Vohra v. American Integrated Security Group et al
Filing
60
MEMORANDUM DECISION AND ORDER. The defendants' motion for summary judgment on the plaintiffs discrimination claims pursuant to Title VII, the NYSHRL and the NYCHRL is denied and their motion on the plaintiffs retaliation claims pursuant to the same statutes is granted. To be clear, Counts One through Nine of the Amended Complaint will proceed to trial and Counts Ten through Twelve are dismissed. Ordered by Judge Ann M. Donnelly on 7/22/2019. (Greene, Donna)
FILED
IN CLERK'S OFFICE
US DISTRICT COURT E.D.NY.
5 JUL 2^.2015 5
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X
BROOKLYN OFFICE
GAGAN VOHRA,
Plaintiff,
- against-
MEMORANDUM DECISION
AND ORDER
16-CV-5374(AMD)
(SMG)
AMERICAN INTEGRATED SECURITY GROUP,
et al.y
Defendants.
-X
ANN M.DONNELLY,United States District Judge:
On September 27,2016, the plaintiff brought this action against his former employers,
alleging federal and state claims for discrimination and retaliation. (ECF No. 1
1-5, 9-23.)
On February 4, 2019, the defendants moved for summary judgment on all of the plaintiffs
claims. (ECF No. 47.) For the reasons that follow, the defendants' motion on the plaintiffs
discrimination claims is denied and their motion on the plaintiffs retaliation claims is granted.
BACKGROUND'
The plaintiff had three interviews for the position of Chief Financial Officer(CFO) with
corporate defendant American Integrated Security Group(AISG)in the spring of 2015. (ECF
No.53 K 10.) Defendant Levy Acs, AISG's President and Chief Technology Officer, was
present for all three interviews and defendant Avi Jacobi, the Chief Executive Officer, was there
' Unless otherwise noted, the factual background is based on my review of the entire record, including the
parties' 56.1 statements. I construe the facts in the light most favorable to the plaintiff, the non-moving
party. See Capobianco v. Cily ofNew York, 422 F.3d 47, 50 n.1 (2d Cir. 2005).
for one interview.^ (ECF No,47-2 Tffl 1, 5; ECF No.47-4 1.) During the interviews, the
plaintiff and the defendants discussed the terms ofthe plaintiffs possible employment; the
defendants said that the plaintiff could hire his own staff and have a private office, but did not
specify when either ofthose things would happen. (ECF No.53 H 10; ECF No.59 H 22.)
According to the plaintiff, Acs and Jacobi promised that current AISG employees would report
to him until he was able to hire his own support staff. (ECF No.59
20, 21.)
The defendants hired the plaintiff out of a field offive or six candidates, effective May
11,2015. (ECF No.591(3, 9, 10, 53; ECF No. 55-28, Acs Dep. Tr. 23:17-25, 26:12-23.) The
CFO position was one ofthree executive officer positions at AISG; Acs and Jacobi were the
other two executives. (ECF No. 53 ^ 12.) The plaintiff was hired to address certain financial
issues, including multistate sales tax issues, accounting, and intemal financial controls. (ECF
No. 53 22; ECF No.59
17, 54; Acs Dep. Tr. 27:1-10.) At the time they hired the plaintiff,
the defendants believed that he was well-qualified and had the requisite experience and skills to
do the job. (ECF No.47-2
5-6; ECF No. 47-4 H 3.)
Shortly before his first day of work,the plaintiff was given a package of documents for
new AISG employees. (ECF No. 59 ^ 13.) According to the defendants, the package included
the AISG employee handbook, which specifies that all employment is at-will and that the first 90
days ofemployment is a probationary period. (ECF No. 47-2f 9; ECF No.47-3 ^ 5, Ex. G;ECF
No. 59113,14-15, 37.) The plaintiff acknowledges that he received paperwork when he was
hired, and agrees that his employment was at-will, but does not remember receiving or reading
the handbook. (ECF No. 53 ^ 14; ECF No. 59
13,14.) Despite the policy in the handbook.
^ The defendants founded AISG in 2007. (ECF No.47-2 ^ 2; ECF No. 47-4 ^ 2.) AISG designs,
implements and monitors advanced commercial security systems and currently has more than 50
employees. (ECF No. 47-4 ^ 2.)
the plaintiff disputes that he had a 90-day probationary period; he says his employment offer
letter did not mention a probationary period, nor did anyone tell him about it; therefore, it did not
apply to him.^ {See ECF No. 59 H 38 (citing Job Offer Letter EOF No. 55-2); EOF No. 53 H 16.)
The Plaintiffs Employment and Termination
The plaintiff maintains that his employment was problematic from the beginning. He had
a cubicle rather than a private office, while Eldy Guzman, who was not an executive, had her
own office."^ (ECF No. 53
45-46; ECF No.59
21-22, 24.) He was not allowed to hire
support staff, and none ofthe current AISG employees reported to him,although he
"occasionally request[ed] some information from certain employees in order... to complete [his]
tasks as CFO." (ECF No. 53 ^ 19; ECF No.59
19-20.) The defendants respond that they
planned to give the plaintiff a private office eventually, but did not yet have the space available.
(ECF No.59
22, 23.) They also maintain that they were "working on" getting the plaintiff
dedicated support staff, and told the plaintiff that he could ask other AISG employees for help,
which he did. (ECF No. 59fl 19-20.)
The defendants believed that the plaintiff was well-qualified when they hired him, but
changed their minds after he began work, and realized that he did not have the requisite
accounting experience or skills needed to be the CFO. (ECF No. 47-2
11-21; ECF No. 47-4
K 5.) For example, Acs says that the plaintiff delegated tasks that he should have completed
himself, appeared not to know basic accounting concepts, was unfamiliar with filing sales tax
^ The plaintiff does not believe that he signed the standard AISG form acknowledging that he received the
handbook, and the defendants do not have a record that he signed the form. (ECF No.59 14,62; Acs
Dep. Tr. 38:4-41:24.) However,the plaintifffilled out a'^New Hire Checklist" on April 27, 2015, and
checked offthe line next to "Receipt of Employee Handbook." {See ECF No.47-3 ^ 4, Ex. V.) The
Handbook provides that all full-time employees are "on an introductory period during their first 90 days
ofemployment." (ECF No.47-3 ^ 5, Ex. G.)
'' The plaintiff does not say whether he expected Ms. Guzman to vacate her office for him.
reports, and did not know how to operate the Quickbooks software program.^ (ECF No. 47-2
11-21,22-28.) The defendants allege that the plaintiff caused the entire software system to
shut down on multiple occasions because of his lack of proficiency with Quickbooks, which
prevented other employees from using the system. (ECF No.47-2
Ex. M;ECF No.59
18-20; ECF 47-3 H 9-11,
26-29.) The plaintiff also called Quickbooks telephone technical support
frequently; Acs overheard one call in which the plaintiff spoke Hindi to the support specialist,
which led Acs to believe that the plaintiff was sharing confidential financial information with the
technical support specialist.^ (ECF No. 47-2
18, 34.) Acs says that the plaintiff revealed
confidential financial information to Quickbooks technical support "each time" he asked them
questions about the software. (ECF No.47-2 ^ 18.) The plaintiff does not dispute that he called
Quickbooks "several times," but he does dispute that he caused the system to shut down,or gave
Quickbooks confidential information. (ECF No. 59 H 26;see also ECF No. 53
28-31.)
The parties agree that the plaintiff had a "confrontation and verbal altercation" with Ms.
Guzman on June 23,2015, but dispute how the altercation started and who was to blame. (ECF
No. 47-3 ^ 19; ECF No. 59
35,71;
also ECF No.53 H 42; ECF No. 55-29, Guzman Dep.
Tr. 136:1-7.) The plaintiff says that Ms. Guzman raised her voice at him 2ind "attacked" him in
the office. (ECF No.59 ^ 71.) The defendants say that when Ms. Guzman tried to speak to the
plaintiff about his inappropriate delegation of work,the plaintiff yelled at her "in a loud voice"
and "made fists with both hands and thrust[] them at [her]," requiring another male employee to
^ It is undisputed that the plaintiff reported to Acs and had little interaction with Jacobi throughout his 90day employment at AISG. (ECF No. 59
11,12.)
^ It is not clear why Acs, who does not appear to speak Hindi, reached this conclusion.
intervened (ECF No.47-2 H 26; ECF No.47-3 Kf 18-21.) Contemporaneous emails support this
account. (ECF Nos. 50-9, 50-10.)
Defendant Jacobi fired the plaintiff on August 12,2015,93 days after his first day at
AISG. (ECF No. 55-3; ECF No.59
36, 57.) The defendants proffer various reasons for their
decision to fire the plaintiff at the end of the 90-day probation period: they say that he was not
qualified for the position, that he disturbed other employees by playing loud music through his
headphones,that he watched television at his desk during work hours, and that he had several
unpleasant interactions with other employees. (ECF No. 59
also ECF No.47-2 TlH 22-28; ECF No. 47-3
28-35; Acs Dep. Tr. 93:7-23; see
22-24.) According to the plaintiff, the defendants
replaced him with George Getlich, who is not Indian.^ (ECF No.53 159.)
The Alleged Discrimination and Retaliation
The plaintiff argues that the defendants discriminated against him by denying him a
private office and support staff, while other "non-Indian" employees, like Ms. Guzman, were
given a private office and support staff.^ (ECF No. 53
45-46; ECF No.59 H 24.) The plaintiff
says that the defendants responded to his business concerns by saying,"Jews always find a way
to get away with stuff and make money;" he also claims that they "repeatedly" said,"The
company has been making money,that's why Jews are smarter than Indians." (ECF No. 53
nil 47-48.) The plaintiff claims to have made "several verbal complaints in front of defendants
Acs and Jacobi, as well as other employees" of"discrimination and harassment," but does not
' Guzman was not disciplined for the confrontation and voluntarily left her employment with AISG
Ms.
after the plaintiff's termination. (ECF No. 59 ^ 71; Acs Dep. Tr. 18:7-16, 90:3-10.)
® The plaintiff does not give any additional information about Mr. Getlich's qualifications.
® Ms. Guzman,the Vice President of Administration at AISG, was not similarly situated to the plaintiff;
she was not an executive-level employee and had worked at AISG for two years before the plaintiff
arrived. (ECF No. 53 11145-46; ECF No. 59124.)
include any detail about what he said, or when he made the complaints.'® (ECF No. 59
40,
43,93.) He admits that he did not make any written complaints about discrimination. (Id) The
plaintiff claims, however,that the defendants fired him because he complained about
discrimination." (ECF No. 53 H 93.) The defendants respond that the plaintiffs EEOC charge,
filed on November 18, 2015, was the first and only complaint they received. (ECF No. 47-2
135;see also ECF No. 17 K 23.)
The defendants also deny that they made these statements, and point out that they knew
the plaintiff was Indian when they hired him; they say that it makes no sense that they hired him
despite harboring a bias against him. (ECF No.47-2 ^ 32; ECF No. 47-418.) As for the office
situation, the defendants also say that only Acs, Jacobi, and Guzman,senior employees who had
been working at AISG for over two years, had private offices. (ECF No.47-2 ^ 30; ECF No.474 H 9.) The defendants agree that they did not immediately hire support stafffor the plaintiff, but
they had never given the plaintiff a date certain, and they planned to hire additional staff
eventually. (ECF No. 47-2 K 31; ECF No.47-4 T| 9.)
The plaintiff asserts that he told his treating psychiatrist that the defendants discriminated against him, a
complaint the psychiatrist recorded in written notes. (ECF No. 59 40,43 (citing defendants' exhibits).)
However,the exhibits upon which the plaintiff relies do not support the plaintiffs version. The treatment
notes submitted by the defendants show that the plaintiff first saw Dr. Shama Saqi on July 14,2014, and
Dr. Deepika Ramchandani in 2016,long after his termination. (ECF No.49-1,49-2.) Dr. Saqi's notes
make no mention of discrimination. (See ECF No. 49-2.) In any event, the fact that the plaintiff might
have complained to his doctor is not relevant on the question of retaliation, since the notes do not say that
the plaintiff complained about discrimination to the defendants during his employment.
'' The plaintiff also argues that he complained about "errors and potential unlawful action" that he
observed while working for the defendants. (See, e.g., ECF No. 52 at 9; ECF No.53 ^ 93.) There are no
facts in the record to support these claims, so I will not consider them in deciding this motion.
The plaintiff also asserts that he spoke to his wife on the phone during his lunch hour and
that the defendants asked him not to speak Hindi at the office "several times per week."'^ (ECF
No.53 II49; ECF No. 59 H 32.) Defendant Acs admits that he asked the plaintiff not to speak
Hindi on the telephone one time, but that he made the request out of concern that the plaintiff
was sharing confidential company information with a Quickbooks support specialist. (Acs Dep.
Tr. 66:5-25; ECF No.47-2 ^ 34.) He denies that anyone told the plaintiff he could not speak
Hindi on his personal calls or at any other time.'^ (ECF No.47-2 HTj 33-34.)
LEGAL STANDARD
Summary judgment is appropriate only ifthe parties' submissions, including deposition
transcripts, affidavits, or other documentation, show that there is "no genuine dispute as to any
material fact," and the movant is "entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a);
see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,247-48 (1986). The movant has the
"burden of showing the absence of any genuine dispute as to a material fact." McLee v. Chrysler
Corp., 109 F.3d 130,134(2d Cir. 1997); Tsesarskaya v. City ofNew York,843 F. Supp. 2d 446,
453-54(S.D.N.Y. 2012)("While disputes over facts that might affect the outcome ofthe suit
under the governing law will properly preclude the entry ofsummary judgment[,][f]actual
disputes that are irrelevant or unnecessary will not be counted."(quoting Anderson, All U.S. at
248))."Once the moving party has met this burden, the party opposing summary judgment must
identify specific facts and affirmative evidence that contradict those offered by the moving party
to demonstrate that there is a genuine issue for trial." Ethelberth v. Choice Sec. Co., 91 F. Supp.
In a declaration in opposition to the defendants' motion,the plaintiffs wife asserts that she "personally
heard individuals next to my husband, who I later leamed to be defendants Acs and Jacobi, telling Gagan
not to speak in Hindi."(ECF No. 54 3.)
Ms. Guzman says that she told the plaintiff to lower his voice when he was making personal calls
because he was disturbing other workers, but never told him not to speak Hindi. (ECF No.47-3 ^ 23-24.)
3d 339,349(E.D.N.Y. 2015)(citing Celotex Corp. v. Catrett, All U.S. 317,324(1986)). The
non-moving party "may not rely on mere conclusory allegations nor speculation, but instead
must offer some hard evidence showing that its version ofthe events is not wholly fanciful."
D'Amico V. City ofNew York, 132 F.3d 145,149(2d Cir. 1998). In deciding whether summary
judgment is appropriate, the court must resolve all ambiguities and draw all reasonable
inferences in favor ofthe non-moving party. See Kaytor v. Elec. Boat Corp.,609 F.3d 537,545
(2d Cir. 2010); Salamon v. Our Lady of Victory Hosp.,514 F.3d 217,226(2d Cir. 2008).
Because the defendants are moving for summary judgment, I draw all reasonable inferences in
the plaintiffs favor.
DISCUSSION
The plaintiff alleges discrimination based on race, national origin, and religion, and
retaliation, pursuant to Title VII ofthe Civil Rights Act of 1964, New York State Human Rights
Law(NYSHRL)N.Y. Exec. Law § 296, and New York City Human Rights Law(NYCHRL)
N.Y.C. Admin. Code § 8-101. The defendants move for summary judgment on all ofthe
plaintiffs claims.
L
MCDONNELL DOUGLAS FRAMEWORK
A.
DISCRIMINATION
I analyze the motion using the McDonnell Douglas burden-shifting framework. See
McDonnell Douglas Corp. v. Green,411 U.S. 792,802-03(1973). To prevail on his Title VII
and NYSHRL claims, the plaintiff must establish a primafacie case of discrimination. See id.',
Holleman v. Art Crating Inc., No. 12-CV-2719, 2014 WL 4907732, at *22(E.D.N.Y. Sept. 30,
2014)(discrimination claims brought pursuant to Title VII and the NYSHRL are "analytically
identical," and "the same standard of proof applies to both statutes (citing Salamon, 514 F.3d at
226)). Once the plaintiff makes that showing,"the burden of production [shifts] to the employer
and require[es] the employer to come forward with its justification for the adverse employment
action against the plaintiff." Littlejohn v. City ofNew York, 795 F.3d 297,307(2d Cir. 2015). If
the employer meets this burden,"the presumption 'drops out ofthe picture'" and the plaintiff
must demonstrate that the employer's explanation is pretextual. Id.; see also Garcia v. Hartford
Police Dep't, 706 F.3d 120, 127(2d Cir. 2013){citmg Raytheon Co. v. Hernandez,540 U.S. 44,
50(2003)). Whether or not the plaintiff proves pretext, he "bears the ultimate burden of
persuasion, and must adduce enough evidence of discrimination so that a rational fact finder can
conclude that the adverse job action was more probably than not caused by discrimination."
Backv. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 123(2d Cir. 2004).
1. Plaintiffs Prima Facie Case of Discrimination
To establish a primafacie case of discrimination, the plaintiff must show that:(1)he is a
member ofa protected class;(2)he is qualified for the position;(3) he has suffered an adverse
employment action; and(4)the circumstances give rise to an inference of discrimination. See
McDonnell Douglas,411 U.S. at 802-04; Littlejohn, 795 F.3d at 307. The parties agree that the
plaintiff is a member of a protected class. However,the defendants argue that the plaintiff has
not established the remaining three elements ofthe primafacie case.
The "qualification" prong requires that a plaintiff need only "establish basic eligibility for
the position at issue," by showing that he or she "possesses the basic skills necessary for
performance of[the]job." Slattery v. Swiss Reinsurance America Corp.,248 F.3d 87,91-92(2d
Cir. 2001)(citing Owens v. New York City Housing Auth., 934 F.2d 405,409(2d Cir. 1991)).
The defendants concede that they believed that the plaintiff was qualified to be the CFO when
they hired him, but argue that it became apparent that he was not up to the job. However,
determining whether the plaintiff was qualified does not depend on whether the defendants were
ultimately satisfied with his work. See Slattery, 248 F.3d at 92. Instead, consistent with the
plaintiffs de minimis burden to allege a primafacie case, the plaintiff must show "basic
eligibility" for the job. See id. The plaintiff has clearly done that.
The plaintiff asserts the following examples of adverse employment actions: he was
given a cubicle rather than a private office, he was not given support staff or "access to other
employees," he was told not to speak Hindi, and he was terminated. (ECF No.52 at 18.) The
defendants do not dispute that the plaintiff sat in a cubicle and did not have a dedicated support
staff, but they deny that they promised him an office and support staff by a specific date. In any
event, neither condition is an adverse employment action because there was no materially
adverse change in the plaintiffs employment; he sat in a cubicle and had no support stafffrom
his very first day of work. See Fletcher v. ABMBldg. Value, No. 18-CV-1232,2019 WL
2288327,*at *2(2d Cir. May 29, 2019)("An adverse employment action is one that results in a
'materially adverse change in the terms and conditions of employment,' and the change is
materially adverse if it is 'more disruptive than a mere inconvenience or an alteration ofjob
responsibilities.'"(citing Sanders v. N.Y.C. Human Res. Admin.,361 F.3d 749,755(2d Cir.
2004)))(summary order). Accordingly, I find that the only adverse employment actions the
plaintiff suffered was his termination. See Fletcher, 2019 WL 2288327 at *2(examples of
adverse employment actions include "a cut in pay, a change in title, a diminution in authority, or
a measurable loss of status").
Whether the plaintiff has established the final element of his primafacie case — that the
circumstances give rise to an inference of discrimination — is a closer call. However, giving the
plaintiffthe benefit of any doubt,there are some questions of material fact about whether the
10
claimed statements — "Jews are smarter than Indians" and the directions to stop speaking Hindi
— raise an inference of discrimination. See Jones v. Mayflower Int'l Hotel Grp., Inc., No. 15CV-4435,2018 WL 3999586, at *6(E.D.N.Y. July 3,2018)(denying summary judgment
because "The evidence proffered by the Plaintiff is sufficient to raise a genuine issue of material
fact as to whether Defendants' decision was motivated by discriminatory animus and Defendants*
proffered non-discriminatory rationale for Plaintiffs termination is mere pretext."). The plaintiff
asserts that the defendants commented several times that all "Jews are smarter than Indians" and
that they asked him not to speak Hindi at the office, while permitting other employees to speak
different languages. The defendants deny making these statements, and point out that no other
witnesses heard them. They also say that Acs once asked the plaintiff not to use Hindi when he
spoke to Quickbooks support because he was concerned that the plaintiff was disclosing
company secrets. However,the plaintiff does not cite any facts to suggest that the statements
were connected to an adverse employment action.
Viewing the evidence in the light most favorable to the plaintiff, I draw the inference in
his favor and find that he has raised a primefacie case of discrimination. See, e.g.. See DavisGarett v. Urban Outfitters, Inc.,921 F.3d 30,47(2d Cir. 2019)("Viewing as a whole, rather
than piecemeal, Garetfs testimony as to her treatment and the statements made to her by
Anthropologie managers, the jury could find that Garett—castigated, denied the training given to
younger employees, and excluded from management meetings—^was subjected to age-related
discrimination, criticism, and ostracism nearly every day."); Abrams v. Dep't ofPub. Safety, 764
F.3d 244, 253(2d Cir. 2014)("the phrasing "better fit" or "fitting in"just might have been about
race; and when construing the facts in a light most favorable to the non-moving party,those
phrases, even when isolated, could be enough to create a reasonable question offact for a jury").
11
2. The Defendants' Legitimate Explanation for the Adverse Employment
Action
Once the plaintiff provides a primafacie case of discrimination, the defendants can rebut
his primafacie case by "articulat[ing] but... not prov[ing]" a legitimate, non-discriminatory
reason for the adverse employment action. Fisher v. Vassar College, 70 F.3d 1420, 1433(2d
Cir. 1995). The defendants' burden is one of production rather than one of persuasion. Cramer
V. Pyzowski, No.04-CV-l 122, 2007 WL 1541393, at *8(E.D.N.Y. May 25,2007)(citing Fisher,
70 F.3datl433).
The defendants have articulated a legitimate, non-discriminatory reason for terminating
the plaintiff; they explain why his job performance was unsatisfactory, and produced evidence
that they terminated the plaintiff after 93 days of employment-three days after the plaintiffs
probationary period ended.'"* This suggests that his termination was connected to the end ofthe
probationary period rather than any discriminatory animus. The defendants have satisfied their
step-two burden of production, so the burden shifts back to the plaintiff. See Cramer,2007 WL
1541393, at *8.
3. Pretext
Once the defendants articulate legitimate, nondiscriminatory reasons for the adverse
employment actions,the plaintiff has to prove by a preponderance of the evidence that the
defendants' reasons were pretexts for discrimination. See Tyler v. Bethlehem Steel Corp., 958
F.2d 1176, 1181 (2d Cir. 1992). "This may be done either by persuading the trier offact that a
discriminatory reason more likely than not motivated the employer, or by persuading the trier of
fact that the employer's proffered explanation is unworthy of belief." Id. (internal citations
The defendants also dispute that the cubicle and support staff issues are adverse employment actions.
As noted above, I agree.
12
omitted). It is not enough, however,for the plaintiff"merely to show that he satisfies
''McDonnell Douglas's minimal requirements of aprimafacie case'... the key is whether there is
sufficient evidence in the record from which a reasonable trier offact could find in favor of
plaintiff on the ultimate issue." Schreiber v. Worldco, LLC,324 F. Supp. 2d 512, 518(S.D.N.Y.
2004)(internal citations omitted). The issue of pretext "is ordinarily for the jury to decide at trial
rather than for the court to determine on a motion for summary judgment." Holtz v. Rockefeller
& Co., 258 F.3d 62,79(2d Cir. 2001).
As explained above, the plaintiff put forth a primafacie case of discrimination and the
defendants responded with a legitimate, non-discriminatory reason for terminating the plaintiff.
Indeed,the timing ofthe plaintiffs termination -three days after the 90-day probationary period
ended -suggests that the defendants followed their own policy in terminating the plaintiff.'^ It is
also worth noting that defendants Acs and Jacobi interviewed and hired the plaintiff, knowing
that he was Indian, and made the decision to fire him together. They are therefore entitled to an
inference that they did not fire the plaintiff with discriminatory animus. See Carlton v. Mystic.
Transp., Inc., 202 F.3d 129, 137(2d Cir. 2000)("When the same actor hires a person already
within the protected class, and then later fires that same person,'it is difficult to impute to her an
invidious motivation that would be inconsistent with the decision to hire.'"(quoting Grady v.
Affiliated Cent., Inc., 130 F.3d 553,560(2d Cir. 1997))(collecting cases);Inguanzo v. Hous. &
Servs., Inc., 621 F. App'x 91,92(2d Cir. 2015)("Inguanzo's sex discrimination claim is further
The plaintiff disputes that he received or read the employee handbook that contained the defendants'
policy, but the record establishes that the defendants did, in fact, have such a policy. That the defendants
followed their own policy weighs against a finding that their reasons for terminating the plaintiff were
pretextual. See, e.g., McGuire-Welch v. House ofthe Good Shepherd,720 F. App'x 58,61 (2d Cir. 2018)
(granting summaryjudgment to defendants because plaintiff failed to show pretext:"While an inference
of pretext may arise where an employer's deviation from its procedures results in the challenged
employment decision... the record here demonstrates no such deviation.").
13
undermined by the fact that she was hired and fired by the same person."(citing Carlton, 202
F.3d at 129)).
Nevertheless, when the record is viewed in its entirety, there are material questions of
fact about whether the defendants acted with discriminatory animus. For example, it is
impossible to resolve on this record whether the defendants repeatedly told the plaintiff to stop
speaking Hindi - and whether in doing so,they demonstrated discriminatory animus- because it
would require the Court to make a credibility determination as to which party is telling the truth,
a determination that is the province ofthe factfinder. Nor can the Court determine when the
alleged statements were made vis a vis the decision to terminate the plaintiff. Additionally, the
Second Circuit has "repeatedly expressed the need for caution about granting summary judgment
to an employer in a discrimination case where, as here, the merits turn on a dispute as to the
employer's intent." Lowe v. Mount Sinai Health Sys., Inc., No. 16-CV-6074,2018 WL 2089345,
at *4(S.D.N.Y. May 4,2018), ajfd, 764 F. App'x 120(2d Cir. 2019)(citing Holcomb v. lona
Coll., 521 F.3d 130,137(2d Cir. 2008)). Accordingly, I find that material issues offact as to
whether the defendants acted with discriminatory animus preclude summary judgment on the
plaintiffs Title VII and NYSHRL discrimination claims.
B.
RETALIATION
The plaintiffs Title VII and NYSHRL retaliation claims are also analyzed according to
the McDonnell Douglas burden-shifting analysis. See Abrams,764 F.3d at 254. The plaintiff
must first make out a primafacie case of retaliation by showing by a preponderance ofthe
evidence: 1)participation in a protected activity known to the defendant; 2)an employment
action disadvantaging him; and 3)a causal connection between the protected activity and his
termination. Lowe,2018 WL 2089345, at *4(citing Lore v. City ofSyracuse,670 F.3d 127,157
14
(2d Cir. 2012)). It is undisputed that the plaintiff was terminated, so in order to establish a prima
facie case, he must show that he engaged in protected activity known to the defendants and that
there was a causal connection between his protected activity and the decision to terminate him.
Because I find that the plaintiff has not made out a primafacie case of retaliation, I do not
engage in the remainder ofthe burden-shifting analysis.
Protected activity includes any complaints of discrimination made directly to an
employer's decisionmakers or complaints of which the employer had knowledge. Littlejohn, 795
F.3d at 317("When an employee communicates to her employer a belief that the employer has
engaged in ... a form ofemployment discrimination, that communication virtually always
constitutes the employee's opposition to the activity."(quoting Crawford v. Metro. Gov't of
Nashville & Davidson Cty., Tenn., 555 U.S. 271,276(2009))); Galdieri-Ambrosini v. Nat'l
Realty and Dev't Corp., 136 F.3d 276, 292(2d Cir. 1998)("[IJmplicit in the requirement that the
employer have been aware ofthe protected activity is the requirement that it understood, or could
reasonably have understood, that the plaintiffs opposition was directed at conduct prohibited by
Title VII."). Because the plaintiff did not file his EEOC complaint until after he was terminated,
he must rely on evidence that he made informal, verbal complaints of discrimination to prove
that he engaged in protected activity. See Littlejohn, 795 F.3d at 316.
As discussed above, the only evidence that the plaintiff complained about discrimination
to the defendants is his testimony that he verbally confronted them; he gives no detail about
when the complaints were made,to whom they were made, or the circumstances under which
they were made. The individual defendants deny that the plaintiff complained to them about
discrimination, and there is no evidence that other employees heard any complaints. However,
because I must view the evidence in the light most favorable to the plaintiff, and resolve all
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factual disputes in his favor, I find that the plaintiff engaged in protected activity by making
verbal complaints of discrimination.
Even though the plaintiff has met his burden in showing that he engaged in protected
activity, he fails to establish a primafacie case of retaliation because there is no evidence of a
causal connection between the plaintiffs complaints of discrimination and the decision to
terminate him. See Lowe,2018 WL 2089345, at *6("Although Lopiano's remarks should not be
considered 'stray' or infrequent, crediting Plaintiffs testimony... there is insufficient support in
the record to show a connection between such racial animus and the termination decision. The
record shows that the decision to terminate Plaintiff was motivated by legitimate business
reasons.") Unlike Title VII discrimination claims,for an adverse retaliatory action to be
"because" a plaintiff made a charge,the plaintiff must plausibly allege that the retaliation was a
"but-for" cause ofthe employer's adverse action. Vega v. Hempstead Union Free Sch. Dist., 801
F.3d 72,90(2d Cir. 2015)(citing Univ. ofTex. Sw. Med. Ctr. v. Nassar,570 U.S. 338, 360
(2013)).
The plaintiff says only that he made "several" complaints; he gives no timeffame at all.
There is no evidence that the defendants fired the plaintiff soon after he complained. In fact, the
plaintiff says the defendants treated him poorly from the start of his employment. He therefore
cannot rely on "temporal proximity" to establish a causal nexus between his complaints and
termination. Nor does the plaintiff cite any additional facts that suggest that his complaints were
connected to the decision to terminate him. Accordingly, there is no evidence from which the
Court can conclude that the defendants took any kind of action in response to his complaints of
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discrimination.'^ The plaintiff has not set forth a primafacie case of retaliation pursuant to Title
VII and the NYSHRL,and those claims are dismissed.
11.
MIXED MOTIVE FRAMEWORK
In a "mixed motive" case, the plaintiff can prevail by showing that discriminatory intent
was a "motivating" or "substantial" factor in the employer's decision to terminate him. See
Price Waterhouse v. Hopkins,490 U.S. 228,258(1989);see also 42 U.S.C. § 2000e-2(m)("[A]n
unlawful emplojonent practice is established when the complaining party demonstrates that race,
color, religion, sex, or national origin was a motivating factor for any employment practice,even
though other factors also motivated the practice."). "[T]he defendant may avoid a finding of
liability only by proving by a preponderance of the evidence that it would have made the same
decision even if it had not taken the plaintiffs [race] into account." Price Waterhouse,490 U.S.
at 258. "[Pjlaintiffs initial burden in a Price Waterhouse mixed-motive case is heavier than the
de minimis showing required to establish a primafacie McDonnell Douglas case...[T]o warrant
a mixed-motive burden shift, the plaintiff must be able to produce a smoking gun or at least a
thick cloud ofsmoke to support his allegations of discriminatory treatment." Raskin v. Wyatt
Co., 125 F.3d 55,60-61 (2d Cir. 1997)(internal citations omitted). The plaintiff"must focus his
proof directly at the question of discrimination and prove that an illegitimate factor had a
'motivating' or 'substantial' role in the employment decision." Tyler, 958 F.2d at 1181 (citing
Price Waterhouse,490 U.S. at 258).
I reach the same result on the plaintiffs discrimination and retaliation claims under the
mixed motive framework. The plaintiff has met his initial burden ofshowing a primafacie case
In fact, the evidence provided by the defendants shows that the plaintiff was fired less than two months
after his "confrontation" with a coworker and after several other coworkers complained about him, and
three days after his probationaiy period ended.
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of discrimination and raised questions of material fact as to whether the defendants were
motivated by discriminatory animus, but he has not met his burden on the retaliation claims.
While there is a material dispute about whether the defendants made discriminatory statements,
there is insufficient evidence that the plaintiffs complaints about these statements caused his
termination. See Lowe,2018 WL 2089345 at *8(holding "a legitimate, non-discriminatory
reason existed for the termination ofPlaintiffs employment, and that Plaintiff cannot show that
discrimination or retaliation caused her termination"). There is certainly no "direct evidence"
that he engaged in protected activity that caused the defendants to terminate him, as required by
the Price Waterhouse precedent. See, e.g., Raskin, 125 F.Sd at 61 ("Evidence potentially
warranting a Price Waterhouse burden shift includes, inter alia, policy documents and evidence
of statements or actions by decisionmakers "that may be viewed as directly reflecting the alleged
discriminatory attitude"). Accordingly, applying the mixed motive framework does not compel a
different result.
III.
NYCHRL CLAIMS
The Court must analyze NYCHRL claims "separately and independently from any
federal and state law claims" and construe the NYCHRL's provisions "broadly in favor of
discrimination plaintiffs." Mihalikv. Credit Agricole CheuvreuxN. Am., Inc., 715 F.3d 102,109
(2d Cir. 2013)(quoting
v. City ofNew York, 16 N.Y.3d 472,477-78 (2011)). Section 8-
107(7)ofthe NYCHRL prohibits employers from "retaliat[ing] or discriminat[ing] in any
manner against any person because such person has ... opposed any practice forbidden under this
chapter." N.Y.C. Admin. Code § 8-107(7). The Restoration Act further provides that"The
retaliation or discrimination... need not result in an ultimate action with respect to employment...
provided, however,that the retaliatory or discriminatory act or acts complained of must be
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reasonably likely to deter a person from engaging in protected activity." Restoration Act § 3
(amending N.Y.C. Admin. Code § 8-107(7)). To prevail on its motion for summary judgment
on the plaintiffs NYCHRL claims, the defendants are required to show that, based on the
evidence before the Court and drawing all reasonable inferences in the plaintiffs favor, no jury
could find that they treated the plaintiff"less well" than other employees, at least in part because
of his race, national origin and religion. See Simmons v. Akin Gump Strauss Hauer & Feld, LLP,
508 F. App'x 10, 13(2d Cir. 2013).
For the reasons discussed above, there are issues of material fact precluding summary
judgment on the plaintiffs Title VII and NYSHRL discrimination claims; therefore, these issues
offact also preclude summary judgment under the broader NYCHRL standard for
discrimination. However,the plaintiffs NYCHRL retaliation claim fails. Even under the more
relaxed NYCHRL retaliation standard, he must still show that a "nexus exists between the
allegedly discriminatory statements and [the] defendant[s'] decision to discharge the plaintiff."
Godbolt V. Verizon New York Inc., 115 A.D.3d 493,495 (1st Dep't 2014)(citing Schreiber, 324
F Supp 2d at 518). He also must show that the defendants engaged in conduct "reasonably likely
to deter a person engaging in" the protected activity. See Ya-Chen Chen v. City Univ. ofNew
York, 805 F.3d 59,76(2d Cir. 2015)(affirming dismissal ofNYCHRL discrimination and
retaliation claims on summary judgment). The plaintiff has failed to do so. Therefore, the
defendants' motion for summary judgment on the NYCHRL retaliation claim is granted, and the
claim is dismissed.
CONCLUSION
The defendants' motion for summaryjudgment on the plaintiffs discrimination claims
pursuant to Title VII,the NYSHRL and the NYCHRL is denied and their motion on the
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plaintiffs retaliation claims pursuant to the same statutes is granted. To be clear, Counts One
through Nine of the Amended Complaint will proceed to trial and Counts Ten through Twelve
are dismissed.
SO ORDERED.
s/Ann M. Donnelly
AnnjCl. Donnelly
United States District Judge
Dated: Brooklyn, New York
July 22,2019
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