Jackson v. Sleepy's LLC et al
Filing
49
MEMORANDUM & ORDER: The defendants motion 38 for summary judgment is denied with respect to Jacksons retaliation claims based on the PIP. It is granted in all other respects. Ordered by Judge Frederic Block on 3/29/2016. (Innelli, Michael)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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WALTER JACKSON,
Plaintiff,
-against-
MEMORANDUM AND ORDER
No. 13-CV-2086 (FB) (SMG)
SLEEPY’S, LLC and
ERIC LEE-HUGH,
Defendants.
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Appearances:
For the Plaintiff:
VINCENT I. EKE-NWEKE, ESQ.
498 Atlantic Avenue
Brooklyn, New York 11217
For Defendants:
THEO E.M. GOULD, ESQ.
JOSEPH E. FIELD, ESQ.
Littler Mendelson, P.C.
900 Third Avenue
New York, New York 10022
BLOCK, Senior District Judge:
Walter Jackson claims that he was subject to discrimination and retaliation
while employed at Sleepy’s, LLC. He sues Sleepy’s and his former manager, Eric
Lee-Hugh, under 42 U.S.C. § 1981, Title VII of the Civil Rights of 1964, the New
York State Human Rights Law and the New York City Human Rights Law.
Both defendants move for summary judgment pursuant to Federal Rule of Civil
Procedure 56. For the following reasons, the motion is granted in part and denied in
part.
I
The following facts are either undisputed or, if disputed, presented in the light
most favorable to Jackson:
Sleepy’s is a retailer of mattresses and related products. Jackson—a black male
from St. Vincent in the West Indies—worked as a sales associate in Sleepy’s Queens
Region from May 18, 2009, to October 25, 2010.
Sales associates are rotated among various showrooms in the region. The
rotations are set by the regional managers. When Jackson began working for
Sleepy’s, his regional manager was James Constantinides. Steven Bucher later
replaced Constantinides. Jackson had “no gripes” with Constantinides’s schedules,
Dep. of Walter Jackson (Mar. 5, 2014) 69, and thought Bucher’s schedules were
“okay,” id. 70.
On August 15, 2010, Lee-Hugh—who is black, but not of West Indian
descent—took over as regional manager. Sleepy’s asserts that Lee-Hugh did not make
any scheduling decisions until September 29th, but there is some evidence that he
made decisions a month earlier.
The crux of Jackson’s discrimination claim is that Lee-Hugh assigned him less
frequently to stores with a high sales volume and more frequently to stores with a low
sales volume. In the thirty-three weeks between January 3 and August 28, 2010, LeeHugh’s predecessors assigned Jackson to high-volume stores 48 times, an average of
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1.45 times per week. Lee-Hugh, by contrast, assigned Jackson to the same stores 2
times in eight weeks, an average of 0.25 times per week. Similarly, Jackson was
assigned to low-volume stores an average of 1.79 times per week before Lee-High
took over as regional manager, and an average of 3.13 times per week afterwards.
Jackson claims that the assignments hurt his sales performance. Sleepy’s sales
associates work on commission, but they draw a salary in advance against which their
commissions are credited. A sales associate who fails to make enough in commissions
to cover his or her salary is “negative to draw.”
On October 5, 2010, Jackson sent Lee-Hugh an email objecting to his
assignments:
Month after month, week after week, I am consistantly [sic] scheduled
in the lower performing showrooms. Some showrooms obviously do
much more business because of the socio-economic and demographics
of the neighbourhood or their locations.
I am employed as a commission sales employee and expect a fair and
equal opportunity to produce and earn. It is not necessary to get into any
further details, for I do think my comments are self explanatory.
Decl. of Theo Gould, Ex. N. Three days later, Lee-Hugh met with Jackson. In
response to Jackson’s concern that he was being assigned too often to low-volume
stores, Lee-Hugh said that higher-volume stores would go to associates with more
sales. When Jackson asked that his mix of assignments include two of the highestvolume stores, Lee-Hugh said, “It ain’t happening.” Jackson Dep. 119.
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Jackson concedes that the focus of the meeting was on his own scheduling
assignments. See id. 118 (“I’m here to talk about myself.”). At his deposition,
however, he stated that he had also mentioned race discrimination:
A.
I said why [are] the white ones being in the better stores than the
minority ones.
Q.
Did you say to Mr. Lee-Hugh specifically that you thought that
white people were in better stores than minorities?
A.
I did.
Q.
You used the word “minorities?”
A.
Yes.
Q.
You used the word “white?”
A.
Yes.
Q.
In that meeting with Mr. Lee-Hugh.
A.
Yes, sir.
Id. 119-20.
On October 12, 2010, Lee-Hugh gave Jackson a “Performance Improvement
Plan” (“PIP”) identifying three areas for improvement: average sales ticket, sale of
accessories and use of DORMO, a diagnostic device for helping customers choose a
mattress. The PIP listed a “goal” for each category and set an “achievement date” of
November 12, 2010. Decl. of Eric Lee-Hugh, Ex. A. It also noted that Jackson was
negative to draw in the amount of $1,400, and recited that “failure to meet or sustain
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improved performance will lead to Walter’s termination.” Id. Jackson understood the
PIP to mean that “obviously, no matter what, in 30 days, I would have been
terminated.” Jackson Dep. 193. Lee-Hugh, however, stated at his deposition that
“any improvement is what our expectation was.” Dep. of Eric Lee-Hugh (Mar. 26,
2014) 130.
After receiving the PIP, Jackson, by his own admission, “went to work as usual
and did the same things with customers as I did [before].” Jackson Dep. 197; see also
id. 198 (“Everything I normally do I continued to do.”). In his opinion, he could only
improve his performance “if [he] was being assigned to stores with better traffic.” Id.
200.
Jackson worked at a low-volume store (designated “YR” in Sleepy’s records)
twice during the week of October 17, 2010. Though the store was physically located
in Queens, the parties vigorously dispute whether it was part of Sleepy’s Queens
Region or its Brooklyn Region. Jackson was assigned to work at the same store twice
during the following week, but did not report because he resigned on October 25th.
He pursued a claim of race discrimination with the EEOC and, after receiving a rightto-sue letter, filed suit.
II
Jackson’s theory of the case is as follows: Lee-Hugh assigned him to lowvolume stores (and failed to assign him to high-volume stores) because he is black and
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from the West Indies.1 When Jackson complained about the discriminatory treatment,
Lee-Hugh retaliated by issuing the PIP and assigning Jackson to the YR store.
Jackson claims that the store assignments and PIP collectively amounted to a
constructive discharge. The Court will address each claim in turn.
A. Discrimination
Jackson’s discrimination claims under Title VII, § 1981, the NYSHRL and the
NYCHRL are all subject to the familiar burden-shifting analysis of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Vivenzio v. City of Syracuse, 611
F.3d 98, 106 (2d Cir. 2010); Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010).
First, he must make out a prima facie case of discrimination by showing that “1) he
belonged to a protected class; 2) he was qualified for the position; 3) he suffered an
adverse employment action; and 4) the adverse employment action occurred under
circumstances giving rise to an inference of discriminatory intent.” Terry v. Ashcroft,
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Jackson asks the Court to “construe his Complaint as asserting both race
based and national origin based discrimination claims.” Pl.’s Mem. of Law 2.
Defendants object that Jackson did not explicitly raise national-origin
discrimination before the EEOC. “[C]ourts have . . . recognized that race and
national origin discrimination claims may substantially overlap or even be
indistinguishable depending on the specific facts of a case,” Deravin v. Kerik, 335
F.3d 195, 201 (2d Cir. 2003), and the Second Circuit has cautioned that “courts
should not attempt to draw overly fine distinctions between race and national
origin claims as part of the threshold exhaustion inquiry prior to the full
development of a plaintiff’s claims.” Id. at 202. In any event, the Court’s ultimate
disposition of the discrimination claims makes it unnecessary to address the
objection.
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336 F.3d 128, 138 (2d Cir. 2003). If he succeeds, “the burden shifts to the defendant
to articulate ‘some legitimate, non-discriminatory reason for its action.’” Holcomb
v. Iona College, 521 F.3d 130, 138 (2d Cir. 2008) (quoting McDonnell Douglas Corp.,
411 U.S. at 802). At that point, Jackson “may no longer rely on the presumption
raised by the prima facie case, but may still prevail by showing, without the benefit
of the presumption, that the employer’s determination was in fact the result of . . .
discrimination.” Id.
The fourth element of the prima facie case is dispositive in this case. The only
evidence that Lee-Hugh assigned sales associates to stores based on their race or
ethnicity is a table summarizing assignments to two high-volume stores between
August 29 and October 24, 2010. Out of more than 200 shifts assigned, all but four
went to white, Asian or Hispanic sales associates.
A plaintiff may, of course, raise an inference of discrimination with evidence
that his employer “treated him less favorably than a similarly situated employee
outside his protected group.” Graham v. Long Is. R.R., 230 F.3d 34, 39 (2d Cir.
2000). But he or she “must show [he or] she was ‘similarly situated in all material
respects’ to the individuals with whom she seeks to compare [himself or] herself.” Id.
(quoting Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997). The
comparison need not be exact and will vary from case to case. Id. at 40.
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Jackson argues that his comparison is apt because all the comparators are sales
associates under Lee-Hugh’s supervision. The Court disagrees that this is sufficient.
There is no evidence, for example, regarding the comparators’ seniority relative to
Jackson; it could be that better assignments went to more senior associates. There is
also no evidence regarding their relative performance; it could be that better
assignments went to better salespeople.2
Moreover, Jackson’s proffered evidence offers no insight as to why he was not
assigned to high-volume stores more frequently. “Statistics alone are insufficient in
a disparate-treatment claim because an individual plaintiff must prove that he or she
in particular has been discriminated against.” Drake v. Delta Air Lines, Inc., 2005
WL 1743816, at *6 (E.D.N.Y. July 21, 2005) (citing Hudson v. International Bus.
Machs. Corp., 620 F.2d 351 (2d Cir.1980)), aff'd, 216 Fed. App'x 95 (2d Cir.2007).
The point is not that Jackson has failed to make an exact comparison, but that
he has failed to offer any criteria for distinguishing assignments based on race from
those based on other factors. The whole point of the fourth element of the prima facie
2
Jackson argues that it was unfair to relegate associates with lower sales to
low-volume stores because it deprived them of the opportunity to improve their
sales by taking advantage of the greater number of customers. The unfairness of
an employment decision does not give rise to an inference of unlawful
discrimination. Cf. Norton v. Sam’s Club, 145 F.3d 114, 120 (2d Cir. 1998)
(“[T]he ADEA does not make employers liable for doing stupid or even wicked
things; it makes them liable for discriminating, for firing people on account of their
age.”).
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case is to require the plaintiff to weed out enough of the myriad reasons for an
employment decision to justify an inference that the reason was discrimination. This
Jackson has not done. Since Jackson has not made out of a prima facie case of
discrimination, the Court need not address the remainder of the McDonnell Douglas
analysis.
B. Retaliation
A retaliation claim is subject to the same burden shifting as a discrimination
claim. See Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010). To make out a prima
facie case of retaliation, a plaintiff must show “(1) participation in a protected activity;
(2) that the defendant knew of the protected activity; (3) an adverse employment
action; and (4) a causal connection between the protected activity and the adverse
employment action.” Id. (citations and internal quotation marks omitted).
With respect to the first element, the Court must accept as true Jackson’s
deposition testimony that he specifically mentioned race discrimination when he met
with Lee-Hugh on October 8, 2010. The defendants point to a statement in the EEOC
investigator’s notes that Jackson had “indicated that he asked [Lee-Hugh] why some
sales personnel were assigned to stores, but did not specify/indicate race.” Decl. of
Jean E. Mulligan, Ex. A. That note, however, refers to the October 12th meeting at
which Lee-Hugh gave Jackson the PIP. At best, it impeaches Jackson’s credibility,
which cannot be addressed on summary judgment.
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There is no dispute that Lee-Hugh was aware of Jackson’s complaint. His
knowledge is imputed to Sleepy’s.
With respect to the third element, an employment action is sufficiently adverse
to support a retaliation claim under § 1981, Title VII and the NYSHRL if it was
“harmful to the point that [it] could well dissuade a reasonable worker from making
or supporting a charge of discrimination.” Hicks, 593 F.3d at 162 (quoting Burlington
N. & Santa Fe Ry. v. White, 548 U.S. 53, 57 (2006). It is not limited—as it is in the
discrimination context—to “actions that affect the terms and conditions of
employment.” Id. The standard under the NYCHRL is whether a jury could
“reasonably conclude from the evidence that [the challenged] conduct was, in the
words of the statute, ‘reasonably likely to deter a person from engaging in protected
activity’” Williams v. New York City Housing Auth., 872 N.Y.S.2d 27, 34 (1st Dep’t
2009) (quoting N.Y.C. Admin. Code § 8-107(7)). Although the practical difference
between the federal/state and city standards remains a mystery, see Fincher v.
Depository Trust & Clearing Corp., 604 F.3d 712, 723 (2d Cir. 2010) (“It is
unnecessary for us to determine on this appeal whether or to what extent the
‘reasonably likely to deter’ standard of the [NY]CHRL differs from Burlington’s ‘well
might have dissuaded’ test.”), the city standard is widely understood as broader. See
id. Thus, any action that qualifies as adverse under the federal/state standard will
necessarily satisfy the city standard as well.
10
In Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11 (2d Cir.
2012), the Second Circuit held that “[a] reasonable juror could find both that [the
defendant] threatened [the plaintiff] with the loss of his job, and that this threat would
‘dissuade[] a reasonable worker from making or supporting a charge of
discrimination.’” Id. at 26 (quoting Burlington Northern, 548 U.S. at 68). Since
Jackson’s PIP contemplated possible termination, it qualifies as an adverse
employment action. The Court further concludes that, because it might adversely
affect commissions, assignment to the “YR” store could dissuade a reasonable
employee from pursuing a discrimination complaint; indeed, the defendants do not
dispute that such assignments would qualify as adverse employment actions under the
higher standard for discrimination claims. Accord Richmond v. General Nutrition
Ctrs. Inc., 2011 WL 2493527, at *10 (S.D.N.Y. June 22, 2011) (“The allegedly lower
volume of sales at his new store, combined with the loss of his regular clientele and
the resulting commissions, could lead a reasonable fact-finder to find that [the
plaintiff] suffered an adverse employment action when he was transferred from the
Greenburgh Store to the White Plains Store.”).
The defendants do not dispute that the temporal proximity between the
protected activity and the adverse employment action gives rise to an inference of
retaliation. With respect to the assignments to the “YR” store, however, the Court
concludes that the inference does not arise because the assignments were merely the
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continuation of a practice that began before Jackson complained to Lee-Hugh. See
Slattery v. Swiss Reins. Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001) (“Where timing is
the only basis for a claim of retaliation, and gradual adverse job actions began well
before the plaintiff had ever engaged in any protected activity, an inference of
retaliation does not arise.”).
In sum, Jackson has made out a prima facie case of retaliation based on the PIP.
The burden, therefore, shifts to the defendants to offer a legitimate, non-retaliatory
reason. They cite Jackson’s subpar performance in the areas listed on the PIP.
The ultimate burden then returns to Jackson.
In University of Texas
Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), the Supreme Court
clarified that burden: “[A] plaintiff making a retaliation claim . . . must establish that
his or her protected activity was a but-for cause of the alleged adverse action by the
employer.” Id. at 2534. “‘[B]ut-for’ causation does not 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,” Zann Kwan v. Andalex Group
LLC, 737 F.3d 834, 846 (2d Cir. 2013), and a plaintiff may still satisfy his burden “by
demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the
employer’s proffered legitimate, nonretaliatory reasons for its action.” Id.
Jackson’s evidence is hardly overwhelming, but there is one dispute from which
a jury could reasonably infer that the PIP was a pretext for retaliation. At his
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deposition, Lee-Hugh stated that he would give an associate a PIP when he or she was
“around $1,000 negative to draw.” Lee-Hugh Dep. 126. According to Sleepy’s
records, Jackson was at that point as early as August 2010. When asked why he had
not given Jackson a PIP earlier, Lee-Hugh replied: “I can’t think of a reason.” Id. 125.
That testimony, coupled with the temporal proximity between the PIP and Jackson’s
complaint, would support an inference that, Lee-Hugh would not have given Jackson
the PIP but for the latter’s complaint.
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C. Constructive Discharge
Finally, Jackson argues that Lee-Hugh’s conduct amounted to a constructive
discharge. Constructive discharge is not a stand-alone claim; rather, it serves as an
adverse employment action entitling the plaintiff, if successful, to the same damages
as an employee who was actually terminated for an unlawful reason.
See
Pennsylvania State Police v. Suders, 542 U.S. 129, 148 (2004) (“[A] constructive
discharge is functionally the same as an actual termination in damages-enhancing
respects.”).
“[A] claim of constructive discharge must be dismissed as a matter of law
unless the evidence is sufficient to permit a rational trier of fact to infer that the
employer deliberately created working conditions that were so difficult or unpleasant
that a reasonable person in the employee’s shoes would have felt compelled to
resign.” Stetson v. NYNEX Serv. Co., 995 F.2d 355, 361 (2d Cir. 1993) (citations and
internal quotation marks omitted). Claims of dissatisfaction with work assignments,
unfair criticism or unpleasant working conditions will not suffice. See id. at 360. A
threat of termination may be evidence of a constructive discharge if it presents the
employee with the choice to resign or be fired. See Murray v. Town of North
Hempstead, 853 F. Supp. 2d 247, 269 (E.D.N.Y. 2012) (collecting cases).
Jackson’s dissatisfaction with his store assignments falls well short of the
necessary level of difficulty or unpleasantness. Although the PIP stated that he would
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face termination if he did not show improvement, there is no evidence to support his
contention that he would have been fired “no matter what.” Jackson Dep. 193. For
these reasons, Lee-Hugh’s actions do not, as a matter of law, amount to a constructive
discharge.
III
For the foregoing reasons, defendants’ motion for summary judgment is denied
with respect to Jackson’s retaliation claims based on the PIP.3 It is granted in all other
respects.
SO ORDERED.
Frederic Block____________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
March 29, 2016
3
Liability under Title VII is limited to Sleepy’s, but § 1981, the NYSHRL
and the NYCHRL impose liability on both employers and individuals who
personally participate in retaliatory conduct. See Patterson v. County of Oneida,
375 F.3d 206, 229 (2d Cir. 2004) (§ 1981); Malena v. Victoria’s Secret Direct, 886
F. Supp. 2d 349, 366 (S.D.N.Y. 2012) (NYSHRL and NYCHRL). Thus, the case
shall proceed to trial against both defendants.
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