Ahmed v. Astoria Bank et al
Filing
49
MEMORANDUM & ORDER granting defendants' 44 Motion for Summary Judgment. The case is dismissed without costs or disbursements. The clerk is directed to enter judgment in favor of Defendants. Ordered by Judge Jack B. Weinstein on 3/31/2016. (Barrett, C)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
SHERIN AHMED,
Plaintiff,
MEMORANDUM & ORDER
14-CV-4595
– against –
ASTORIA BANK F/K/A ASTORIA
FEDERAL SAVINGS AND LOAN
ASSOCIATION and MAUREEN RUSSO,
individually and in her official capacity and
as aider and abettor,
Defendants.
Parties
Appearances
Sherin Ahmed
Tahanie A. Aboushi
The Aboushi Law Firm, PLLC
1441 Broadway, Suite 5036
New York, NY 10018
212-391-8500
Fax: 212-391-8508
tahanie@aboushi.com
Astoria Bank F/K/A Astoria
Federal Savings and Loan
Association
Mark S. Mancher
Kimberly Natalie Dobson
Jackson Lewis P.C.
58 South Service Road, Suite 250
Melville, NY 11747
631-247-0404
Fax: 631-247-0417
mancherm@jacksonlewis.com
dobsonk@jacksonlewis.com
Maureen Russo
JACK B. WEINSTEIN, Senior United States District Judge:
Table of Contents
I.
Introduction ......................................................................................................................... 1
II.
Procedural History .............................................................................................................. 2
III.
Factual Background ............................................................................................................ 4
A. Relevant Individuals ........................................................................................................... 4
B. Plaintiff’s Hiring and Orientation ....................................................................................... 5
C. Alleged Discrimination ....................................................................................................... 7
D. Termination ......................................................................................................................... 8
IV.
Law ................................................................................................................................... 12
A. Summary Judgment Standard ........................................................................................... 12
B. Title VII ............................................................................................................................ 13
1.
Disparate Treatment .......................................................................................... 13
2.
Retaliation ......................................................................................................... 15
3.
Hostile Work Environment ............................................................................... 18
C. 42 U.S.C. § 1981 ............................................................................................................... 20
D. State Claims ...................................................................................................................... 21
V.
Application of Law to Facts .............................................................................................. 22
A. Disparate Treatment .......................................................................................................... 22
B. Retaliation ......................................................................................................................... 23
C. Hostile Work Environment ............................................................................................... 23
VI.
I.
Conclusion ........................................................................................................................ 24
Introduction
Plaintiff believed she was discriminated against and fined because of her religion and
national background. The objective facts show no reasonable basis for that belief.
Sherin Ahmed commenced this suit against Astoria Bank and Maureen Russo
(“Defendants”) after she was terminated from her employment at Astoria Bank, at the end of her
1
probationary period, for tardiness and carelessness in checking important documents. She
believes she was subjected to discrimination and unlawful termination because she was a Muslim
of Egyptian and Arabic heritage: employees commented in her presence about “Arabic terrorists”
and Arabic women covering their heads; she was denied a day off for a religious holiday; and her
employment was terminated on the pretext of inadequate “performance.” She contends that she
had not been informed of performance issues, and received no warnings or discipline prior to
termination. See generally, Compl., Aug. 1, 2014, ECF No. 1.
Defendants take the position that plaintiff lost her job because she failed to satisfactorily
complete her three-month orientation period, she repeatedly underperformed, and she did not
improve after she was made aware of her shortcomings by her supervisor, Maureen Russo
(“Russo”).
Defendants move for summary judgment. Their motion is granted.
II.
Procedural History
Plaintiff filed a formal administrative complaint with the Equal Employment Opportunity
Commission (“EEOC”) on February 18, 2014. The complaint alleged unlawful discrimination in
employment by Russo and Astoria Bank. Defs.’ Statement of Uncontested Facts Pursuant to
56.1, Feb. 5, 2016, ECF No. 44-8 (“Defs.’ 56.1”), at ¶ 1; Aff. of Mark S. Mancher in Supp. of
Defs.’ Mot. for Summ. J., Dec. 24, 2015, ECF No. 44-1 (“Mancher Aff.”), at Ex. 1 (Charge of
Discrimination). The EEOC issued a “Right to Sue” letter on May 29, 2014. See Compl., Aug.
1, 2015, ECF No. 1, at Ex. A (Right to Sue Letter).
She filed her court complaint on August 1, 2014. It alleges violations of her rights under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq. (“Title VII”), New York
Executive Law § 296, et seq. (“NYSHRL”), and New York City Administrative Code § 8-107, et
seq. Plaintiff claimed discrimination based on race, national origin and religion, and retaliation
2
by discharge. Compl., Aug. 1, 2014, ECF No. 1. Defendants filed an answer denying the
allegations. Answer to Compl., Sept. 16, 2014, ECF No. 10.
Plaintiff’s claims under the New York City Administrative Code were dismissed on
consent of the parties. Stipulation of Dismissal, Sept. 18, 2014, ECF No. 11; Order, Sept. 30,
2014, ECF No. 12. She filed an amended complaint, adding a new claim of race discrimination
pursuant to 42 U.S.C. § 1981 (“Section 1981”), and reasserted the New York City Human Rights
Law claims that had been dismissed. Am. Compl., Dec. 17, 2014, ECF No. 20. By stipulation,
the parties again agreed to dismiss the New York City Human Rights Law claims, with
prejudice. Stipulation of Dismissal, Jan. 16, 2015, ECF No. 23; Order, May 8, 2015, ECF No.
28. Defendants filed an answer denying the allegations. Answer to Am. Compl., Jan. 26, 2015,
ECF No. 24.
The case was referred to the magistrate judge for court-annexed mediation. Order, Apr.
16, 2015, ECF No. 26. The parties were unable to resolve the dispute. See Status Report, July 8,
2015, ECF No. 34.
Plaintiff then filed a motion seeking leave to file a second Amended Complaint
(erroneously entitled “Third Amended Complaint”); the new complaint added Anthony Figeroux
as a defendant. Pl.’s Letter-Mot. to Correct/Amend/Suppl., July 9, 2015, ECF No. 36 (“Pl.’s
Mot. to Amend”). Defendants filed a letter in opposition. Defs.’ Resp. in Opp. to Pl.’s Mot.,
July 13, 2015, ECF No. 37. The magistrate judge denied plaintiff’s motion because plaintiff
lacked good cause. Order, July 16, 2015, ECF No. 40. No appeal was taken from this order.
Plaintiff’s remaining claims are: (1) national origin, race and religious discrimination
(including hostile work environment) by the Bank pursuant to Title VII and the NYSHRL; (2)
retaliation by the Bank pursuant to Title VII and the NYSHRL; (3) race discrimination by the
3
Bank pursuant to Section 1981; and (4) individual liability for ‘aiding and abetting’ by Russo
pursuant to the NYSHRL. Defs.’ 56.1 at ¶ 15.
An evidentiary hearing was conducted on March 21, 2016. See Hr’g Tr., Mar. 21, 2016.
The court ordered representatives of the bank with knowledge of the events and the individual
defendants and plaintiff to appear. Scheduling Order, Feb. 25, 2016, ECF No. 47. Plaintiff did
not appear, but the bank’s representative and individual defendants did. See Hr’g Tr., Mar. 21,
2016, at 1:10-2:4. Undisputed evidence at the hearing supported the information already
submitted on the motion demonstrating that plaintiff could not prove her claims. See generally,
id.
III.
Factual Background
A.
Relevant Individuals
Plaintiff Sherin Ahmed, formerly a citizen of Egypt, immigrated to the United States and
was naturalized in 2001. She is a Muslim who wears a hijab head covering. Decl. of Sherin
Ahmed, Jan. 22, 2016, ECF No. 45-2 (“Ahmed Decl.”), at ¶ 1.
Defendant Astoria Bank operates in Kings, Queens, Nassau and Suffolk counties. Defs.’
56.1, at ¶ 16.
Defendant Russo was Astoria Bank’s Assistant Vice-President, Multi-Family
Commercial Lending – Quality Control Manager. She has held that position for one and a half
years. In this position Russo managed the day-to-day operations of the Quality Control division
of Astoria Bank’s Multi-Family Commercial Lending department. Id. at ¶ 23. She was
plaintiff’s direct supervisor. Id. at ¶ 51. Other relevant witnesses include the following
employees:
Anthony Figeroux, First Vice President, Director, Regulatory
Compliance, id. at ¶ 24;
4
Karen DiSunno, Senior Human Resources Generalist, id. at ¶ 25;
Haider Mohamed, Supervisor of Payoff and Customer Service, id.
at ¶ 26;
Kathy Mitchell, Manager in the Loan Servicing department, id. at ¶
27;
Mohammad Jamal, Senior Loan Servicer, id. at ¶ 28; and
Lisa Ortiz, Senior Quality Control Analyst in the Multi-Family
Commercial Real Estate Lending Department – Quality Control
Unit, id. at ¶ 29.
A number of these witnesses share plaintiff’s religion. Mancher Aff. at Exs. 19 (July 31, 2015
Aff. of Haider Mohamed) and 21 (July 27, 2015 Aff. of Mohammad Jamal).
B.
Plaintiff’s Hiring and Orientation
Plaintiff was scheduled to be interviewed for a Quality Control Analyst position at
Astoria Bank on September 11, 2013, at 10:00 a.m., at the bank’s Jericho, New York location.
Defs.’ 56.1, at ¶ 44. After arriving 45 minutes late, plaintiff met with Karen DiSunno and
Maureen Russo. Id. at ¶¶ 48-50. She wore a hijab. Id. at ¶ 47. During the interview, Ms.
DiSunno provided a brief overview of Astoria Bank’s policies and procedures. Id. at ¶ 48.
Plaintiff then met with Russo, who conducted a more comprehensive inquiry. Id. at ¶ 50.
After conferring with plaintiff, Russo escorted her to the servicing area where she met coworkers who had been employed with her at another bank: Mr. Mohamed, Ms. Mitchell and Mr.
Jamal. Mr. Figeroux joined the group. Id. at ¶ 52. Plaintiff testified that Mr. Figeroux said to
her and the others, “what do you guys have intentions to do, the three of you together. Thank
god my office is in the other side of the building in case, just in case.” Id. at ¶ 53. Mr. Figeroux
denied making that comment and Mr. Mohamed, Mr. Jamal and Ms. Mitchell, all of whom were
present, denied hearing it. Id.
5
Plaintiff was selected for the Quality Control Analyst position. Id. at ¶ 54. In an email to
Ms. DiSunno, sent on the same day, defendant Russo indicated why plaintiff was the better of
two candidates then being considered:
I just wanted to let you know that I did interview with Raquel
Ryersen this morning. Although Raquel has some QC experience,
I felt that after meeting with Sherin, she would be the better
candidate for what I am looking for in QC at this time.
Mancher Aff., at Ex. 26 (E-mail from Russo to DiSunno dated Sept. 11, 2013).
On September 12, 2013, Ms. DiSunno phoned plaintiff and offered the job. Defs.’ 56.1,
at ¶ 58. During the conversation, Ms. DiSunno told plaintiff that it was the bank’s practice for
new hires to undergo an “orientation period” of 90 days during which time she would not accrue
any time-off. Plaintiff did not indicate any need for time-off during the 90-day period. Mancher
Aff. at Ex. 12 (Dec. 22, 2015 Aff. of Karen DiSunno (“DiSunno Aff.”)), at ¶ 16; id. at Ex. 27
(Sept. 12, 2013 e-mail from Karen DiSunno to Russo).
Ms. DiSunno confirmed the offer in an e-mail dated September 12, 2013. Id. at Ex. 28
(Sept. 12, 2013 e-mail from Karen DiSunno to Ahmed). It indicated that a formal welcoming
letter would be mailed to plaintiff’s home. Id. Both the e-mail and letter stated that plaintiff
would have to attend an orientation session beginning at 8:15 a.m. on September 16, 2013. Id. at
Exs. 28 and 29 (Sept. 12, 2013 letter from Karen DiSunno to Ahmed).
Plaintiff arrived late to the orientation session; she explained that she had gotten lost. She
testified that she called the bank’s Human Resources department to request assistance in getting
to the orientation and someone from the department picked her up. Id. at Ex. 14 (Aug. 14, 2015
Dep. Tr. of Sherin Ahmed), at 146:6-18. Although plaintiff was supposed to return to work
following the conclusion of the orientation, she did not do so. Id. at Ex. 15 (Dec. 24, 2015
Affidavit of Maureen Russo), at ¶ 12; DiSunno Aff., at ¶ 19.
6
C.
Alleged Discrimination
Plaintiff offers the following evidence of discrimination (mostly disputed by other
witnesses):
On the day of plaintiff’s interview, Mr. Figeroux made a comment to plaintiff and
two others of Arab or Middle Eastern ethnicity that insinuated they were all
terrorists;
On several occasions Mr. Figeroux made inappropriate jokes about plaintiff’s
race, ethnicity and religion, including telling plaintiff to take the “rag” off of her
head, referring to her hijab, that she looked better without the hijab, and that the
hijab was not appropriate for the work environment;
Russo “singled out Plaintiff on the days she arrived late for work” by lecturing
plaintiff about the importance of being on time;
Throughout her employment with Astoria Bank, Russo would speak slowly and
used gestures to communicate with plaintiff, from which plaintiff inferred that
Russo thought she did not know how to speak or understand English;
On October 11, 2013, Russo denied plaintiff’s request to take off a few hours
without pay on October 15, 2015, for a major Muslim holiday;
On October 15, 2013, while at work, plaintiff told Russo that the holiday was the
equivalent to Christmas and two other Muslim employees who were supervised
by other managers had been given the day off, but Russo refused to allow time
off;
During the same conversation, plaintiff told Russo that in preparation for the
celebration of the holiday, she sent her daughter to get her hair done. Russo
stated a woman who does her hair feels amazing and she did not understand why
Arabic women cover their heads. From the tone of the response, plaintiff
understood it to mean that Russo was annoyed, condescending and judgmental;
On November 8, 2013, during a conversation about plaintiff’s lateness, plaintiff
informed Russo that she could not use public transportation to get to the bank
because she lived too far away. Plaintiff told Russo that because of public
transportation she was late for her initial interview and Russo then said Ahmed’s
interview date, September 11, 2013, reminded her of “Arabic Terrorists and what
they did to the country”;
On or about the week of November 18, 2013, Russo refused to permit plaintiff to
take chocolate from a basket in Russo’s office, despite having permitted Ms.
Ortiz, Ms. Mitchell, Mr. Mohamed and Mr. Jamal to take the candy;
7
In early December, plaintiff was reprimanded for leaving early because of
inclement weather, even though Russo had given plaintiff permission to do so.
Pl.’s Mem. of Law in Opp’n to Defs.’ Mot. for Summ. J., Feb. 5, 2016, ECF No. 45-4 (“Opp’n
Mem.”), at 3-5.
D.
Termination
At the conclusion of the 90-day probation period, plaintiff was placed on suspension for
failing to show employability, and discharged. Mancher Aff., at Ex. 33 (Three-Month
Orientation Review). Russo explained her evaluation as including repeated instructions about
the need to improve poor performance as follows:
I have discussed with Sherin a number of times, stressing the
importance of performing her duties effectively and what was
needed to improve her poor performance and quality of work. In
many instances, she has provided wrong data on loans closed
and/or failed to complete her work as was expected. I feel that
since her hire and training, Sherin should have grasped the
requirements expected of her, however, after reviewing several
loan files, I find myself correcting errors and filling-in missing
data. I have no alternative but to terminate Sherin’s employment
effective 12/13/2013.
Id. (emphasis added). Plaintiff was effectively terminated as an employee. This conclusion is
supported by a note from Karen DiSunno of Astoria Bank’s Human Resources department on
December 17, 2013: “I explained to Sherin, based on her not successfully passing her Orientation
period she had the option to resign or to be terminated.” Id. at Ex. 37 (Dec. 17, 2013
memorandum to file).
Defendants contend that plaintiff was terminated because of her substandard probationary
performance. Russo testified that plaintiff “wasn’t understanding the work,” and that “she was
making a lot of errors.” See id. at Ex. 18 (Aug. 18, 2015 Dep. Tr. of Maureen Russo), at 45:946:25. She contends that plaintiff was late to work on a number of occasions, for which she was
reprimanded, but that she was not reprimanded for leaving work early without permission.
8
Russo also stated that plaintiff would walk away from her desk to take personal phone calls. See
id., at 85:3-15. Upon review of plaintiff’s files, Russo found “that [p]laintiff was not catching
mistakes such as missing signatures, incorrect dates and missing information required pursuant
to Bank policy and applicable laws, rules and regulations.” Defs.’ Mem. in Supp. of Defs.’ Mot.
for Summ. J., Feb. 5, 2016, ECF No. 44-7 (“Defs.’ Mem.”), at 2. Contemporary evidence of one
such error, as an example, was shown at the hearing on the motion for summary judgment. See
Hr’g Tr., Mar. 21, 2016, at Ct. Exs. 2, 3.
Plaintiff contends that she was never told of any problem with her performance.
Mancher Aff., at Ex. 14 (Aug. 14, 2015 Dep. Tr. of Sherin Ahmed), at 196:17-25; Ahmed Decl.,
at ¶ 31. Rather, plaintiff contends that she was asked to work overtime and on weekends, which
she took to mean that she was performing well, and that she never received any warnings or
immediate discipline. Ahmed Decl., at ¶ 33. At the hearing plaintiff admitted latenesses. See
Hr’g Tr., Mar. 21, 2016, at 16:20-22.
“On December 13, 2013 after [she] was terminated, [plaintiff] sent an email to Human
Resources complaining of the discrimination that [she] was enduring.” Ahmed Decl., at ¶ 35
(emphasis added). The e-mail has not been produced. There is evidence that plaintiff left a
message with Karen DiSunno in the Human Resources department on the afternoon of December
13, 2013; Ms. DiSunno received the phone message when she arrived in the office Monday
morning. See Mancher Aff., at Ex. 37.
Plaintiff testified at her deposition that she spoke with Mr. Figeroux and Russo on the
morning of December 13, 2013 to complain about alleged discrimination, but there is no
evidence to support this testimony, and plaintiff herself contradicts it in other documents, such as
her declaration and response to Defendants’ 56.1 statement. Compare Aff. of Tahanie A.
9
Aboushi, Esq. in Supp. of Pl.’s Opp’n to Defs.’ Mot. for Summ. J., Jan. 24, 2016, ECF No. 45-1
(“Aboushi Aff.”), at Ex. D (Aug. 14, 2015 Dep. Tr. of Sherin Ahmed), at 228:17-233:19
(testifying that she reported discrimination) with Ahmed Decl., at ¶ 35 (reported discrimination
after being terminated) and Defs.’ 56.1 Statement at ¶¶ 85-86 (indicating that the first time
plaintiff complained was after she was terminated).
On the morning of December 16, 2013, plaintiff e-mailed Karen DiSunno a complaint of
religious discrimination as follows:
I would like to report religious discrimination matter from my
manager Murren Russo since she fired me on the spot with out
written warning before about my performance and she also called
Arabs terrorist knowing the fact that I am arabic and she made a
comment about my head cover before. I am going to the court to
sue the bank.
Thanks
Sherin Ahmed [phone number redacted]
Mancher Aff., at Ex. 34 (Dec. 16, 2013 e-mail from Sherin Ahmed to Karen DiSunno) (errors in
original). The next day, in the afternoon of December 17, 2013, Karen DiSunno spoke with
plaintiff by telephone. Ms. DiSunno noted the following conversation about the need to
cooperate with the bank’s investigation of discrimination claims, and the fact that plaintiff failed
to cooperate by improving her work:
Today at 2:07 PM I contacted Sherin Ahmed regarding her
suspension. I explained to Sherin, based on her not successfully
passing her Orientation period she had the option to resign or to be
terminated. I started to explain to Sherin the difference in the two
statements but Sherin insisted she wanted to be terminated so she
can use this information to go to the courts with. Sherin stated she
was discriminated against and she was going to her Arabic Group
to report this incident. I re-iterated to Sherin because of her
substandard performance her employment with AFS has ended and
if she wanted to pursue a discrimination claim, I needed more
detailed information to proceed with an investigation. I asked
10
Sherin to provide me detailed information (dates, statements,
location, co-workers present, etc.). During our conversation,
Sherin stated she will email me the details. Within a few minutes
of ending our conversation, I received an email from Sherin stating
“I thought it would be a better idea to investigate the
discrimination matter when I file my case in the court because the
petition should have all the information.”
At 2:54 PM I received a call from Sherin restating she was going
to pursue a court case. Sherin also wanted to inform me the Tony
Figeroux asked her to worked overtime and felt if she was such a
poor performer why they would ask her to work overtime. She
also claimed that Maureen denied her a 1/2 day unpaid off for
religious observance. Sherin proceeded to state, she served Jury
Duty on Friday, Oct 11 (her birthday) and sent Maureen a text
message asking if she could take a 1/2 day unpaid off for religious
observance and claims Maureen responded no because Lisa was
not there. Sherin stated the saved the text messages, as a result I
asked her to forward me the text messages (copies of emails
attached).
Sherin proceeded to state, when she returned to the office she told
Maureen she was selected for 2 cases but “Lied” to the courts to
get out of serving. Sherin said, the first case was going to take 1 to
2 week and restated she lied to the court saying she could not serve
because of her religion. I restated to Sherin “you lied to the courts
to get out of jury duty/” and she responded yes and proceeded to
state the second case was for Grand Jury and they were looking for
volunteers. I reiterated to Sherin, her employment with AFS ended
because of her substandard performance and if she wanted to
pursue her discrimination claim I needed the information in
writing. Sherin responded that the conversations took place in
Maureen’s office and “she is a soft talker” so no one over heard the
conversation.
Id. at Ex. 37 (errors in original) (emphasis added). Ms. DiSunno sent a letter to plaintiff dated
December 17, 2013 stating “In furtherance to our telephone conversation of this date, your
employment as a Quality Control Analyst has been terminated effective today, December 17,
2013.” Aboushi Aff., at Ex. J (Dec. 17, 2013 letter from Karen DiSunno to Sherin Ahmed).
11
IV.
Law
A. Summary Judgment Standard
Summary judgment is appropriate where admissible evidence in the form of affidavits,
deposition transcripts, or other documentation demonstrates the absence of a genuine issue of
material fact and one party’s entitlement to judgment as a matter of law. Bank of Am., N.A. v.
Fischer, 927 F. Supp. 2d 15, 25 (E.D.N.Y. 2013) (citing Viola v. Phillips Med. Sys. of N. Am., 42
F.3d 712, 716 (2d Cir. 1994)). “The relevant governing law in each case determines which facts
are material; ‘[o]nly disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.’” Id. (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “No genuinely triable factual issue exists when
the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after
drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational
jury could find in the non-movant’s favor.” Id. (citing Chertkova v. Conn. Gen. Life Ins. Co., 92
F.3d 81, 86 (2d Cir. 1996)). Inquiries about discrimination often depend upon the state of a
plaintiff’s mind, requiring at least some consistent, objective evidence.
In discrimination cases, the inquiry into whether the plaintiff’s sex
(or race, etc.) caused the conduct at issue often requires an
assessment of individuals’ motivations and state of mind, matters
that call for a “sparing” use of the summary judgment device
because of juries’ special advantages over judges in this area.
Nonetheless, an employment discrimination plaintiff faced with a
properly supported summary judgment motion must do more than
simply show that there is some metaphysical doubt as to the
material facts. She must come forth with evidence sufficient to
allow a reasonable jury to find in her favor. Moreover, factual
allegations that might otherwise defeat a motion for summary
judgment will not be permitted to do so when they are made for the
first time in the plaintiff’s affidavit opposing summary judgment
and that affidavit contradicts her own prior deposition testimony.
12
Brown v. Henderson, 257 F.3d 246, 251-52 (2d Cir. 2001) (internal quotation omitted) (emphasis
added).
B.
Title VII
1. Disparate Treatment
Title VII protects individuals from discriminatory employment practices based on race,
color, religion, sex, or national origin. 42 U.S.C. §§ 2000e-2(a)(1)-(2). “[I]ndividuals are not
subject to liability under Title VII.” Patterson v. Cty. of Oneida, N.Y, 375 F.3d 206, 221 (citing
Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per curiam)) (emphasis added).
Suits under Title VII fall into two basic categories: “single issue motivation cases” and
“dual issue motivation cases.” Bickerstaff v. Vassar College, 196 F.3d 435, 445 (2d Cir. 1999).
Single issue motivation cases involve solely the question of whether an impermissible reason
motivated the adverse action, while dual issue motivation cases involve “both the issue of
whether the plaintiff has proved that an impermissible reason motivated the adverse action and
the additional issue of whether the defendant has proved that it would have taken the same action
for a permissible reason . . . .” Id. (quoting Fields v. N.Y. State Office of Mental Retardation &
Developmental Disabilities, 115 F.3d 116, 120 (2d Cir. 1997)).
The nature of the case determines the framework under which the Title VII claims are
evaluated. If the plaintiff asserts that her case is one of single issue motivation, then her claim is
subject to the burden-shifting framework provided in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), which initially imposes a de minimus burden of proof on the plaintiff. McLee v.
Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997) (“While the prima facie showing required of a
plaintiff in an employment discrimination lawsuit is a very modest one, [defendant’s] undisputed
evidence of plaintiff’s substandard job performance, confirmed by plaintiff’s own admissions,
preclude[s] his carrying even so minimal a burden.”).
13
According to the McDonnell Douglas framework employed in single issue motivation
cases, the plaintiff must first establish a prima facie case of discrimination by showing that: (1)
she is a member of a protected class; (2) she is competent to perform the job or is performing her
duties satisfactorily; (3) she suffered an adverse employment action; and (4) the adverse
employment action occurred under circumstances supporting an inference of discrimination
based on her membership in the protected class. See McLee, 109 F.3d at 134.
A plaintiff will only be considered to have been subjected to an adverse employment
action if she endures a “materially adverse change” in the terms and conditions of employment.
Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). For the actions
complained of to be materially adverse, a change in working conditions must be “more
disruptive than a mere inconvenience or an alteration of job responsibilities.” Id. (internal
quotation omitted). “A material adverse change is one that has an attendant negative result, a
deprivation of a position or an opportunity.” Parrish v. Sollecito, 258 F. Supp. 2d 264, 269
(S.D.N.Y. 2003) (internal quotations omitted). “[N]ot everything that makes an employee
unhappy is an actionable adverse action.” Sank v. City Univ. of N.Y., 219 F. Supp. 2d 497, 503
(S.D.N.Y. 2002) (internal quotation omitted).
Normal scheduling inconveniences, disciplinary notices, threats of disciplinary action and
scrutiny of the employee’s actions do not constitute adverse employment actions. See, e.g.,
Bennett v. Watson Wyatt & Co., 136 F. Supp. 2d 236, 248 (S.D.N.Y. 2001) (holding that
reprimands and threats of disciplinary action did not constitute adverse employment actions).
Once a plaintiff establishes a prima facie case of unlawful discrimination, the burden
shifts to the defendant to supply a legitimate nondiscriminatory reason for the adverse action.
Dawson v. Bumble & Bumble, 398 F.3d 211, 216 (2d Cir. 2005). The burden is “one of
14
production, not persuasion; it can involve no credibility assessment.” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (citation omitted). If the defendant meets its
burden of production, the McDonnell Douglas framework drops out, and the plaintiff must show
that “the legitimate reasons offered by the defendant were not its true reasons, but were a pretext
for discrimination.” Id. at 143 (citation omitted).
If the plaintiff claims that the case involves dual issue motivation, then the burdenshifting framework outlined in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), is used to
evaluate her claim. Under this framework, the plaintiff may establish a violation if she is able to
prove by a preponderance of evidence that a protected characteristic played a motivating factor,
though “direct evidence of discrimination is not required . . . .” Desert Palace, Inc. v. Costa, 539
U.S. 90, 101-02 (2003). If plaintiff is able to meet her burden, the defendant must prove that it
would have taken the same actions in the absence of an impermissible motive. See, e.g., Raskin
v. Wyatt Co., 125 F.3d 55, 61 (2d Cir. 1997).
Plaintiff and defendants agree that the McDonnell Douglas rubric applies to this case.
Defs.’ Mem., at 11-12; Opp’n Mem., at 16. Plaintiff must therefore demonstrate a prima facie
case and pretext.
2. Retaliation
Title VII makes it “an unlawful employment practice for an employer to discriminate
against any of his employees . . . because [such employee] has opposed any practice made an
unlawful employment practice by this subchapter . . . .” 42 U.S.C. § 2000e-3(a).
In the context of a motion for summary judgment, the plaintiff
must first demonstrate a prima facie case of retaliation, after which
the defendant has the burden of pointing to evidence that there was
a legitimate, nonretaliatory reason for the complained of action. If
the defendant meets its burden, the plaintiff must demonstrate that
there is sufficient potential proof for a reasonable jury to find the
15
proffered legitimate reason merely a pretext for impermissible
retaliation.
Richardson v. N.Y. State Dep’t of Corr. Servs., 180 F.3d 426, 443 (2d Cir. 1999), abrogated on
other grounds by 548 U.S. 53 (2006). A prima facie case of retaliation requires a showing of:
“(1) participation in a protected activity that is known to the defendant, (2) an employment
decision or action disadvantaging the plaintiff, and (3) a causal connection between the protected
activity and the adverse decision.” Id.; see also Sumner v. U.S. Postal Service, 899 F.2d 203,
208-09 (2d Cir. 1990) (plaintiff must show that “[s]he engaged in protected participation or
opposition under Title VII, that the employer was aware of this activity, that the employer took
adverse action against the plaintiff, and that a causal connection exists between the protected
activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse
employment action”).
To establish that a plaintiff’s activity is protected under Title VII, a plaintiff “need not
prove the merit of [her] underlying discrimination complaint, but only that [she] was acting
under a good faith, reasonable belief that a violation existed.” Sumner, 899 F.2d at 209 (citations
omitted). The filing of formal charges of discrimination are protected in addition to “informal
protests of discriminatory employment practices, including making complaints to management,
writing critical letters to customers, protesting against discrimination by industry or by society in
general, and expressing support of co-workers who have filed formal charges.” Id. (citations
omitted). There must be a causal connection between the protected activity and the adverse
employment action, which can be established indirectly with circumstantial evidence, as by
showing that the protected activity “was followed by discriminatory treatment or through
evidence of disparate treatment of employees who engaged in similar conduct or directly through
16
evidence of retaliatory animus.” Id. (citing DeCintio v. Westchester Cty. Med. Ctr., 821 F.2d
111, 115 (2d Cir. 1987), and Grant v. Bethlehem Steel, 622 F.2d 43, 46 (2d Cir. 1980)).
A party wishing to bring a claim under Title VII in federal court must first file an
administrative complaint with the EEOC and obtain a right to sue letter. “‘A district court only
has jurisdiction to hear Title VII claims that either are included in an EEOC charge or are based
on conduct subsequent to the EEOC charge which is ‘reasonably related’ to that alleged in the
EEOC charge.’” McClain v. N.Y. State Dept. of Taxation & Fin., No. 13-CV-3104, 2014 WL
4101517, at *5 (E.D.N.Y. Aug. 18, 2014) (quoting Butts v. City of N.Y. Dep’t of Hous. Pres. &
Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), superseded by statute on other grounds, Civ. Rights
Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071). A claim is “‘reasonably related if the
conduct complained of would fall within the scope of the EEOC investigation which can
reasonably be expected to grow out of the charge that was made.’” Deravin v. Kerik, 335 F.3d
195, 200-01 (2d Cir. 2003) (quoting Fitzgerald v. Henderson, 251 F.3d 345, 359-60 (2d Cir.
2001)).
The Court of Appeals for the Second Circuit has provided the following guidance in
determining whether the EEOC would be reasonably expected to explore an implied claim – that
is to say, whether it would be expected to investigate a claim not explicitly raised:
[A] claim is considered reasonably related if the conduct
complained of would fall within the scope of the EEOC
investigation which can reasonably be expected to grow out of the
charge that was made. In this inquiry, the focus should be on the
factual allegations made in the EEOC charge itself, describing the
discriminatory conduct about which a plaintiff is grieving. The
central question is whether the complaint filed with the EEOC
gave that agency adequate notice to investigate discrimination on
both bases.
17
Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006) (citations omitted) (emphasis
added).
Three situations establish that a claim may be found to be reasonably related:
1) where “the conduct complained of would fall within the ‘scope
of the EEOC investigation which can reasonably be expected to
grow out of the charge of discrimination’”; 2) where the complaint
is “one alleging retaliation by an employer against an employee for
filing an EEOC charge”; and 3) where the complaint “alleges
further incidents of discrimination carried out in precisely the same
manner alleged in the EEOC charge.”
Terry v. Ashcroft, 336 F.3d 128, 151 (2d Cir. 2003) (quoting Butts, 990 F.2d at 1402-03).
3. Hostile Work Environment
For a plaintiff to establish that she was subject to a hostile work environment in violation
of Title VII, it must be shown:
(1) that the workplace was permeated with discriminatory
intimidation that was sufficiently severe or pervasive to alter the
conditions of [his or] her work environment, and (2) that a specific
basis exists for imputing the conduct that created the hostile
environment to the employer.
Petrosino v. Bell Atlantic, 385 F.3d 210, 221 (2d Cir. 2004) (internal quotation omitted)
(emphasis added). “Generally, the same standards apply to both race-based and sex-based
hostile environment claims.” Richardson v. N.Y. State Dep’t of Corr. Servs., 180 F.3d 426, 436
n.2 (2d Cir. 1999).
“The first element of a hostile work environment claim has both an objective and
subjective component: ‘the misconduct must be severe or pervasive enough to create an
objectively hostile or abusive work environment, and the victim must also [reasonably]
subjectively perceive that [objective] environment to be abusive.’” Petrosino, 385 F.3d at 221
(quoting Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003)).
18
In assessing the atmosphere of the workplace, the court looks at the circumstances in
their entirety. Harris v. Forklift Sys., Inc., 510 U.S. 17, 22-23 (1993). Relevant factors include
“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,” but “no single factor is required.” Id. at 23. “Isolated instances
of harassment ordinarily do not rise to this level.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 570
(2d Cir. 2000), superseded on other grounds by N.Y.C. Local L. No. 85. A few isolated
instances of little weight are not enough:
In order to meet [her] burden [of proving a hostile environment
claim], the plaintiff must show more than a few isolated incidents
of racial enmity; there must be a steady barrage of opprobrious
racial comments; evidence solely of sporadic racial slurs does not
suffice.
Williams v. Cty. of Westchester, 171 F.3d 98, 100-01 (2d Cir. 1999) (internal quotations omitted)
(emphasis added). The plaintiff must demonstrate either that a single incident was
extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to
have effectively altered the conditions of her working environment. See, e.g., Perry v. Ethan
Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997); Cruz, 202 F.3d at 571 (concluding that plaintiff
had adduced evidence that she and others were subjected to “blatant racial epithets on a regular if
not constant basis” and that from this evidence “a jury reasonably might conclude that . . . [the]
working environment . . . was hostile to [plaintiff] on the basis of her race”).
A plaintiff must show that she was targeted for abusive treatment because of a protected
status. See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)
(emphasizing that Title VII prohibits only workplace harassment involving statutorily proscribed
forms of discrimination); Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (“It is
19
axiomatic that mistreatment at work, whether through subjection to a hostile environment or
through such concrete deprivations as being fired or being denied a promotion, is actionable
under Title VII only when it occurs because of an employee’s sex, or other protected
characteristic.”).
Favorable or equitable treatment of a protected group as a whole does not preclude a Title
VII claim by a member of that group. Connecticut v. Teal, 457 U.S. 440, 454-55 (1982) (“Under
Title VII, a racially balanced work force cannot immunize an employer from liability for specific
acts of discrimination. . . . It is clear that Congress never intended to give an employer license to
discriminate against some employees on the basis of race or sex merely because he favorably
treats other members of the employees’ group.”) (citations omitted).
C.
42 U.S.C. § 1981
Most of the core substantive standards that apply to claims of discriminatory conduct in
violation of Title VII are also applicable to claims of discrimination in employment in violation
of Section 1981. Patterson, 375 F.3d at 225. The significant differences, for purposes of the
instant litigation, are as follows: (1) while Title VII claims are not cognizable against individuals,
individuals may be held liable under section 1981 for certain types of discriminatory acts,
including those giving rise to a hostile work environment; and (2) although in certain
circumstances a Title VII claim may be established through proof of a defendant’s mere
negligence, without a showing of discriminatory intent, a plaintiff pursuing a claimed violation
of section 1981 must show that the discrimination was intentional. Id. at 226; see also
Michaelidis v. Berry, 502 F. App’x 94, 96 (2d Cir. 2012) (“a § 1981 claim requires proof of an
intent to discriminate based on race”).
20
D.
State Claims
Plaintiff brings state claims for discrimination and retaliation. See N.Y. Exec. Law §
296. Section 296(1)(a) of the New York Executive Law provides, in relevant part, “[i]t shall be
an unlawful discriminatory practice . . . [f]or an employer . . . because of an individual’s . . . race
. . . to discharge from employment such individual.” N.Y. Exec. Law § 296(1)(a).
Section 296(7) of the New York Executive Law provides that retaliation for
complaining about discrimination is outlawed.
It shall be an unlawful discriminatory practice for any person
engaged in any activity to which this section applies to retaliate or
discriminate against any person because he or she has opposed any
practices forbidden under this article or because he or she has filed
a complaint, testified or assisted in any proceeding under this
article.
N.Y. Exec. Law § 296(7).
Plaintiff also asserts a claim pursuant to Section 296(6) of the New York Executive Law
against Russo for aiding, abetting, inciting, compelling, and/or coercing the discriminatory
conduct in violation of Section 296(7). This section provides that “[i]t shall be an unlawful
discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of
the acts forbidden under this article, or to attempt to do so.” N.Y. Exec. Law § 296(6).
The analysis for a claim under Section 296 is identical to that for Title VII claims. See
Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005) (citing Weinstock v. Columbia
Univ., 224 F.3d 33, 42 n.1 (2d Cir. 2004)); Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95
(2d Cir. 1999); Leopold v. Baccarat, Inc., 174 F.3d 261, 264 n.1 (2d Cir. 1999) (state law).
21
V.
Application of Law to Facts
A. Disparate Treatment
A claim for disparate treatment under Title VII must center on the imposition of an
adverse action motivated by an impermissible reason. Bickerstaff, 196 F.3d at 445. The only
significant adverse action plaintiff suffered was her termination at the end of her probationary
period. Plaintiff has failed to satisfy her burden of establishing a prima facie case of disparate
treatment because she has failed to allege or to present any evidence that her termination was
motivated by discriminatory animus. See Hr’g Tr., Mar. 21, 2016, at 4:10-5:10. Plaintiff never
reported any of the purported discriminatory conduct to Ms. Russo or anyone else until the day
she was fired. Defs.’ 56.1 at ¶ 86.
Even if plaintiff’s allegations did satisfy her prima facie burden, she fails to explain why
Defendants’ proffered justification for her termination was merely pretextual, the required final
step of the McDonnell Douglas framework. A supervisor testified about plaintiff’s many
mistakes, and Defendants produced contemporaneous written documentation of one instance
where plaintiff made mistakes. See Hr’g Tr., Mar. 21, 2016, at 18:19-24:5, Ct. Exs. 2 and 3.
Plaintiff also conceded latenesses. Id. at 16:10-24. Summary judgment for Defendants is
warranted on her discrimination claims brought under Title VII and the New York State Human
Rights Law against Astoria Bank.
Plaintiff’s Section 1981 claim must also be dismissed. A claim brought pursuant to
section 1981 of title 42 requires a showing of intentional discrimination. See Patterson, 375 F.3d
at 226. Neither the evidence nor the allegations made by plaintiff demonstrates an intent by
Astoria Bank or any of its employees to discriminate against her.
22
Summary judgment is also appropriate on plaintiff’s New York State Human Rights Law
claim against Russo individually. There is no credible evidence that Russo aided or permitted
any discriminatory conduct.
B.
Retaliation
Plaintiff’s February 18, 2014 EEOC charge included her discrimination claim but not her
retaliation claim. Defendants’ contend that plaintiff’s retaliation claim is not “reasonably
related” to plaintiff’s original claim filed with the EEOC. See Defs.’ Mem., at 6-8. “‘Where the
EEOC charge alleges discrimination but not retaliation, the reasonable scope of the agency’s
investigation cannot be expected to encompass allegations of retaliatory motive.’” Friel v. Cty.
of Nassau, 947 F. Supp. 2d 239, 246 (E.D.N.Y. 2013) (citations omitted). As in Friel, “nothing
in the [EEOC] Charge provided the EEOC adequate notice to investigate possible retaliation,”
and “the claim of retaliation is not reasonably related to the allegations in the [EEOC] Charge.”
Friel, 947 F. Supp. 2d at 246 (citations omitted).
Summary judgment on plaintiff’s retaliation claim is warranted for failure to exhaust her
administrative remedies. See Hr’g Tr., Mar. 21, 2016, at 2:20-4:4.
C.
Hostile Work Environment
Plaintiff has not met her burden on her hostile work environment charge under Title VII.
In order to make out a claim, plaintiff must show that “the workplace was permeated with
discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of
[his or] her work environment, and (2) that a specific basis exists for imputing the conduct that
created the hostile environment to the employer.” Petrosino, 385 F.3d at 221 (citations omitted).
Here, plaintiff has identified only a few incidents, primarily stray comments from two
specific individuals, over a three-month period as the foundation for her claim. See supra Part
III.C. Her allegations – even if her contested testimony is accepted as true – are far from the
23
"steady barrage of opprobrious racial comments" that is required, and it does not appear that any
of the comments she unsupportedly alleges were made rise to the level of "sufficiently severe to
create a hostile work environment." Williams, 171 F.3d at 100-01; Robinson v. Dibble, 613 F.
App'x 9, 13 (2d Cir. 2015).
The objective contemporaneous evidence demonstrates that there was no discrimination
and no hostile work environment based on race, religion, or national origin.
VI.
Conclusion
Defendants' motion for summary judgment is granted. The case is dismissed without costs
or disbursements. The clerk is directed to enter judgment in favor of Defendants.
SO ,\)RDERED.
~~{hi?~
f'1ck B. Weinstein
'~enior United States District Judge
v/
Dated: March 31, 2016
Brooklyn, New York
24
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?