Pierre v. FJC Security Services, Inc.

Filing 73

MEMORANDUM & ORDER granting 68 Defendant's Motion for Summary Judgment. For the reasons discussed in the attached Memorandum and Order, the Court grants defendants motion and dismisses the Complaint in its entirety. The Clerk of Court is directed to close this case. Ordered by Judge Margo K. Brodie on 9/19/2017. (Hawkins, Salah)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------JEAN-GESPERE PIERRE,
Plaintiff,

MEMORANDUM & ORDER
15-CV-4627 (MKB)

v.
FJC SECURITY SERVICES, INC.,
Defendant.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Jean-Gespere Pierre, proceeding pro se, commenced the above-captioned action
on September 2, 2015, against Defendant FJC Security Services, Inc. (“FJC”), pursuant to Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”).1 (Compl., Docket
Entry No. 1.) Plaintiff alleges that FJC retaliated against him for reporting sex-based
discrimination occurring at FJC and discriminated against him based on his sex. (Id. at 3–4.)
FJC moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
(Def. Mot. for Summ. J (“Def. Mot.”), Docket Entry No. 68; Def. Mem. of Law in Supp. of Def.
Mot. (“Def. Mem.”), Docket Entry No. 69.) For the reasons set forth below, the Court grants
FJC’s motion and dismisses the action.
I.

Background
FJC is a company that provides security services within the New York metropolitan area.

(Decl. of Orville Morgan (“Morgan Decl.”) ¶ 4, Docket Entry No. 68-1.) On November 12,
2012, Plaintiff began working for FJC as a security officer. (Pl. Dep. 31:23–25, 32:24–33:4,
1

At a pre-motion conference on November 12, 2015, Plaintiff informed the Court that
his claims were only pursuant to Title VII and that he was not pursuing any claims under state or
city law. (Minute Entry dated Nov. 13, 2015.)

68:13, Docket Entry Nos. 68-6–68-9.) Plaintiff typically worked from 4:00 PM to 12:00 AM at
the Bellevue Men’s Shelter operated by the New York City Department of Homeless Services
(the “Shelter”). (Pl. Dep. 36:12–14, 156:2–10; Orville Decl. ¶ 3.) Plaintiff alleges that FJC
terminated his employment in retaliation for sex-based discrimination complaints he lodged
against FJC employees and discriminated against him by terminating his employment because of
his sex. (Compl. 3–4.)
a.

Alleged acts of discrimination and retaliation
i.

May 29, 2014 incident

On May 29, 2014, Plaintiff arrived at the Shelter to start his shift and was assigned to
monitor the seventh floor with Tiffany Murray, another FJC security officer. (Pl. Dep. 68:7–
69:2.) Murray monitored the east side of the seventh floor and Plaintiff monitored the west side.
(Pl. Dep. 76:17–23.) Pursuant to FJC’s policy, security officers assigned to the same floor are
supposed to inform their partners and their supervisor before taking a break and sign a logbook
to indicate that they are on break. (Pl. Dep. 70:7–71:19.) When Plaintiff was ready to take his
lunch break, he attempted to inform Murray but could not reach her. (Pl. Dep. 73:21–74:12.)
Plaintiff went to Murray’s post and saw that Supervisor Andre Dieudonne was covering Murray’s
post. (Pl. Dep. 87:12–88:10.) According to Plaintiff, Supervisor Derrick Daley was the seventh
floor supervisor that should have been covering Murray’s post, not Supervisor Dieudonne.
(Pl. Dep. 89:16–90:25.) Plaintiff checked the logbook to see if Murray was on lunch break and
saw that she had not signed out for lunch. (Pl. Dep. 80:11–13.) Plaintiff then called Murray on
her cellular telephone but she did not answer. (Pl. Dep. 70:7–71:19.) Although lunch breaks
were limited to thirty minutes, Murray had been gone for more than thirty minutes and Plaintiff
could not take his break until she returned. (Pl. Dep. 94:14–19, 95:5–9.)

2

Murray subsequently returned, told Plaintiff that she was at lunch and “g[a]ve [Plaintiff]
trouble” for attempting to contact her during her lunch break. (Pl. Dep. 74:9–12.) Plaintiff
reported Murray’s conduct to Supervisor Dianne Lloyd and Supervisor Daley, both of whom
stated that they would address the issues with Murray. (Pl. Dep. 77:14–78:22, 81:11–20, 96:23–
97:8.) Supervisor Lloyd and Supervisor Dennis Francis spoke to Murray but took no
disciplinary action against Murray. (Pl. Dep. 84:2–86:2.) Plaintiff believes that none of the
supervisors disciplined Murray because she was a woman and they were interested in dating her.
(Pl. Dep. 80:23–81:3, 92:3–8, 193:12–20.)
Based on the foregoing, Plaintiff told Captain Natasha Drew, FJC’s lead supervisor for
the Shelter, that he no longer wanted to work with Murray. (Pl. Dep. 98:4–6.) Captain Drew
told Plaintiff that he no longer had to work with Murray. (Pl. Dep. 106:11–14, 107:1–25.) To
avoid any further interactions with Murray, Plaintiff would arrive for his shift a few minutes late.
(Pl. Dep. 102:21–103:6.)
ii.

June of 2014 incident

In June of 2014, Supervisor Lloyd informed all FJC security officers that they were
required to display their security officer identification and credentials while at work, and that
they would be prohibited from working without their identification and credentials. (Pl. Dep.
154:17–23.) However, if an officer forgot to bring his or her credentials, the supervisors would
allow the officer to display a photocopy if the officer was a friend of the supervisor. (Pl. Dep.
155:3–21, 158:12–21, 159:12–160:10.) On a day in June of 2014, Supervisor Daley asked
Plaintiff to display his security officer identification and credentials while at work. (Pl. Dep.
153:16–20, 154:6–13.) Plaintiff believes that Supervisor Daley made the request in retaliation
for Plaintiff reporting Murray’s May 29, 2014 conduct. (Pl. Dep. 152:25–153:2, 171:5–7.)

3

iii. July 31, 2014 incident
Plaintiff had no further interactions with Murray from May 29 through July 30, 2014.
(Pl. Dep. 103:25–104:5, 111:22–25.) On July 31, 2014, Plaintiff, still seeking to avoid Murray,
arrived for his 4:00 PM shift a few minutes late. (Pl. Dep. 102:21–103:6.) While Plaintiff was in
the employee locker room putting on his uniform, Murray entered the locker room and instructed
Plaintiff to “let her pass.” (Pl. Dep. 103:8–13.) Plaintiff allowed her to pass. (Pl. Dep. 103:13.)
Plaintiff checked in to start his shift and Supervisor Francis informed him that he was
partnered with Murray. (Pl. Dep. 119:20–23.) Plaintiff told Supervisor Francis that he and
Murray could not be assigned to work together, but Supervisor Francis ignored Plaintiff and told
him to “go work with her.” (Pl. Dep. 119:24–120:8.) When lunch time arrived, Plaintiff called
his supervisor to inform the supervisor that he was taking his lunch break. (Pl. Dep. 121:6–10.)
The supervisor asked Plaintiff if Murray was at her post and Plaintiff responded that she was.
(Pl. Dep. 121:7–9.) Plaintiff’s supervisor gave him permission to take his lunch break. (Pl. Dep.
121:9–10.) However, when Plaintiff went to inform Murray that he was taking his lunch break,
Murray was not at her post. (Pl. Dep. 121:11–14.) Plaintiff checked the logbook and saw that
Murray was on her lunch break. (Pl. Dep. 120:22–121:2.) As a result, Plaintiff had to wait for
Murray to return from lunch before he could take his lunch break. (Pl. 121:20–23.)
After Murray returned from her lunch break, Plaintiff attempted to sign out for lunch in
the logbook but Murray “pulled [the] book” from Plaintiff’s hands and, although the time for her
lunch break had elapsed, she said that “[she] wasn’t finished” and that “[her] lunch was not over
yet.” (Pl. Dep. 122:16–123:14.) Plaintiff did not respond to Murray’s actions. (Pl. Dep. 123:7–
9.) Instead, Plaintiff reported the incident to Supervisor Francis, who decided to assign Plaintiff
to work in a different area of the Shelter where Murray was not assigned to work. (Pl. Dep.

4

123:21–124:5, 124:20–22.) There was no change in Plaintiff’s shift or salary as a result of the
reassignment. (Pl. Dep. 125:9–17.)
Plaintiff reported the logbook and locker room incidents with Murray to the New York
City Police Department (“NYPD”), seeking an order of protection against Murray because she
“assault[ed] and harass[ed]” him by pulling the book from his hands and he believed that she
wanted to fight him. (Pl. Dep. 122:16–21, 127:4–11; Police Report, Docket Entry No. 68-17.)
The police officers instructed Plaintiff to call the police if Murray “attack[ed] him again.”
(Pl. Dep. 129:14–18.)
iv. August 15, 2014 incident
On August 15, 2014, Supervisor Lloyd approached Plaintiff at work and asked what type
of report he had filed with the NYPD. (Pl. Dep. 132:16–20.) Plaintiff told Supervisor Lloyd that
she should not be speaking to Plaintiff because he had filed police reports against her and other
FJC employees. (Pl. Dep. 133:21–134:5.) Supervisor Lloyd then attempted to shake Plaintiff’s
hand, and in response Plaintiff became “upset,” replied that Supervisor Lloyd should “not shake
[his] hand,” asked Supervisor Lloyd why she “continued to [try to shake his hand] everyday,”
and yelled at Supervisor Lloyd for following him and attempting to talk to him. (Pl. Dep.
133:25–134:6, 137:3–22.) Because of Plaintiff’s conduct toward Supervisor Lloyd, Plaintiff
received a disciplinary notice. (Employee Violation Notices at 9, Docket Entry No. 68-10.)2
Plaintiff also believes that Supervisor Lloyd and Captain Drew subsequently assigned him to a
post near the supervisors’ office in retaliation for him filing a police report. (Pl. Dep. 143:2–25,
147:3–10.) According to Plaintiff, he also reported Supervisor Lloyd’s conduct to Orville
Morgan, FJC’s Senior Director of Operations who oversaw FJC’s operations at the Shelter. (Pl.

2

Because the Employee Violation Notices are not consecutively paginated, the Court
refers to the electronic document filing system (“ECF”) pagination.
5

Dep. 170:9–13.) Plaintiff asserts that Director Morgan informed him that Supervisor Lloyd no
longer worked for FJC. (Pl. Dep. 170:9–13.) Director Morgan denies that he told Plaintiff that
Supervisor Lloyd stopped working for FJC. (Morgan Decl. ¶ 13.)
v.

November 8, 2014 incident

Between August and early November of 2014, Plaintiff had no problems at work.
(Pl. Dep. 171:18–172:4.) On November 8, 2014, Plaintiff arrived at the Shelter to start his shift
and observed that Supervisor Lloyd was there in uniform. (Pl. Dep. 172:4–19, 179:18–22.)
Toward the end of Plaintiff’s shift, Supervisor Lloyd informed several security officers, including
Plaintiff, over FJC’s handheld employee radios that they must work past the end of their shifts
because their replacements were running late. (Pl. 177:18–19, 179:23–25.)
According to Plaintiff, he radioed in reply that he no longer “recongnize[d] [Supervisor
Lloyd] as [his] supervisor” because she was fired and questioned why Supervisor Lloyd was
giving him orders. (Pl. Dep. 176:4–14, 177:19–24, 179:25–180:6.) Plaintiff then proceeded
from his post to the supervisors’ office, where Supervisor Lloyd, Captain Drew and a few other
FJC employees were located, and “curs[ing]” as well as “speaking very loud[ly],” told
Supervisor Lloyd that he had filed “confidential reports” against her. (Pl. Dep. 180:10–22,
183:3–5, 185:5–9, 199:3–7.) When Plaintiff was near Supervisor Lloyd’s location, the
supervisors and employees around Supervisor Lloyd shielded her because they believed Plaintiff
intended to fight her. (Pl. Dep. 183:3–13.) Plaintiff denies that he intended to fight Supervisor
Lloyd. (Pl. Dep. 181:7–10.) Because of Plaintiff’s conduct toward Supervisor Lloyd, the
Shelter’s police escorted Plaintiff out of the Shelter. (Pl. Dep. 189:2–24.) Plaintiff believes that
Captain Drew allowed Supervisor Lloyd to return to work in retaliation for Plaintiff allegedly
causing Supervisor Lloyd’s termination. (Pl. Dep. 174:4–11.)

6

Supervisor Lloyd completed an incident report the day of the November 8, 2014 incident.
(Incident Reports 95–97, Docket Entry No. 68-11.) According to Supervisor Lloyd, she
informed several security officers, including Plaintiff, that they had to stay past the end of their
shifts to cover for the replacement security officers who were running late. (Id. at 95.)
Supervisor Lloyd instructed the officers that if they had issues staying late, they should discuss
the issues with her in the office and not over the radio. (Id.) Plaintiff disregarded Supervisor
Lloyd’s instruction and began yelling over the radio that he “d[id]n’t work for [Supervisor
Lloyd],” that Supervisor Lloyd should not “call [Plaintiff’s] [expletive] name,” that Supervisor
Lloyd was a “sex offender” and a “criminal” and “put false reports in [Plaintiff’s] name.” (Id.)
Supervisor Lloyd notified Captain Drew of the situation as it was ongoing. (Id.)
Supervisor Lloyd subsequently observed Plaintiff “coming down the hall toward the []
office.” (Id. at 96.) After Plaintiff entered the office, he approached Supervisor Lloyd at her
desk, “pointed his fingers in [her] face” and again yelled that he “d[id]n’t work for [Supervisor
Lloyd],” that Supervisor Lloyd should not “call [Plaintiff’s] [expletive] name,” and that
Supervisor Lloyd was a “sex offender” and a “criminal.” (Id.) Supervisors Charlene Dunlop,
Andrea Brito, Dieudonne and several security officers restrained Plaintiff and forced him out of
the office. (Id.) Captain Drew requested the assistance of the Shelter’s police. (Id. at 97.)
Plaintiff forced his way back into the office and proceeded toward Supervisor Lloyd in “a very
threatening manner,” but before he reached Supervisor Lloyd, Supervisors Dunlop and
Dieudonne corralled Plaintiff and removed him from the office. (Id.) Shortly thereafter, the
Shelter’s police officers arrived, escorted Plaintiff to the locker room to retrieve his belongings
and then escorted him out of the Shelter. (Id.) Captain Drew, Supervisors Dunlop, Dieudonne,
and Brito, as well as two security officers who were present in the office, also completed incident
reports the day of the November 8, 2014 incident. (Incident Reports 89–94, 98–109.) Their
7

reports were consistent with Supervisor Lloyd’s incident report. (Compare Incident Reports 95–
97 with Incident Reports 89–94, 98–109.)
vi. Plaintiff’s termination
On November 12, 2014, one of the managers of the Shelter emailed Director Morgan and
informed him that Plaintiff was banned from working at the Shelter in the future due to his
conduct on November 8, 2014. (Email dated Nov. 12, 2014, Docket Entry No. 68-12.) Based on
the Shelter’s ban and the fact that Plaintiff’s conduct on November 8, 2014, violated several FJC
policies, FJC terminated Plaintiff’s employment. (Morgan Decl. ¶¶ 7–9, 20; FJC Employee
Code of Conduct, Docket Entry No. 68-4.) Jennifer Stone, FJC’s Director of Human Resources,
made the decision to terminate Plaintiff’s employment. (Morgan Decl. ¶ 20.)
After learning of his termination, Plaintiff wrote a letter to FJC in which he stated that he
was terminated because Supervisor Lloyd, Captain Drew and Murray plotted against him
because they were all intimate or wanted to be intimate with each other. (Pl. Letter dated Dec.
16, 2014, Docket Entry No. 68-18.) Plaintiff stated in the letter that:
[Captain] Drew helped [Supervisor] Lloyd to come back in secret,
but on November 8, 2014, [Supervisor] Lloyd wanted to show her
power [and] told me, I was [required to work] late. I replied by
radio, “You cannot call my name for holding, because [for] [three]
months nobody [has] recognized you as [a] [s]upervisor [], don’t call
my name, [] you are a criminal who used my name falsely in a false
statement to make a sexual [proposal] [to] Tiffany Murray.”
(Id.) Plaintiff also stated that FJC terminated him “without notice” and that he went to Director
Stone’s office and requested a statement of reasons regarding his termination, but Director Stone
refused his request. (Id.)
b.

Plaintiff’s complaints to the New State Division of Human of Rights

During the course of Plaintiff’s employment with FJC, Plaintiff filed two complaints with
the New York State Division of Human Rights (“Human Rights Division”). On June 18, 2014,
8

Plaintiff filed a complaint, alleging that FJC discriminated against him based on his sex because
on May 29, 2014, FJC “[r]efused to accept [his] report” about a “fire in the building.” (Pl. June
18, 2014 Human Rights Division Compl. 1–6, Docket Entry No. 68-13.) Plaintiff further alleged
that Supervisors Daley and Dieudonne discriminated against him based on his sex because when
he “was assigned [to work] [o]n the [seventh] floor, [his] partner was female . . . [and] she never
obey[ed] the policy of FJC [], [which stated that] no guard or officer [should] leave their post
without notify[ing] base, writing in [the] logbook and tell[ing] his/her partner.” (Id. at 8.)
Plaintiff also alleged that “Supervisor [] Dieudonne cover[ed] [his partner’s] absence when she
left” and when he “explained what happened” to “Supervisor [] Daley,” he was ignored and his
partner was never instructed to follow policy or disciplined for failing to do so. 3 (Id.)
Plaintiff filed his second Human Rights Division complaint on August 5, 2014, alleging
that on July 31, 2014, Supervisors Lloyd and Francis sexually harassed him. (Pl. Aug. 5, 2014
Human Rights Division Compl. 1–5, Docket Entry No. 68-15.) Plaintiff alleged that “Supervisor
[] Lloyd . . . offered [his] co-worker help secretly” and the co-worker subsequently “came [to]
[his] locker [] to trouble [him].” (Id. at 8.) Plaintiff identified the co-worker as “Tiffany
Murray.” (Id.) On February 3, 2015, the Human Rights Division found that there was “no
probable cause to believe that [FJC] engaged in or is engaging in the unlawful discriminatory
practice complained of.” (Human Rights Division Decision, annexed to Pl. Mem. in Opp’n to
Def. Mot. (“Pl. Mem.”) at 158–61, Docket Entry No. 67.)4

3

The record does not contain any information regarding the outcome of Plaintiff’s June
18, 2014 complaint to the Human Rights Division.
4

Because Plaintiff’s Memorandum and attachments are not consecutively paginated, the
Court refers to the ECF pagination.
9

II. Discussion
a.

Standard of review

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); Davis v. Shah, 821 F.3d 231,
243 (2d Cir. 2016); see also Cortes v. MTA NYC Transit, 802 F.3d 226, 230 (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.

Title VII claims

FJC argues that the Court should dismiss Plaintiff’s claims because Plaintiff fails to show
that FJC either retaliated or discriminated against him based on his sex. (Def. Mem. 9–22.)
Plaintiff argues that the FJC supervisors retaliated against him for reporting the sex-based
discriminatory conduct of Murray and Supervisors Lloyd, Daley, Dieudonne and Francis to FJC,

10

the NYPD and the Human Rights Division.5 (Pl. Mem. 14–15, 17, 20, 22, 28–29, 32–33;
Pl. Sur-reply Mem. of Law in Opp’n to Def. Mot. (“Pl. Sur-reply”) 3–5, Docket Entry No. 71.)
Plaintiff also argues that he was discriminated against based on his sex because, unlike Murray,
he was not a woman for whom the supervisors held a romantic interest.6 (Pl. Mem. 14–15, 17,
20, 22, 28–29, 32–33; Pl. Sur-reply 3–5.) The Court separately addresses Plaintiff’s retaliation
and discrimination claims below.

5

Because Plaintiff is proceeding pro se, the Court must construe Plaintiff’s papers “to
make the strongest arguments they suggest.” See Wiley v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir.
2015). A Title VII retaliation claim requires showing that an employer retaliated against an
employee for engaging in a protected activity. See Vega v. Hempstead Union Free Sch. Dist.,
801 F.3d 72, 84 (2d Cir. 2015) (discussing the elements of Title VII retaliation claims, which
include “participation in a protected activity”). Although Plaintiff argues that he was retaliated
against for lodging complaints about his arguments with Murray, any of Plaintiff’s complaints
based on his arguments with Murray are not activities that are entitled to protection from
retaliation under Title VII. See Lizardo v. Denny’s Inc., 270 F.3d 94, 106 (2d Cir. 2001)
(holding that the plaintiffs did not engage in “a protected activity because they were complaining
about the conduct of security officers during [a] fight,” not “about discrimination”) Therefore,
the Court construes Plaintiff’s retaliation claim as an allegation that FJC retaliated against him
for lodging complaints against Murray and the supervisors regarding their alleged sex-based
discrimination, because if Plaintiff establishes that he complained that FJC strictly enforced its
policies against Plaintiff, and not against Murray, only because Plaintiff is a man and Murray is a
woman, the complaints qualify as protected activity. See Singer v. Tuffey, 66 F. App’x 232, 235
(2d Cir. 2003) (“[The] plaintiff’s complaints to [the defendants] each alleged that she was being
discriminated against on the basis of her sex, and as such constitute Title VII protected
activities.” (citing Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000))).
6

Construing Plaintiff’s papers to make the strongest arguments they suggest, the Court
considers Plaintiff’s termination as the adverse action taken by FJC against Plaintiff for both the
retaliation and discrimination claims. However, the alleged acts of assigning Plaintiff to a
different section of the Shelter, placing Plaintiff on a post near the supervisors’ office, partnering
Plaintiff with Murray, and requesting Plaintiff’s security officer identification and credentials do
not qualify as adverse actions since those acts did not result in any material changes to Plaintiff’s
employment. See Sanders v. N.Y.C. Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004) (“To
be materially adverse, a change in working conditions must be more disruptive than a mere
inconvenience or an alteration of job responsibilities. Examples of such a change include
termination of employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly diminished material responsibilities,
or other indices . . . unique to a particular situation.” (citations and internal quotation marks
omitted)).
11

i.

Plaintiff’s retaliation claim

FJC argues that Plaintiff’s retaliation claims fail because Plaintiff never engaged in
protected activity by opposing an unlawful employment practice. (Def. Mem. 17–18.) Plaintiff
argues that reporting the sex-based discriminatory conduct of Murray and Supervisors Lloyd,
Daley, Dieudonne and Francis is a protected activity. (Pl. Mem. 14–15, 17, 20, 22, 28–29, 32–
33; Pl. Sur-reply 3–5.)
Title VII prohibits retaliation against an employee who “has opposed any practice [that
is] made an unlawful employment practice” under Title VII. 42 U.S.C. § 2000e-(3)(a).
Retaliation claims are analyzed under the three-stage, burden-shifting framework established by
the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Littlejohn v.
City of New York, 795 F.3d 297, 315 (2d Cir. 2015) (citing Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133 (2000)) (discussing burden-shifting); St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 506 (1993) (citing Tex. Dep’t of Cty. Affairs v. Burdine, 450 U.S. 248, 253–55 (1981)).
Under that framework, a plaintiff must first establish a prima facie case of retaliation. St. Mary’s
Honor Ctr., 509 U.S. at 506; Campbell v. N.Y.C. Transit Auth., 662 F. App’x 57, 59 (2d Cir.
2016); Kirkland v. Cablevision Sys., 760 F. 3d 223, 225 (2d Cir. 2014). A plaintiff’s burden at
this stage is “minimal.” Holcomb v. Iona Coll., 521 F.3d 130, 139 (2d Cir. 2008) (quoting
St. Mary’s Honor Ctr., 509 U.S. at 506). If a plaintiff meets her burden at this stage, a
“temporary presumption” of retaliation arises, and the burden shifts to the defendant employer to
articulate a legitimate, non-retaliatory reason for the challenged conduct. Vega v. Hempstead
Union Free Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2015) (quoting Littlejohn, 795 F.3d at 307, 311).
If the defendant-employer articulates such a reason, the burden shifts back to the plaintiffemployee to show that the defendant-employer’s reason was pretext. Id. at 83.

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To establish a prima facie case of discriminatory 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. at 316 (quoting Hicks v. Baines, 593 F.3d 159, 164
(2d Cir. 2010)).
“An employee’s complaint may qualify as protected activity, satisfying the first
element” of a prima facie case of retaliation “so long as the employee has a good faith,
reasonable belief that the underlying challenged actions of the employer violated the law.” Kelly
v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (citation
omitted). In a Title VII retaliation case, “the plaintiff is required to have a good faith reasonable
belief that []he was opposing an employment practice made unlawful by Title VII.” Id. (citation
and internal quotation marks omitted). “The reasonableness of the plaintiff’s belief is to be
assessed in light of the totality of the circumstances.” Id. (citation omitted). “Mere subjective
good faith belief is insufficient; the belief must be reasonable and characterized by objective
good faith.” Id. at 16 (alteration and citation omitted). Therefore, an employee lacks a
reasonable belief that he is opposing an unlawful employment practice if the opposition is
“directed at something . . . that is not properly within the definition of an unlawful employment
practice.” Id. at 15 (citation omitted).
The Second Circuit “has long [] rejected ‘paramour preference’ claims, which depend on
the proposition that the phrase ‘discrimination on the basis of sex’ encompasses disparate
treatment premised not on one’s gender, but rather on a romantic relationship between an
employer and a person preferentially treated.” Id. at 14 (quoting DeCintio v. Westchester Cty.
Med. Ctr., 807 F.2d 304, 306 (2d Cir. 1986)); see also Fattoruso v. Hilton Grand Vacations Co.,
LLC, 525 F. App’x 26, 28 (2d Cir. 2013) (“We have squarely held that a ‘paramour preference’
13

does not constitute unlawful discrimination based on gender.” (citing Kelly, 716 F.3d at 14));
Marcus v. Leviton Mfg. Co., Inc., No. 15-CV-656, 2016 WL 74415, at *5 (E.D.N.Y. Jan. 6, 2016)
(“It is well settled that favoritism of an employee based upon a consensual romantic relationship,
frequently referred to as ‘the paramour preference’, is not actionable under Title VII . . . as a
form of gender discrimination.” (citing Kelly, 716 F.3d at 14)); Grant v. United Cerebral Palsy of
N.Y.C., Inc., No. 11-CV-18, 2014 WL 902638, at *6 (S.D.N.Y. Mar. 7, 2014) (“This claim fails
because it is not actionable under Title VII. The Second Circuit has long since rejected paramour
preference claims, which depend on the proposition that . . . discrimination on the basis of sex
encompasses disparate treatment premised not on one’s gender, but rather on a romantic
relationship between an employer and a person preferentially treated.” (alteration and internal
quotation marks omitted) (citing Kelly, 716 F.3d at 14)); Kranser v. HSH Nordbank AG, 680
F. Supp. 2d 502, 520 (S.D.N.Y. 2010) (“[T]he law is clear that preferential treatment of a
paramour is not unlawful because it does not discriminate against anyone on account of his or
her gender.” (citing DeCintio, 807 F.3d at 308)). Thus, a plaintiff’s Title VII retaliation claims
are not actionable where the alleged protected activity are complaints about the plaintiff’s alleged
mistreatment and a co-worker’s preferential treatment due to another employee’s romantic
interest in the co-worker, as such complaints are not opposing the unlawful employment practice
of sex-based discrimination. See Kelly, 716 F.3d at 14 (Title VII retaliation claims fail where
they are based on a “paramour preference,” because such discrimination is not “‘discrimination
on the basis of sex,’ but rather on a romantic relationship between an employer and a person
preferentially treated. It is axiomatic that in order to establish a sex-based [claim] under Title
VII, a plaintiff must demonstrate that the conduct occurred because of her sex.” (alteration and
citation omitted)); see also Fattoruso, 525 F. App’x at 28.

14

Based on Plaintiff’s complaint, Plaintiff’s motion papers and the record before the Court,
Plaintiff is arguing that he was subjected to retaliatory action for reporting Murray’s conduct and
the supervisors’ alleged preferential treatment toward Murray because they were romantically
interested in Murray. (See, e.g., Compl. 4 (“The cause of my summons was [Supervisor]
Lloyd’s . . . proposed sexual [relationship] with [a] female security guard named Tiffany Murray,
[who] assaulted me [and] th[at] [Supervisor] Lloyd [] transferred [and] fired me.”); Pl. Mem. 14
(“[T]he nature of the allegation [is] sex discrimination retaliation by [S]upervisor [] Daley,” who
wanted a romantic relationship “with guard Tiffany Murray for sex [] to get [] [P]laintiff out of
his job. . . . Tiffany Murray made another sex-proposal with [S]upervisor [] Lloyd.”); Pl. Dep.
109:23–110:2 (“The big thing happen[ed] [because] [Supervisor] Lloyd . . . wanted the lady to
become her girlfriend.”).) Because Plaintiff alleges that he was discriminated against based on
the supervisors’ romantic interest in Murray, Plaintiff’s retaliation claim fails to establish that he
opposed “an employment practice made unlawful by Title VII.” Kelly, 716 F.3d at 14; see also
Fattoruso, 525 F. App’x at 28; Marcus, 2016 WL 74415, at *5; Grant, 2014 WL 902638, at *6;
Kranser, 680 F. Supp. 2d at 520; cf. Day v. City of New York, No. 15-CV-4399, 2015 WL
10530081, at *11–12 (S.D.N.Y. Nov. 30, 2015) (“Kelly . . . dealt with a complaint of
‘paramour preference,’ not a complaint of differential treatment of male versus female
employees.”), report and recommendation adopted, 2016 WL 1171584, (S.D.N.Y. Mar. 22,
2016).
Accordingly, the Court grants FJC’s motion as to Plaintiff’s retaliation claims.7

7

Even assuming Plaintiff had established a prima facie case of Title VII retaliation,
Plaintiff’s claims nevertheless fail because FJC has presented a legitimate, non-retaliatory reason
for terminating Plaintiff’s employment — Plaintiff’s conduct toward Supervisor Lloyd on
November 8, 2014, which violated FJC’s policies — and Plaintiff fails to show that FJC’s
proffered reason was pretext. (Morgan Decl. ¶¶ 7–9, 20; FJC Employee Code of Conduct.) The
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ii.

Plaintiff’s discrimination claim

FJC argues that Plaintiff fails to establish a Title VII discrimination claim because his
claim is based on his disagreements with Murray and the supervisors’ alleged preferential
treatment toward Murray. (Def. Mem. 12–14.) Plaintiff argues that FJC discriminated against
him because he was not a woman with whom the supervisors’ were romantically interested.
(Pl. Mem. 14–15, 17, 20, 22, 28–29, 32–33; Pl. Sur-reply 3–5.)
Title VII discrimination claims are analyzed under the McDonnell Douglas burdenshifting framework outlined above. See Littlejohn, 795 F.3d at 307–08. To establish an
employment discrimination claim, Title VII requires that “a plaintiff must first establish a prima
facie case of discrimination by showing that: ‘(1) []he is a member of a protected class; (2) []he
is qualified for h[is] 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 (quoting
Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000)).
As discussed above, the alleged discrimination Plaintiff suffered was not based on his
sex, but instead was based on the supervisors’ alleged preferential treatment of Murray because
of their romantic interest in her. For the same reasons, Plaintiff fails to establish a prima facie

Incident Reports and Plaintiff’s own admissions establish that Plaintiff yelled and cursed at
Supervisor Lloyd and then went to the supervisors’ office and yelled at, cursed at, and
approached Supervisor Lloyd as if he was going to fight her. (Incident Reports 89–109; Pl. Dep.
176:4–14, 177:19–24, 179:25–180:22, 183:3–13, 185:5–9, 199:3–7; Pl. Letter dated Dec. 16,
2014.) Plaintiff therefore fails to show that the proffered reason for his termination was pretext.
See Caruso v. Bon Secours Charity Health Sys. Inc., --- F. App’x ---, ---, 2017 WL 3638203,
at *2 (2d Cir. Aug. 24, 2017) (holding that the plaintiff “failed to offer sufficient evidence of
pretext” because the plaintiff “offered no evidence that her termination was caused by her
months-old complaint, rather than by the physical altercation that violated [the defendant’s]
standards of conduct and immediately preceded her termination”); Sanchez v. Conn. Nat. Gas
Co., 421 F. App’x 33, 35 (2d Cir. 2011) (holding that a plaintiff failed to show pretext where his
termination was based on his “violat[ions] of multiple company policies”).
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case of discrimination as Plaintiff cannot establish that he was discriminated against based on his
sex. See Kelly, 716 F.3d at 14 (Title VII discrimination and retaliation claims fail where they are
based on a “paramour preference,” because such discrimination is not “‘discrimination on the
basis of sex,’ but rather on a romantic relationship between an employer and a person
preferentially treated. It is axiomatic that in order to establish a sex-based [claim] under Title
VII, a plaintiff must demonstrate that the conduct occurred because of her sex.” (alteration and
citations omitted).
Accordingly, the Court grants FJC’s motion as to Plaintiff’s discrimination claims.8
c.

Leave to amend

“Although district judges should, as a general matter, liberally permit pro se litigants to
amend their pleadings, leave to amend need not be granted when amendment would be futile.”
Terry v. Incorporated Village of Patchogue, 826 F.3d 631, 633 (2d Cir. 2016) (citing Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). Granting leave to amend is futile where “[t]he
deficiency in [the] complaint” is not due to “a lack of adequate factual allegations but rather a
lack of entitlement to the relief sought.” Wright v. Semple, --- F. App’x ---, ---, 2017 WL
3722711, at *2 (2d Cir. Aug. 29, 2017); see also Chen v. City of New York, 622 F. App’x 66, 68
(2d Cir. 2015) (holding that denying leave to amend is proper where “the complaint did not
‘suggest that the plaintiff has a claim that he has inadequately or inartfully pleaded’” (alterations
omitted) (quoting Cuoco, 222 F.3d at 112)). As discussed above, Plaintiff’s claims fail because
paramour preference claims are not actionable under Title VII and, alternatively, Plaintiff cannot

8

In addition, as with the retaliation claims, even assuming Plaintiff established a prima
facie case of discrimination, Plaintiff cannot establish that FJC’s proffered reason for terminating
him was pretext. See note 9, supra; see also Caruso, --- F. App’x at ---, 2017 WL 3638203,
at *2 (holding that the plaintiff’s discrimination claim failed for the same reason as plaintiff’s
retaliation claim — plaintiff’s failure to establish that the defendant’s proffered reason for
plaintiff’s termination was pretext).
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establish that FJC’s proffered reason for terminating him was pretext. Therefore, granting
Plaintiff leave to amend would be futile as the defect with his claims is not “a lack of adequate
factual allegations,” see Wright, --- F. App’x ---, 2017 WL 3722711, at *2, but that “the
[C]omplaint d[oes] not ‘suggest that the plaintiff has a claim that he has inadequately or
inartfully pleaded,’” see Chen, 622 F. App’x at 68 (quoting Cuoco, 222 F.3d at 112)).
III. Conclusion
For the foregoing reasons, the Court grants FJC’s motion and dismisses the Complaint in
its entirety. The Clerk of Court is directed to close this case.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: September 19, 2017
Brooklyn, New York

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