servs., 580 F.3d 73, 80 (2d Cir. 2009))).
i. Plaintiff fails to establish a prima facie case of discrimination
To establish a prima facie case of discrimination, a plaintiff must show that: (1) he is a
member of a protected class; (2) he is qualified for his position; (3) he suffered an adverse
employment action; and (4) the circumstances give rise to an inference of discrimination. Vega,
801 F.3d at 83.
The Court only considers whether Plaintiff’s termination and diminished responsibilities
occurred under circumstances giving rise to an inference of discrimination. Only the third and
fourth elements of the framework were originally disputed. The parties now also agree that
Plaintiff’s termination and diminished responsibilities constitute adverse employment actions.
27
As discussed earlier, the Court found no clear error as to Judge Bulsara’s determination that
Plaintiff had failed to adequately establish other forms of adverse actions.
Inference of discrimination “is a ‘flexible [standard] that can be satisfied differently in
differing factual scenarios.’” Saji v. Nassau Univ. Med. Ctr., 724 F. App’x 11, 17 (2d Cir. 2018)
(quoting Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996)). “No one
particular type of proof is required to show that Plaintiff’s termination occurred under
circumstances giving rise to an inference of discrimination.” Moore v. Kingsbrook Jewish Med.
Ctr., No. 11-CV-3625, 2013 WL 3968748, at *6 (E.D.N.Y. July 30, 2013) (citations omitted);
Sanderson v. N.Y. State Elec. & Gas Corp., 560 F. App’x 88, 93 (2d Cir. 2014) (“[M]any types of
evidence may support an inference of discrimination.” (citation omitted)). An inference of
discrimination can be drawn from circumstances such as “the employer’s criticism of the
plaintiff’s performance in . . . degrading terms; or its invidious comments about others in the
employee’s protected group; or the more favorable treatment of employees not in the protected
group; or the sequence of events leading to the plaintiff’s [adverse employment action],” Abdu–
Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001) (citation omitted), or by
“showing that an employer treated [an employee] less favorably than a similarly situated
employee outside his protected group,” Abdul-Hakeem v. Parkinson, 523 F. App’x 19, 20 (2d Cir.
2013) (quoting Ruiz v. Cty. of Rockland, 609 F.3d 486, 493 (2d Cir. 2010)). “In determining
whether a genuine issue of material fact exists for trial,” a court is obliged to “carefully
distinguish between evidence that allows for a reasonable inference of discrimination and
evidence that gives rise to mere speculation and conjecture.” Woodman v. WWOR–TV, Inc., 411
F.3d 69, 75 (2d Cir. 2005) (internal quotation marks omitted) (quoting Bickerstaff v. Vassar Coll.,
196 F.3d 435, 448 (2d Cir. 1999)).
28
1. Claim based on alleged diminished duties
Plaintiff contends that discriminatory intent may be demonstrated by Tsarkov’s and
LaPiana’s remarks, and disparate treatment.
A. Discriminatory remarks
In determining the probative value of a remark, courts consider four factors: “(1) who
made the remark . . . ; (2) when the remark was made in relation to the employment decision at
issue; (3) the content of the remark . . . ; and (4) the context in which the remark was made . . . .”
Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir. 2010).
Plaintiff relies almost exclusively on remarks by co-workers with little probative value.
To demonstrate discriminatory intent, Plaintiff points to racist remarks by Tsarkov and LaPiana,
his co-workers, in September 9, 2010 and March 22, 2011 respectively. Although those
statements are undoubtedly racist,21 Plaintiff admits that Ditinsky, as project manager, was the
one responsible for his diminished responsibilities. Plaintiff fails to provide evidence that
LaPiana or Tsarkov had a role in the decisionmaking process or “considerable influence” over
Ditinsky. See Joseph v. Owens & Minor Distrib., Inc., 5 F. Supp. 3d 295, 310–11 (E.D.N.Y.
2014), aff’d, 594 F. App’x 29 (2d Cir. 2015).
As to Ditinsky’s alleged discriminatory motive, Plaintiff only offers speculation in lieu of
evidence. Throughout his deposition, Plaintiff admitted that he was “speculating” as to
Ditinsky’s intent based on the diminished opportunities themselves. (See, e.g., Pl. Dep. at
206:13–25, 214:15–19.) Plaintiff’s statements in his declaration also fail to support any
inference of discrimination. Rather than relying on evidence, Plaintiff assumes discriminatory
21
See supra 5 (“[W]hen immigrants first encounter African Americans, you cannot help
but conclude that they are not smart.”); supra 7 (“[P]eople of your type are stupid so you should
listen.”).
29
intent in his declaration. (See, e.g., Pl. Decl. ¶ 33 (“Ditinsky was relentless in his attempts to
marginalize [Plaintiff] to the fringe of the OPS project by his racist action to prevent [Plaintiff]
from doing a presentation of his own work . . . before Bloomberg[]”); id. ¶ 38 (“Upon
information and belief, Ditinsky promoted and condoned workplace violence and verbal abuse
against me through his agent and co-worker LaPiana with the explicit purpose to inflict
emotional distress and mental anguish . . . .”); id. ¶ 43 (“LaPiana joined the OPS project team
with the direct intent to harm me by executing Ditinsky[’s] hidden animosity and deep-seated
racial bias against me in order to evict me from the OPS project.”).) At times, Plaintiff even
relied on his own unsupported beliefs that Ditinsky must be discriminating against him due to
Ditinsky’s upbringing under “Lenin-Stalin authoritarian ideology.” (Pl. Opp’n 19; Pl. Decl. ¶ 43
(“This was the first sign of the ill-effect of Stalinism”).) These “conclusory statements [and]
mere allegations . . . are not enough to defeat a motion for summary judgment.” Saji, 724 F.
App’x at 17.
B. Disparate treatment
Plaintiff contends that other members of the OPS project team, LaPiana and Tsarkov in
particular, are similarly situated employees who Ditinsky treated more favorably. (Pl. Opp’n 18.)
Plaintiff asserts that he was given “different and undesirable work assignments and less complex
tasks” in comparison to LaPiana and Tsarkov. (Id.)
An inference of discrimination may be established by evidence of “more favorable
treatment of employees not in the protected group.” Saji, 724 F. App’x at 17 (quoting AbduBrisson, 239 F.3d at 468). “To do so, the plaintiff must show that the comparators in question
were similarly situated to the plaintiff in all material respects.” Id. (citations and internal
quotation marks omitted). “Although the question of whether two individuals were
30
‘similarly situated’ for these purposes is often a question for the jury, ‘a court can properly grant
summary judgment where it is clear that no reasonable jury could find the similarly situated
prong met.’” Id. (quoting Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 n.2 (2d Cir.
2001)).
Plaintiff fails to provide any evidence that LaPiana and Tsarkov were treated more
favorably, even assuming they are similarly situated employees.22 Although Plaintiff asserts that
LaPiana and Tsarkov were given better assignments, there is no evidence to support his
assumptions that they were.23 Other than conclusory, speculative assertions, Plaintiff fails to
provide evidence to compare and contrast the type and scope of work assigned to similarly
situated employees. Plaintiff cannot rely solely on conclusory, speculative allegations to
withstand summary judgment.24 See Fahrenkrug v. Verizon Servs. Corp., 652 F. App’x 54, 57
22
Plaintiff also fails to demonstrate that the programmers other than LaPiana and
Tsarkov are similarly situated employees. Khupchenko’s primary duties did not involve
programming on the OPS Project. (See Pl. Decl. ¶ 46.) The tasks and job responsibilities of the
Russian Programmers are also unclear. (Pl. Dep. at 285:6–286:2); see also Campbell v. Nat’l
Fuel Gas Distrib. Corp., 723 F. App’x 74, 76 (2d Cir. 2018) (“[C]omprator[s] must be similarly
situated to the plaintiff in all material respects.” (citation omitted)).
23
Plaintiff based his assumption on “observations” that other members of the OPS team
were “doing something technical regarding programming” the “majority” of the time. (Pl. Dep.
at 179:17–20.) However, Plaintiff acknowledged during his deposition that he did not know the
actual type and scope of work assigned to LaPiana and Tsarkov. (Id. at 179:24–11.) Plaintiff
also stated that at least some of the work was performed outside the office, beyond his
observation. (See id. at 179:17–23 (“[T]hey would do it at home or whatever or their desks, it
varies.”).)
24
The other proffered disparate treatment evidence, (see supra pp. 8–12), fails to “raise
an inference of discrimination because they are either (1) purely speculative; (2) unsupported by
facts in the record; or (3) factually unrelated” to the decisions to assign work and terminate
Plaintiff. Johnson v. St. Luke’s Hosp., 307 F. App’x 670, 672–73 (3d Cir. 2009); Shah v. Gen.
Elec. Co., 816 F.2d 264, 271 (6th Cir. 1987) (requiring disparate treatment evidence to have “a
close enough nexus to the discriminatory acts alleged as a basis for recovery”); King v. Red Roof
Inn, No. 05-CV-124, 2006 WL 572710, at *7 (W.D. Mich. Mar. 8, 2006) (“[A] plaintiff alleging
31
(2d Cir. 2016) (finding insufficient disparate treatment evidence where the plaintiff “did not
submit any evidence pertaining to her male peers’ job duties, assignments, bonuses, or salary
increases”). The Court therefore grants Defendant summary judgment as to this Title VII
discrimination claim.25 See Tolbert v. Smith, 790 F.3d 427, 437 n.7 (2d Cir. 2015) (“courts
must ‘carefully distinguish between evidence that allows for a reasonable inference of
wrongful termination cannot meet her burden of establishing disparate treatment by pointing to
an event unrelated to the termination decision” (citing Shah, 816 F.2d at 271)); see also Godfrey
v. Ethan Allen, Inc., 113 F.3d 1229 (2d Cir. 1997) (“Stray remarks . . . by decisionmakers
unrelated to the decision process are rarely given great weight.” (emphasis added) (quoting
Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 543 (3d Cir. 1992))). And although
“other allegations of discrimination, even if . . . not independently . . . adverse employment
actions, [may] provide ‘relevant background evidence’ by shedding light on [the d]efendant’s
motivation,” Plaintiff’s proffered evidence is insufficient to support an inference of
discrimination. Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 88 (2d Cir. 2015). The
only non-conclusory evidence is (1) Plaintiff’s exclusion from a handful of meetings and (2) the
requirement that Plaintiff provide his work in hard copy. Plaintiff, however, fails to provide any
basis to conclude that this “background evidence” is the product of racial animus other than the
reality that he was the only African American employee. See Norton v. Sam’s Club, 145 F.3d
114, 119 (2d Cir. 1998) (“It is not infrequent that people who are dismissed are fired by managers
who differ from them in some respect . . . . If that fact, without more, could suffice to support the
finding of discrimination . . . , it would be hard to imagine a termination that could not be
attributed to discrimination.”); Mattison v. Potter, 515 F. Supp. 2d 356, 374 (W.D.N.Y. 2007)
(holding that mere fact that the plaintiff, the only female employee, was harassed by supervisors
was “simply too speculative to warrant trial” for hostile environment claim). Consequently,
Plaintiff effectively asks this Court to find sufficient a weak inference (that the exclusion from
meetings and requirement of hard copy were racially motivated) built upon another weak
inference (that these allegedly racially motivated actions shed light on Ditinsky’s motivation for
reassigning Plaintiff). The Court declines to do so. Even in Vega, the “background evidence”
was much more closely linked to the adverse employment action than in this action. See Vega,
801 F.3d at 89 (holding placement of “University of Puerto Rico” banner outside employee’s
classroom and attempt to transfer employee to Hispanic principal’s school bolstered claim that
plaintiff was assigned to larger percentage of Spanish-speaking students because of his
ethnicity).
25
The Court disagrees with the R&R to the extent it suggests that non-conclusory, nonspeculative, consistent, uncorroborated, sworn testimony cannot create a genuine issue of fact.
(See R&R 38); Danzer v. Norden Sys., Inc., 151 F.3d 50, 57 (2d Cir. 1998) (“There is nothing in
[Rule 56] to suggest that nonmovants’ affidavits alone cannot-as a matter of law-suffice to
defend against a motion for summary judgment.”).
32
discrimination and evidence that gives rise to mere speculation and conjecture’” (quoting
Bickerstaff, 196 F.3d at 448)).
2. Claim based on termination
A. Animus of decisionmakers
Plaintiff fails to provide any evidence that Cox, the asserted-decisionmaker and the
individual who recommended termination to Palmer, the ultimate-decisionmaker, was motivated
by any discriminatory intent.26 To the contrary, Plaintiff assumes discriminatory animus based
on the adverse employment action itself. As with Ditinsky, Plaintiff offers only conclusory
allegations of Cox’s supposed discriminatory intent. (See, e.g., Pl. Decl. ¶ 29 (“Cox fired
Plaintiff both in retaliation for having complained about illegal discrimination and because of
Cox’s own racial animus[] against me . . . .”); id. ¶ 36 (“Cox was aware of Ditinsky’s intention to
destroy my reputation . . . and to transform the OPS project workforce into homogeneously white
Russian Programmers.”).) Plaintiff also fails to provide sufficient evidence that Ditinsky’s
recommendation to Cox was the product of any discriminatory animus.27 Nor does Plaintiff
26
(Pl. Resp. ¶ 38 (“Plaintiff believe[s] that Cox was the decisionmaker.”); (Def.
Statement of Material Facts Pursuant to Local Rule 56.1 (“Def. 56.1”) ¶ 23, Docket Entry No.
142 (affirming that Cox had responsibility for making recommendations regarding
terminations).)
27
Plaintiff also claimed that Ditinsky never provided a negative evaluation of his work
to Cox until a July 2, 2011 email that was critical of his work performance and demeanor. (See
Pl. Opp’n 69; Cox Dep. at 150:5–12; see also id. at 152:4–5 (“I would also like to just comment
this is not a performance review.”).) That “evaluation,” however, was submitted after the
termination decision and is only relevant in so far as it provides evidence of Ditinsky’s alleged
overall discriminatory animus and its impact on the decisionmaking process. In that regard,
Plaintiff offers only speculation and evidence of subjective disagreement over the quality of his
work, relying on conclusory assertions of his superiority over his co-workers. (See Pl. Opp’n
48–49, 68–69); Francis v. Hartford Bd. of Educ., --- F’App’x ---, ---, 2019 WL 211503, at *2 (2d
Cir. Jan. 16, 2019) (holding plaintiff “must provide evidence beyond speculation that the
negative evaluations were unsupported”). Although Plaintiff now seeks to attach significance to
33
provide any evidence to suggest that Cox’s decision was somehow influenced by LaPiana or
Tsarkov, the only individuals for whom there is evidence of discriminatory animus.28 See
Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 272 (2d Cir. 2016) (“[A] Title VII
plaintiff is entitled to succeed, ‘even absent evidence of illegitimate bias on the part of the
ultimate decision maker, so long as the individual shown to have the impermissible bias played a
meaningful role in the [decisionmaking] process.’” (emphasis added and citations omitted)).
B. Disparate treatment
Plaintiff offers no additional evidence of disparate treatment specific to his termination.
Any argument of disparate treatment for his termination is also undercut by the contemporaneous
termination of Tsarkov, a similarly situated employee not within Plaintiff’s protected classes.
See Martinez v. N.Y.C. Transit Auth., 672 F. App’x 68, 70 (2d Cir. 2016) (explaining “lack of
disparate impact on older employees strongly suggests that age was not a factor in [p]laintiffs’
Ditinisky’s failure to mention the March 22, 2011 incident in his letter, he himself acknowledged
that Ditinisky may not have been aware of the incident (at least its full extent). (See Pl. Resp. ¶
87.) Plaintiff also admittedly refused to speak at the meeting immediately following the incident,
causing Ditinsky to cancel the meeting. (See id. ¶ 87; Pl. Dep. at 274:9–21); see also supra n.24
(describing why Plaintiff’s other proffered evidence is insufficient).) Without more, the failure
to mention the March 22, 2011 incident is not probative, and little more than speculation.
28
The Court departs slightly from Judge Bulsara’s analysis in the R&R regarding the
cat’s paw theory of liability discussion. The cat’s paw theory is applicable to co-workers,
immediate supervisors, and other subordinates that influence the decisionmaker. See Staub v.
Proctor Hosp., 562 U.S. 411, 421 (2011); Nagle v. Marron, 663 F.3d 100, 117–18 (2d Cir. 2011).
Judge Bulsara found the cat’s paw theory inapplicable because there was no indication that Cox
had taken account of anything LaPiana or Tsarkov had said or believed in terminating Plaintiff.
The cat’s paw theory, however, applies to an employer’s negligent adoption of any of its
subordinates’ discriminatory motive. See Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d
267, 272 (2d Cir. 2016) (adopting cat’s paw theory for Title VII retaliation claims). Moreover,
“longstanding precedent” in the Second Circuit in the “employment-discrimination context”
allows imputation to the employer any improper motive of any individual having a “meaningful
role” in the decisionmaking process. See id. The Court therefore considers Ditinsky’s influence
on Cox’s decisionmaking, and Cox’s influence on Palmer’s final decision.
34
termination” in assessing ADEA claim); McDonnell v. Schindler Elevator Corp., 618 F. App’x
697, 700 (2d Cir. 2015) (finding disability disparate treatment evidence to be “undermin[ed]”
because other recently laid off workers included similarly situated employees who were not
disabled)); see also Martinez, 672 F. App’x at 71 (holding work “redistribut[ion] among existing
employees” precluded inference of discrimination based on theory that plaintiffs were
“replace[d]” by employees from non-protected classes).
The Court therefore grants Defendant summary judgment as to the Title VII termination
discrimination claim based on Plaintiff’s failure to establish a prima facie case of discrimination.
In the alternative, this termination claim also fails because of Plaintiff’s failure to provide
sufficient evidence of pretext. The Court thus examines below Defendant’s legitimate nondiscriminatory reason for termination and Plaintiff’s evidence of pretext.
ii. Legitimate non-discriminatory reason
Defendant has also asserted a legitimate non-discriminatory reason for terminating
Plaintiff.29 Cox recommended Plaintiff’s termination because of newly realized budgetary
constraints. Cox asserts that Plaintiff and Tsarkov were chosen for termination because the
retained programmers “had more experience in the financial services business sector, [and
Defendant] had more confidence in their skills for the OPS Project.” (Cox Decl. ¶ 30.) One of
the two retained programmers also performed other necessary functions. (Id. ¶ 31.) Plaintiff
29
Defendant did not provide a legitimate non-discriminatory reason for the adverse
employment action of diminished duties. Ditinsky once explained to Plaintiff that all work was
assigned “solely based on projected time of delivery and efficiency.” (Ditinsky email to Plaintiff
dated March 9, 2011.) Defendant, however, only argued that there was no adverse employment
action because all of the duties assigned Plaintiff were within the scope of his employment. The
Court cannot therefore credit any legitimate, non-discreiminatory rationale for any diminishment
in duties. See Russell v. Aid to Developmentally Disabled, Inc., --- F. App’x ---, ---, 2018 WL
5098819, at *2 (2d Cir. Oct. 18, 2018) (holding that employer bears the burden of production of
legitimate non-discriminatory business rationale).
35
also concedes that Defendant has satisfied its burden of production. (See Pl. Obj. 9 (“In
[Defendant’s] defense, Cox articulated a legitimate non-discriminatory business reason that the
[OPS] budget severely cut which necessitated laying off [Plaintiff] and Tsarkov and not LaPiana
even though he was the least qualified and experience[d] programmer . . . .”)); Pl. Opp’n 105
(“[Defendant] has articulated at least three legitimate reasons . . . .”).)
iii. Pretext
Plaintiff argues that Defendant’s legitimate business rationale is pretext for
discrimination for the following reasons: (1) the reasons for his termination have varied over
time; (2) he had more relevant experience than LaPiana and his work performance was good; (3)
Tsarkov was not actually terminated; and (4) the purchase orders are falsified in light of an
alleged discrepancy between the amount allocated to the project and Defendant’s invoices and
also references to “HAZMAT,” “AU,” and a “stabilization project.”30 (Pl. Opp’n. 16, 27, 29, 37–
38, 50, 52, 57, 69-70, 92–98.)
Plaintiff fails to demonstrate pretext. First, Defendant’s reasons for terminating Plaintiff
have not been materially inconsistent. Plaintiff argues that Defendant claimed to terminate him
for the following “different reasons:” (1) restructuring; (2) general reduction-in-force; and (3)
severe budget cut. (Id. at 92.) All three reasons are consistent with one another and are
explained by budgetary constraints. Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 852 (2d Cir.
2013) (“Where the employer offers “variations . . . on the same theme rather than separate
inconsistent justifications,” there is not sufficient evidence of pretext to preclude the entry of
summary judgment.”).
30
Plaintiff also asserted a few reasons that are plainly meritless: (1) that he did not
receive a warning prior to being laid off; and (2) that he was not the last one hired. (Pl. Opp’n
26–27.)
36
Second, Plaintiff only provides evidence of subjective disagreement with the opinion of
his employer regarding his work experience and performance. See Francis v. Hartford Bd. of
Educ., --- F’App’x ---, ---, 2019 WL 211503, at *2 (2d Cir. Jan. 16, 2019) (“[Plaintiff] must
provide evidence beyond speculation that the negative evaluations were unsupported.” (citing
Zann Kawn, 737 F.3d at 852)); Zann Kwan, 737 F.3d at 852 (Parker, J.) (concurring in part and
dissenting in part) (explaining that an employee’s “subjective disagreement with her employer’s
assessment of her performance . . . [is] [in]sufficient to demonstrate [discriminatory] intent and
defeat summary judgment.” (citing Ricks v. Conde Nast Pub’ns, 6 F. App’x 74, 78 (2d Cir.
2001)). Defendant never claimed that Plaintiff was terminated for “poor” performance. Cox
instead only asserted that Defendant had greater confidence in LaPiana. In that regard, Plaintiff
himself admitted that Ditinsky favored LaPiana’s work product over his own, and that LaPiana
was treated more favorably due to perceived superior market data skills. (See Pl. Dep. at 189:1011 (“[Ditinsky] would ignore [Plaintiff’s suggestions] . . . most of the time in lieu of what
[LaPiana] ha[d] to say.”); Plaintiff email to Keeler dated Mar. 25, 2011, annexed to Pl. Opp’n as
Ex. 6, Docket Entry No. 157-6); Toussaint v. NY Dialysis Servs., Inc., 706 F. App’x 44, 45 (2d
Cir. 2017) (“[W]e are decidedly not interested in the truth of the allegations against plaintiff. We
are interested in what motivated the employer.” (quoting McPherson v. NYC Dep’t of Educ., 457
F.3d 211 216 (2d Cir. 2006))).
Third, Defendant provided sufficient evidence of Tsarkov’s termination. Although
Plaintiff argues that Defendant only provided a 2011 W-2 form in response to his request for
proof of Tsarkov’s termination, (Pl. Opp’n 97), Defendant provided a signed copy of Tsarkov’s
release form. (See Tsarkov release form.) Plaintiff provides no evidence to discredit this
submission.
37
Finally, Plaintiff fails to provide any evidence to suggest that the purchase orders were
falsified. Plaintiff first argues that Defendant’s invoices from 2010 to 2012 exceed the
allocations in the 2011 and 2012 purchase orders. (Pl. Opp’n 100.) Plaintiff thus claims that
there were more funds available than Defendant claims. Plaintiff, however, misreads
Defendant’s representation of the 2011 and 2012 purchase orders to make this argument. (See
Pl. Opp’n 99 (quoting Defendant’s discovery submission letter incorrectly as representing that
the purchase orders covered the period from 2010 to 2012).) Defendant had specifically
explained that the purchase orders reflected the agreed upon budget “from 2011 through 2012.”
Considering the proper period in time, Defendant’s invoices match up exactly with the amounts
allocated in the 2011 and 2012 purchase orders.31 (See 2011 Purchase Order, annexed to Cox
Decl. as Ex. 3, Docket Entry No. 144-1; 2012 Purchase Order, annexed to Cox Decl. as Ex. 5,
Docket Entry No. 144-1; Invoices, annexed to Cox Decl. as Ex. 6, Docket Entry No. 144-1.)
Plaintiff’s other argument that the purchase orders are for projects other than OPS is sheer
speculation insufficient to preclude summary judgment.32
31
Plaintiff also appears to argue that Defendant should have provided information or a
purchase order covering September through December of 2010. (Pl. Opp’n 37; Pl. Decl. ¶ 49.)
Any constraints in the 2011 budget, however, would have necessitated a reduction-in-force.
Plaintiff fails to rebut the constraints caused by the reduced budget in 2011.
32
There is no evidence to support Plaintiff’s claims of pretext based on other alleged
instances of fabrication of evidence. (See, e.g., Pl. Opp’n 107.) Plaintiff, for example, claims
that Defendant falsified an employee handbook based on the introduction of a version with the
last page signed and a generic blank version at his deposition. (See Pl. Dep. at 8–10.) Similarly,
Plaintiff argues that Cox and Ditinsky colluded to distort the contents of a report regarding his
November of 2010 complaint. (Pl. Decl. ¶ 17.) Cox had asked Ditinsky to note that Plaintiff had
not claimed racism in his meeting with him. (November 10, 2010 email.) Plaintiff provides no
evidence to suggest that Cox’s request was anything more than an actual recollection of the
meeting. Moreover, Plaintiff himself admitted that he had not told Cox on what basis he felt
discriminated against. (See Pl. Dep. at 264:4–11.) Likewise, there is no substance to Plaintiff’s
allegations that Judge Bulsara, his clerk, and the clerk of court conspired to fabricate evidence or
prevent Plaintiff from filing his objections on time.
38
The Court therefore dismisses both Title VII discrimination claims due to Plaintiff’s
failure to meet his prima facie burden. The Court also dismisses the termination claim for lack
of pretext even if Plaintiff could have satisfied his initial burden.
f. Title VII retaliation claims
Title VII retaliation claims are also “evaluate[d] . . . using the three-step framework
outlined in McDonnell Douglas.” Russell v. N.Y. Univ., 739 F. App’x 28, 32 (2d Cir. 2018)
(citing Duplan v. City of New York, 888 F.3d 612, 625 (2d Cir. 2018)). Under the framework, the
plaintiff must first establish “a prima facie case of retaliation.” Id. (quoting Hicks v. Baines, 593
F.3d 159, 164 (2d Cir. 2010)). If the plaintiff sustains this initial “de miminis” burden, Duplan,
888 F.3d at 626, a “presumption of retaliation” arises and the defendant must “articulate a
legitimate, non-retaliatory reason for the adverse employment action,” Saji, 724 F. App’x at 14
(quoting Hicks, 593 F.3d at 164). “If the defendant does so, then the burden shifts back to the
plaintiff . . . [to] show that the reason offered by the employer is merely pretext, and that the
employer’s ‘desire to retaliate’ was the actual ‘but-for cause of the challenged employment
action.’” Id. (quoting Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 70 (2d Cir. 2015)).
“‘But-for’ causation does not, however, require proof that retaliation was the only cause of the
employer’s action, but only that the adverse action would not have occurred in the absence of the
retaliatory motive.” Duplan, 888 F.3d at 625 (quoting Vega, 801 F.3d at 90–91).
i. Plaintiff fails to establish a prima facie case of retaliation for his
termination
To establish 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.” Id. (quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.
39
2005)).
The parties dispute only the first and fourth elements of a prima facie case of retaliation.
Even as to the “protective activities” element, the parties at this stage only dispute whether the
July 1, 2011 complaint about LaPiana’s outburst on June 28, 2011 qualifies.33
Having reviewed Judge Bulsara’s findings as to the unopposed portions of the Title VII
termination retaliation claim, and finding no clear error, the Court conducts de novo review as to
whether the July of 2011 complaint qualifies as a protected activity. The Court also conducts de
novo review as to whether there is a causal connection between any of the qualifying protected
activities and Plaintiff’s termination.
1. Protected activity
Filing either a formal or informal complaint challenging discrimination is a protected
activity for purposes of retaliation claims under Title VII. See Jagmohan v. Long Island R. Co.,
622 F. App’x 61, 63 (2d Cir. 2015); Summa v. Hofstra Univ., 708 F.3d 115, 126 (2d Cir. 2013).
“A complaint of discrimination constitutes ‘protected activity’ only if (1) the plaintiff holds a
good-faith belief that he suffered discrimination because of a protected characteristic and (2) that
belief is reasonable.” Jagmohan, 622 F. App’x at 64–65 (citing Galdieri–Ambrosini v. Nat’l
Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998)); Summa, 708 F.3d at 126 (holding that
Title VII “protects employees [who] . . . make[] informal protests of discrimination, including
making complaints to management, so long as the employee has a good faith, reasonable belief
that the underlying challenged actions of the employer violated the law” (alterations in original)
(quoting Gregory v. Daly, 243 F.3d 687, 700 (2d Cir. 2001))). Complaints also cannot be so
33
Defendant no longer disputes that Plaintiff engaged in protected activity in making
informal complaints on November of 2010 and March 22, 2011. (See generally Def. Resp.)
40
vague or “generalized that the employer could not ‘reasonably have understood [ ] that the
plaintiff’s complaint was directed at conduct prohibited by Title VII.’” Rojas v. Roman Catholic
Diocese of Rochester, 660 F.3d 98, 108 (2d Cir. 2011) (alteration and citation omitted); see also
Galdieri-Ambrosini, 136 F.3d at 292 (“[I]mplicit in the requirement that the employer have been
aware of the protected activity is the requirement that it understood, or could reasonably have
understood, that the plaintiff’s opposition was directed at conduct prohibited by Title VII.”).
Plaintiff’s July 1, 2011 complaint is not a protected activity because it post-dates the
termination decision. The evidence demonstrates that the decision to terminate Plaintiff was
made in June of 2011 or earlier. (June 28, 2011 Emails.) Prior to the July 1, 2011 complaint,
Cox had already recommended that Plaintiff be terminated. (Id.; Cox Decl. ¶¶ 31–35.)
Defendant was therefore in the later procedural stages of termination. Plaintiff offers no rebuttal
evidence other than his conclusory assertions that there could have been no decision to terminate
him because he continued to be employed for a few days. That fact, however, does not negate
the evidence that Defendant had already decided to terminate Plaintiff. Complaints made after
this “pre-planned” termination decision cannot be the basis of a retaliation claim. See Douyon v.
N.Y.C. Dep’t of Educ., 665 F. App’x 54, 58 (2d Cir. 2016) (holding that pre-planned decision for
termination could not serve as protected activity for Title VII retaliation purposes).
The May 23, 2011 complaint also does not qualify as a protected activity because there is
no evidence to suggest that Plaintiff raised concerns about discrimination. Plaintiff admitted that
he did not tell Cox that he felt he was being discriminated against. (Pl. Dep. at 225:20–24.)
As a result, only the November of 2010 complaint to Cox about Tsarkov’s September
2010 comment and LaPiana’s screaming, and the March 22, 2011 complaint to Ditinsky about
41
LaPiana’s comments on that day qualify as protected activities.34
2. Inference of retaliation
A causal connection of retaliation can be shown either “(1) indirectly, by showing that the
protected activity was followed closely by discriminatory treatment, or through other
circumstantial evidence such as disparate treatment of fellow employees who engaged in similar
conduct; or (2) directly, through evidence of retaliatory actions directed against the plaintiff by
the defendant.” Littlejohn, 795 F.3d at 307, 319 (quoting Gordon v. N.Y.C. Bd. of Educ., 232 F.3d
111, 117 (2d Cir. 2000)). “Direct evidence may . . . include evidence of discriminatory
statements or actions by employees who, while not the ultimate decisionmakers, have ‘enormous
influence in the decision-making process.’” Emmanuel v. Cushman & Wakefield, Inc., No. 13CV-2894, 2015 WL 5036970, at *4 (S.D.N.Y. Aug. 26, 2015) (quoting Rose v. N.Y.C. Bd. of
Educ., 257 F.3d 156, 162 (2d Cir. 2001)); see also Knox v. Town of Se., No. 11-CV-8763, 2014
WL 1285654, at *13 (S.D.N.Y. Mar. 31, 2014) (“In determining whether a remark is probative,
courts consider four factors: (i) who made the remark . . . ; (ii) when the remark was made in
relation to the employment decision at issue; (iii) the content of the remark . . . ; and (iv) the
context in which the remark was made . . . .”), aff’d, 599 F. App’x 411 (2d Cir. 2015). Indirect
evidence may include a “showing that the protected activity was closely followed in time by the
adverse action.” Colon v. Fashion Inst. of Tech., 983 F. Supp. 2d 277, 287 (S.D.N.Y. 2013)
(quoting Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590, 593 (2d
Cir. 1988)); see also, e.g., Feingold v. New York, 366 F.3d 138, 156–157 (2d Cir. 2004) (“[T]he
requirement that [the plaintiff] show a causal connection between his complaints and his
34
Other than the dispute over the July 1, 2011 complaint, the parties did not object to
Judge Bulsara’s findings that these four complaints are the only potential basis for Plaintiff’s
retaliation claim. The Court finds no clear error as to that determination.
42
termination is satisfied by the temporal proximity between the two.” (collecting cases));
Nonnenmann v. City of New York, No. 02-CV-10131, 2004 WL 1119648, at *22 (S.D.N.Y. May
20, 2004) (“Causation can be established either indirectly by means of circumstantial evidence,
for example, by showing that the protected activity was followed by adverse treatment in
employment, or directly by evidence of retaliatory animus.” (quoting Morris v. Lindau, 196 F.3d
102, 110 (2d Cir. 1999))).
Plaintiff fails to provide more than a scintilla of evidence of retaliatory animus. There is
no evidence to suggest that Cox recommended termination based on the November of 2010
complaint. Plaintiff also cannot establish causation through temporal proximity as the
termination occurred seven to eight months after the November of 2010 complaint. See Abrams
v. Dep’t of Pub. Safety, 764 F.3d 244, 254 (2d Cir. 2014) (explaining “temporal proximity must
be very close” in Title VII retaliation cases to demonstrate a causal connection); Caddick v. Pers.
Co. I LLC, No. 16-CV-7326, 2018 WL 3222520, at *8 (S.D.N.Y. June 29, 2018) (“[C]ourts in
this Circuit have consistently held that the passage of two to three months between the protected
activity and the adverse employment action does not allow for an inference of causation.”
(citation omitted)).
Likewise, Plaintiff offers no evidence to rebut the assertion that Cox, the decisionmaker,
based the termination decision on the March 22, 2011 complaint or was even aware that Plaintiff
made the complaint. (See Pl. Resp. ¶ 87 (explaining in sub-section regarding March 22, 2011
incident that “[i]t is quite possible that neither Ditinsky heard about it nor Cox has any
knowledge of the incident”)); Ehrbar v. Forest Hills Hosp., 131 F. Supp. 3d 5, 34 (E.D.N.Y.
2015) (“[W]here it is undisputed that the decision maker was unaware of the employee’s
protected activity, that fact may be evidence that there is no causal connection.” (first citing
43
Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 92 (2d Cir. 2011); then citing
Gordon, 232 F.3d at 114; then citing E.E.O.C. v. Bloomberg LP, 967 F. Supp. 2d 816, 859
(S.D.N.Y. 2013)); see also Summa, 708 F.3d at 127 (“To the extent that decisionmaker
knowledge is relevant in establishing causation, that knowledge may be satisfied by
demonstrating that ‘the agent who decides to impose the adverse action but is ignorant of the
plaintiff's protected activity acts pursuant to encouragement by a superior (who has knowledge)
to disfavor the plaintiff.’” (quoting Henry, 616 F.3d at 148)). Nor did Plaintiff provide any
evidence of retaliatory animus on the part of Ditinsky that influenced Cox’s decision.35 Cf.
Vasquez, 835 F.3d at 272 (finding cat’s paw theory to apply where co-worker “manipulate[d]”
decisionmakers into serving as “conduit[s]” of his retaliatory animus); see also Berrie v. Bd. of
Educ. of Port Chester-Rye Union Free Sch. Dist., 750 F. App’x 41, 49 (2d Cir. 2018)
(“Temporal proximity alone is generally insufficient after about three months.”).36
The Court therefore grants Defendant’s summary judgment motion as to Plaintiff’s Title
VII termination retaliation claim. Moreover, this claim would also fail at the pretext stage for the
same reasons discussed for the Title VII discrimination termination claim.
ii. The Court construes Plaintiff as having alleged a Title VII retaliation
claim based on diminished duties following March 22, 2011
The Court considers Plaintiff’s Title VII retaliation claim based on a diminishment of
duties following Plaintiff’s complaint to Ditinsky on March 22, 2011. On March 22, 2011,
Plaintiff complained to Ditinsky about an incident that day where LaPiana screamed at him
35
See supra nn. 18, 24, 27.
36
Conceivably, there may be temporal proximity because Cox recommended Plaintiff’s
termination sometime before June 28, 2011, potentially within three months of March 22, 2011.
Even then, however, “temporal proximity [alone] is insufficient to satisfy [the plaintiff’s] burden
to bring forward some evidence of pretext.” Francis, --- F. App’x at ---, 2019 WL 211503, at *2
(citation omitted)).
44
during a meeting, stating that “people of your type are stupid so you should listen.” (Pl. Dep. at
271:2–10.)
Although this claim is not clearly alleged in the Complaint, Plaintiff testified during his
deposition about being reassigned to Hastings shortly after the March 22, 2011 incident
involving LaPiana.37 See DiMare Homestead, Inc. v. Alphas Co. of N.Y., 547 F. App’x 68, 70 (2d
Cir. 2013) (“[A] district court may consider claims outside those raised in the pleadings so long
as doing so does not cause prejudice.” (citation omitted)). Judge Bulsara also ultimately
considered this claim, considering Plaintiff’s pro se status. (R&R 50 n.17.) Defendant did not
object to Judge Bulsara’s consideration of this claim. (See generally Def. Resp.) Nor did
Defendant provide specific evidence of prejudice caused by the consideration of this claim.38
Under these circumstances, the Court finds it prudent to consider this claim rather than waiting to
do so after granting leave to amend. See Dimare, 547 F. App’x at 70 (explaining prejudice
precluding leave to amend requires that the “failure to plead an issue . . . disadvantaged” the
other party from “presenting its case”); McNeill v. Jordan, No. 14-CV-2872, 2017 WL 2955763,
at *7 (E.D.N.Y. July 11, 2017) (“[A] district court . . . may grant a pro se litigant leave to amend,
after the close of discovery and during the pendency of a summary judgment motion.” (citations
omitted)).
In contrast to the R&R, the Court concludes that Plaintiff has provided sufficient
evidence to preclude summary judgment. At the very least, temporal proximity exists between
Plaintiff’s complaint to Ditinsky about LaPiana’s racial comments on March 22, 2011, and the
37
Plaintiff’s deposition took place on September 12, 2013.
38
Defendant, in fact, has only argued the merits of this claim. (See Def. Reply in Supp.
of Def. Mot., at 18, 23–24, Docket Entry No. 153.)
45
reassignment to Hastings shortly thereafter.39 See El Sayed v. Hilton Hotels Corp., 627 F.3d 931,
933 (2d Cir. 2010) (“The temporal proximity of events may give rise to an inference of
retaliation for the purposes of establishing a prima facie case of retaliation under Title VII.”).
Although the R&R concluded that this claim also failed on the merits, the citation to Plaintiff’s
deposition testimony is unpersuasive. The R&R cited to an exchange where Plaintiff explained
that he had never told Ditinsky that he was being discriminated against by LaPiana. (R&R at 50
n.17.) Read in context, this exchange, however, concerned the incident involving LaPiana from
November of 2010. (See Pl. Dep. at 263:14 – 266:23.) A contrary reading of this testimony, in
fact, would conflict with the R&R’s own conclusion that Plaintiff had engaged in protected
activity by complaining to Ditinsky about LaPiana’s conduct about the March 22, 2011 incident.
(See R&R at 48 (explaining the “March 2011” complaint was a protected activity).) Because
Defendant fails to provide any legitimate, non-retaliatory rationale for the alleged reassignment
to Hastings, (see supra nn. 19, 29), the Court finds that summary judgment is inappropriate for
this claim.
g. Title VII hostile work environment claim
Plaintiff asserts a claim for hostile work environment, relying principally on alleged
discriminatory actions by Tsarkov and LaPiana: (1) Tsarkov’s remark on September 9, 2010; (2)
LaPiana’s screaming in November of 2010; (3) LaPiana’s remark in March of 2011; and (4)
39
Defendant also fails to provide any persuasive argument why a significant
diminishment of duties could not constitute an adverse employment action for retaliation claims
as Judge Bulsara found they were for discrimination claims. See Hicks v. Baines, 593 F.3d 159,
165 (2d Cir. 2010) (defining adverse employment actions as any that are “harmful to the point
that they could well dissuade a reasonable worker from making or supporting a charge of
discrimination” in the context of Title VII retaliation (quoting Burlington Northern and Santa Fe
Ry. Co. v. White, 548 U.S. 53, 57 (2006)); Burlington, 548 U.S. at 71 (“Whether a particular
reassignment [of job duties] is materially adverse depends upon the circumstances of the
particular case.”); (see also supra n.19; R&R 28.)
46
LaPiana’s actions on June 28, 2011. (Pl. Opp’n 116, 121–22.)
“[T]o establish a hostile work environment claim under Title VII, a plaintiff must produce
enough evidence to show that ‘the workplace [was] permeated with discriminatory intimidation,
ridicule, and insult, that [was] sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.’” Tillery, 739 F. App’x at 27
(quoting Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102 (2d Cir. 2010)); see also
Boonmalert v. City of New York, 721 F. App’x 29, 33 (2d Cir. 2018) (holding conduct must be
both objectively severe or pervasive and subjectively perceived to be abusive). Under the
totality of the circumstances, a plaintiff must show “either that a single incident was
extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to
have altered the conditions of her working environment.” Desardouin v. City of Rochester, 708
F.3d 102, 105 (2d Cir. 2013) (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir.
2000)) (internal quotation marks omitted); Littlejohn, 795 F.3d at 321 (“[W]e must consider . . .
‘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.’” (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993))).
“A plaintiff must also demonstrate that she was subjected to the hostility because of her
membership in a protected class.” Tillery, 739 F. App’x at 27 (quoting Brennan v. Metro Opera
Ass’n, Inc., 192 F.3d 310, 318 (2d Cir. 1999)).
In all cases, there must also be “a specific basis for imputing the conduct creating the
hostile work environment to the employer.” Summa, 708 F.3d at 124 (quoting Duch v.
Jakubek, 588 F.3d 757, 762 (2d Cir. 2009)). “If the alleged harasser supervises the plaintiff, the
objectionable conduct is imputed to the employer.” Willis v. City of Onondaga, 710 F. App’x 47,
47
48 (2d Cir. 2018) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998)). In those
cases, the employer may assert an affirmative defense by establishing (1) “that the employer
exercised reasonable care to prevent and correct promptly any . . . harassing behavior” and (2)
“that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise.” Id. (citation omitted). “If
the alleged harasser is a coworker, the plaintiff must show that the employer ‘either provided no
reasonable avenue for complaint or knew of the harassment but did nothing about it.’” Id.
(quoting Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 72 (2d Cir. 2000)).
Based on the totality of the circumstances, the Court concludes that summary judgment is
inappropriate at this time for the hostile work environment claim. Admittedly, the two to three
isolated discriminatory comments by co-workers alone would be insufficient to make out a
hostile work environment claim. While offensive, Tsarkov’s racist remark on September 9, 2010
and LaPiana’s racist remark on March 22, 2011,40 occurred months apart and were made by-coworkers.41 (See Pl. Dep. at 256:11–13 (stating that the March of 2011 incident was the only time
40
As detailed above in the background section, Plaintiff could not recall the words used
by LaPiana in the November of 2010 incident. (Pl. Dep. at 245:21–246:21.) In addition,
Plaintiff mentioned for the first time in opposition to summary judgment that LaPiana had
referenced his Jamaican heritage in the June 28, 2011 incident. (Pl. Decl. at 72, ¶ (N)(b)). This
assertion is inconsistent with Plaintiff’s deposition testimony. The Court therefore disregards
this assertion. See Raskin, 125 F.3d at 63; Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012)
(affirming district court’s decision to disregard “newly-remembered facts” where declarant failed
to explain how he could suddenly recall facts that he had previously testified he could not
remember). LaPiana’s other comments were directed at Plaintiff’s technical abilities without
reference to race. (See Pl. Opp’n 11 (“LaPiana often criticized Plaintiff’s work in emails to
Ditinsky and other members of the project team. He often falsely accused Plaintiff of copying
other employee’s work.”).)
41
Even adding to the consideration the June 28, 2011 incident, these incidents alone are
not sufficiently severe to alter the conditions of employment individually or in the aggregate.
48
LaPiana had expressly made a racist remark));42 Desardouin, 708 F.3d at 105; Rasko v. N.Y.C.
Admin. for Children’s Servs., 734 F. App’x 52, 55 (2d Cir. 2018) (“Isolated, minor acts or
occasional episodes do not warrant relief.” (quoting Brennan, 192 F.3d at 318)). As discussed
earlier, Plaintiff, however, has made a sufficient showing to preclude summary judgment as to
his diminished duties retaliation claim. If Plaintiff were to prevail on that retaliation claim, a
reasonable jury could also conclude that Ditinsky, a supervisor, ultimately acted to give power to
LaPiana’s racist comments. See La Grande v. DeCrescente Distrib. Co., 370 F. App’x 206, 210
(2d Cir. 2010) (holding that allegations that human resources department threatened plaintiff with
termination and doubled his work in response to complaints of racism by co-workers were
sufficient to preclude dismissal of complaint). Viewed in the light most favorable to the nonmovant, Plaintiff has provided sufficient evidence that LaPiana’s comments, by way of Ditinsky,
had the effect of altering “the conditions of employment . . . for the worse.” Whidbee, 223 F.3d
at 70 (citation and emphasis omitted).
The Court therefore denies Defendant summary judgment as to Plaintiff’s hostile work
environment claim.
42
Plaintiff also informed Cox that Tsarkov’s comment may have been “innocent” or
“benign,” even if upsetting. (Pl. Dep. at 241:6–12.)
49
III. Conclusion
For the reasons discussed above, the Court grants in part and denies in part Defendant’s
motion for summary judgment. The Court denies summary judgment as to Plaintiff’s Title VII
(1) retaliation claim based on diminishment of duties and (2) hostile work environment. The
Court grants summary judgment as to all other claims.
Dated: March 30, 2019
Brooklyn, New York
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
50
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