Barker v. Aramark Uniform & Careers Apparel LLC

Filing 106

MEMORANDUM & ORDER: For the reasons described stated in the attached Memorandum and Order, the Court finds that there is no genuine issue of material fact as to Plaintiff's constructive discharge claim. The Court accordingly grants Defendant's Motion for Summary Judgment. This case is dismissed with prejudice. The Clerk of Court is respectfully requested to enter judgment and terminate this matter. Ordered by Judge Pamela K. Chen on 9/25/2024. (NS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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RONALD BARKER,
Plaintiff,
- against -

MEMORANDUM & ORDER
19-CV-2710 (PKC) (SMG)

ARAMARK UNIFORM & CAREER
APPAREL, LLC,
Defendant.
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PAMELA K. CHEN, United States District Judge:
Plaintiff Ronald Barker (“Plaintiff”), proceeding pro se, brings this action against his
former employer, Defendant Aramark Uniform & Career Apparel, LLC (“Defendant” or
“Aramark”), alleging violations of 42 U.S.C. §§ 2000e et seq. (“Title VII”). After a motion for
summary judgment and a motion to dismiss, the only surviving claim is one for constructive
discharge and a demand for punitive damages pursuant to Title VII. Defendant now moves for
summary judgment as to the sole remaining claim pursuant to Federal Rule of Civil
Procedure 56. For the reasons discussed below, Defendant’s motion is granted.

BACKGROUND
I.

Relevant Facts1
Plaintiff is a Black individual who began working as a Route Sales Representative

(“RSR” or “Driver”) for Defendant, a company providing uniform services, such as uniform
rentals, laundry service, and repairs, on or around March 5, 2014. (Def.’s Loc. Rule 56.1
Statement of Undisputed Material Facts, Dkt. 94 (“Def.’s 56.1”), ¶¶ 1, 5, 11.)2 In the summer of
2016, Defendant restructured its drivers’ routes, including Plaintiff’s. (Id. ¶¶ 33, 35.) The
purpose of the restructuring was, among other things, to improve customer service by ensuring
routes consisted of stops that were aligned geographically. (Id. ¶ 33.) Plaintiff’s new route
following the restructuring consisted of 119 stops. (Id. ¶ 36.)

The facts below are taken from Defendant’s Rule 56.1 statement, the parties’ affidavits,
and exhibits. Unless otherwise noted, where Defendant’s 56.1 statement is cited, the fact is
undisputed or Plaintiff has pointed to no evidence in the record to contradict it. Here, Plaintiff
did not submit a Local Civil Rule 56.1 statement with his papers opposing Defendant’s motion.
Nevertheless, district courts have “broad discretion to determine whether to overlook a party’s
failure to comply with local court rules,” and a court “may in its discretion opt to ‘conduct an
assiduous review of the record’ even where one of the parties has failed to file [a Local Civil
Rule 56.1] statement.” Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (quoting
Monahan v. N.Y.C. Dep’t of Corr., 214 F.3d 275, 292 (2d Cir. 2000)), abrogated in part on other
grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009). Where the Court’s independent
review of the record yields evidence contrary to a given assertion in the moving party’s Local
Civil Rule 56.1 statement, or where a party fails to support an assertion by citing admissible
evidence, the Court may reject that assertion. Id. at 73–74. Conversely, where the moving
party’s Local Civil Rule 56.1 statement is not contradicted by the Court’s review of the record,
then the party’s assertions will be “deemed admitted as a matter of law” for the purposes of a
summary judgment motion. Chitoiu v. UNUM Provident Corp., No. 05-CV-8119 (LAP), 2007
WL 1988406, at *1 & n.1 (S.D.N.Y. July 6, 2007) (granting summary judgment against pro se
plaintiff who failed to respond to defendant’s Local Civil Rule 56.1 statement of facts). Any
citation to a 56.1 statement incorporates by reference the documents cited therein; where
relevant, however, the Court may cite directly to an underlying document.
1

2

As it must, the Court construes any disputed facts in the light most favorable to Plaintiff
for purposes of Defendant’s summary judgment motion. See Adickes v. S.H. Kress & Co., 398
U.S. 144, 157 (1970).

2

In October 2016, David Gambardella, Plaintiff’s District Manager, reassigned six stops
from Plaintiff’s route to a white driver, Brian Calhoun.3 (Def.’s 56.1 ¶¶ 15, 47–49.) According
to Plaintiff, when he spoke with Gambardella about the stop-reassignment issue, Gambardella
stated, “this is how we look after our own,” and then employed “stereotypical ‘Black phrases,’”
such as “you know what I’m saying homie?” (Ex. A to Fleming Decl., Dkt. 98-1 (“Pl.’s Dep.
Tr.”), at 185:18–186:25.) Defendant does not dispute the veracity of this incident but cites to
alternative reasons for reassigning stops from Plaintiff to other Drivers, including several
complaints Defendant received from customers assigned to Plaintiff’s route. (Def.’s 56.1 ¶¶ 45–
46.) In response, Plaintiff alleges that he never received a single verbal warning or disciplinary
notice from Human Resources about complaints from his route.4 (Pl.’s Mem. Opp’n Summ. J.
Mot., Dkt. 91 (“Pl.’s Opp’n”), at ECF 2.)5 Eventually, seven more stops were reassigned from
Plaintiff to other drivers—six stops were reassigned to Braulio Estrada in the Fall of 2016 and
one stop was reassigned to Calhoun in February 2017. (Def.’s 56.1 ¶¶ 54, 56, 68.)
Plaintiff contends that, following the reassignment of 13 stops from his original 119-stop
route, his salary decreased significantly. (Pl.’s Opp’n at ECF 4.) All payments made to Plaintiff
were in accordance with the terms of the Collective Bargaining Agreement (“CBA”) between
Defendant and Plaintiff’s union, which stated that an RSR will be paid at least the weekly
average of the amount they made prior to the route restructuring for a period of 13 weeks starting
Though Plaintiff’s discrimination claim based on the reassignment of stops is timebarred, for the reasons stated below, see Discussion infra Section I.A, the Court may consider
these facts as background evidence for his constructive discharge claim.
3

4

Though the record does not contain any further evidence or testimony regarding
Plaintiff’s disciplinary history at Aramark, the Court construes any disputed facts in the light
most favorable to Plaintiff for purposes of this motion. See Adickes, 398 U.S. at 157.
Citations to “ECF” refer to the pagination generated by the Court’s CM/ECF docketing
system and not the document’s internal pagination.
5

3

August 5, 2016. (Def.’s 56.1 ¶¶ 40, 42.) The CBA further stated that beginning November
2016, Plaintiff would be paid the greater of (a) the route minimum of $800, or (b) 10% of the
commissionable revenue generated by the route. (Id. ¶¶ 26, 30, 58.)
Between August and October 2016, Plaintiff was paid at least $1,080.85 for each full
week that he worked. (Id. ¶ 42.) Between March 2017 and August 2017, Plaintiff was paid at
least the weekly route minimum of $800 plus a $45 base pay for each full week that he worked.
(Id. ¶ 78.) Plaintiff’s new route did not generate more revenue than the route minimum during
this period. (Id. ¶ 79.) Prior to the route restructuring, the average weekly revenue for the 119
stops assigned to Plaintiff was $9,519.11, of which $125.09 was attributed to Loss and Ruin
(“L&R”) fees.6 (Id. ¶ 37.)
Separately, Plaintiff alleges that one day in 2017, while he was in line outside
Gambardella’s office waiting to check in, Gambardella called one of Plaintiff’s co-workers, Jose
Nunez, to cut in front of Plaintiff. (Pl.’s Dep. Tr. at 218:16–219:10.) Nunez later7 told Plaintiff
that when Nunez told Gambardella that Plaintiff was ahead of him in line, Gambardella said, “let
the monkey wait.” (Id.) At his deposition in this case, Plaintiff testified that he did not hear

6

Under the earnings formula effective November 2016, the hypothetical average weekly
gross pay from the 119 stops would have been 10% of the commissionable revenue including
L&R fees, (Def.’s 56.1 ¶¶ 25–26), which amounts to $951.90.
Although the precise timing of Nunez telling Plaintiff about Gambardella’s statement is
unclear, Plaintiff’s deposition testimony suggests that it might have happened the same day as
the incident and that, at a minimum, it was before Plaintiff left Aramark. In his deposition,
Plaintiff first testified: “Jose told me right after he checked – checked him in” (presumably
referring to Gambardella checking Nunez in that day). (Id. at 217:18–20.) Plaintiff then testified
that he could not give “an exact date on when it was said,” but that it was after Plaintiff filed his
“grievance” (relating to stop-reassignments). (Id. at 217:23–218:10, 178:6–22.) Plaintiff further
testified that he believed Nunez told Plaintiff shortly before Plaintiff resigned. (Id. at 218:11–
15.) In January 2020, Nunez provided Plaintiff a sworn affidavit about the incident. (Pl.’s
Opp’n at ECF 31.)
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4

Gambardella’s comment to Nunez; he only saw Nunez get taken from the back of the line into
the Gambardella’s office ahead of Plaintiff. (Id. at 280:11–281:5.)8
Finally, while still employed at Aramark, Plaintiff applied for a job as a “driver” at
another company, North Shore Linen. (Def.’s 56.1 ¶ 84.) On Thursday August 10, 2017,
Plaintiff resigned from Aramark without giving notice, (id. ¶ 88), and began working for North
Shore Linen five days later, (id. ¶ 91).
II.

Procedural History
On January 24, 2018, Plaintiff filed a charge of discrimination with the United States

Equal Employment Opportunity Commission (“EEOC”) and the New York State Division of
Human Rights (“NYSDHR”). (Compl., Dkt. 1, at ECF 6, 11.)9 On May 8, 2019, Plaintiff filed
the operative complaint in this action following the issuance of a Right-to-Sue letter by the
EEOC. (Id. at 6 (“Right to Sue letter dated 2/14/2019”).)
On September 22, 2020, the Court partially granted Defendant’s motion for summary
judgment, dismissing Plaintiff’s New York State Human Rights and New York City Human
Rights Law claims and his federal claim under 42 U.S.C. § 1981 as barred by a prior settlement
agreement executed by the parties after Plaintiff filed his claims with the NYSDHR. (Dkt. 39 at
19.) The Court, however, declined to dismiss Plaintiff’s punitive damages claim under Title VII,
finding that the release in the parties’ settlement agreement did not unambiguously cover that

Defendant disputes Gambardella’s comment as inadmissible hearsay. (Def.’s Mem.
Supp. Summ. J, Dkt. 95 (“Def.’s Mem.”), at 17–18.) For the reasons discussed below, see
Discussion infra Section I.B, the Court will allow consideration of Gambardella’s comment in
the constructive discharge claim.
8

Plaintiff’s complaint in this action consists of the Court’s standard pro se complaint
form and over 200 pages of attached exhibits, which include, inter alia, Plaintiff’s original
NYSDHR complaint and the NYSDHR’s Final Investigation Report and Basis of Determination.
Plaintiff did not include a separate statement of facts with his complaint, but instead wrote “see
attached files from New York State Division of Human Rights.” (See Compl., Dkt. 1, at ECF 5.)
9

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claim. (Id. at 13–18.) The Court accordingly authorized the parties to engage in limited
discovery and additional briefing regarding the parties’ intent with respect to the scope of the
release. (Id. at 19–20.) In December 2020, Defendant renewed their summary judgment motion
as to Plaintiff’s Title VII punitive damages claim, again arguing that it was covered by the
release under the settlement agreement, and also arguing that courts do not recognize a
standalone punitive damages claim under Title VII. (Dkts. 45–46.) The Court denied that
motion on September 30, 2021. (Dkt. 52 at 2.)
On January 14, 2022, Defendant filed a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6), challenging the sufficiency of Plaintiff’s Title VII claims, as alleged in
the Complaint. (Dkt. 60.) On September 30, 2022, the Court granted Defendant’s motion to
dismiss as to Plaintiff’s Title VII employment discrimination claim as time-barred but denied its
motion as to Plaintiff’s Title VII constructive discharge claim and demand for punitive damages.
(Dkt. 65 at 6–9.) Defendant then moved for reconsideration of the Court’s Memorandum and
Order, which the Court denied on October 18, 2022. (Dkt. 69; 10/18/2022 Docket Order.)
On November 30, 2022, Defendant filed its Answer and Defenses to Plaintiff’s
Complaint.

(Dkt. 71.)

On May 26, 2023, Plaintiff was deposed by Defendant remotely.

(Dkt. 84 at ECF 2.) On June 6, 2023, Plaintiff filed a motion in limine to Suppress Tangible
Evidence, Statement, and Identification Evidence, requesting an order “precluding the Defendant
from using or referring to the Plaintiff’s silence” and “an audibility hearing on the May 26, 2023
deposition.” (Id.) On June 7, 2023, Defendant moved for a pre-motion conference to discuss its
anticipated motion for summary judgment. (Dkt. 83.) On June 8, 2023, a pre-trial conference
was held before the Honorable Ramon E. Reyes, Jr., then-United States Magistrate Judge, where
Judge Reyes certified that discovery was complete and directed Defendant’s representative to

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meet with Plaintiff in person within two weeks to explain spreadsheets and other documents
produced. (6/8/2023 Minute Entry.) On June 15, 2023, Defendant filed its response opposing
Plaintiff’s motion in limine. (Dkt. 85.) On June 27, 2023, the Court dismissed Plaintiff’s motion
in limine as premature without prejudice to renew after the parties file their joint pre-trial order.
(6/27/2023 Docket Order.) The Court further denied Defendant’s request for a pre-motion
conference as unnecessary and set a briefing schedule for Defendant’s summary judgment
motion.

(7/11/2023 Docket Order.)

The summary judgment motion was fully briefed on

October 10, 2023. (Dkt. 101.)
LEGAL STANDARD
Summary judgment is appropriate where the submissions of the parties, taken together,
“show[] that 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); see Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251–52 (1986) (the summary judgment inquiry is “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law”). A dispute of fact is “genuine” if “the [record] evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477
U.S. at 248.
The initial burden of “establishing the absence of any genuine issue of material fact” rests
with the moving party. Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d
Cir. 2010) (per curiam). Once this burden is met, the burden shifts to the nonmoving party to put
forward some evidence establishing the existence of a question of fact that must be resolved at
trial. Spinelli v. City of New York, 579 F.3d 160, 166–67 (2d Cir. 2009); see also Celotex Corp v.
Catrett, 477 U.S. 317, 322–23 (1986).

A mere “scintilla of evidence” in support of the

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nonmoving party is insufficient; “there must be evidence on which the jury could reasonably find
for the [non-movant].” Hayut v. State Univ. of N.Y., 352 F.3d 733, 743 (2d Cir. 2003) (alteration
in original) (quoting Anderson, 477 U.S. at 252). That is, “[t]he nonmoving party must come
forward with specific facts showing that there is a genuine issue for trial.”

Caldarola v.

Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (emphasis omitted) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)).
In determining whether a genuine issue of fact exists, the Court must resolve all
ambiguities and draw all reasonable inferences in favor of the nonmoving party. Major League
Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). The Court also
construes any disputed facts in the light most favorable to the nonmoving party. See Adickes,
398 U.S. at 157–59. However, “the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment.”
Anderson, 477 U.S. at 247–48 (emphasis omitted).
The Second Circuit “liberally construe[s] pleadings and briefs submitted by pro se
litigants, reading such submissions to raise the strongest arguments they suggest.” Bertin v.
United States, 478 F.3d 489, 491 (2d Cir. 2007) (citations and quotations omitted). Nevertheless,
“[p]roceeding pro se does not otherwise relieve a litigant of the usual requirements of summary
judgment, and a pro se party’s bald assertions unsupported by evidence, are insufficient to
overcome a motion for summary judgment.” Rodriguez v. Hahn, 209 F. Supp. 2d 344, 348
(S.D.N.Y. 2002) (citation omitted).
DISCUSSION
The sole remaining claim in this action is Plaintiff’s request for punitive damages
pursuant to Title VII based upon a theory of constructive discharge. As a preliminary matter,
Defendant raises two threshold challenges to Plaintiff’s constructive discharge claim. First, to
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the extent that Plaintiff relies on the reassignment of stops to support his claim, Defendant argues
that those allegations are time-barred. Second, to the extent that Plaintiff relies on David
Gambardella’s alleged statement to Jose Nunez (referring to Plaintiff, “let the monkey wait”) to
create a material issue of fact, Defendant argues that Gambardella’s statements are inadmissible
hearsay. The Court considers each of these arguments in turn.
I.

Threshold Challenges
A.

Reassignment of Stops

Plaintiff’s reliance on the reassignment of stops to support his constructive discharge
claim is not precluded by this Court’s September 30, 2022 Order dismissing Plaintiff’s
employment discrimination claim under Title VII. See Barker v. Aramark Uniform & Career
Apparel, LLC, No. 19-CV-2710 (PKC) (SMG), 2022 WL 4661507, at *3 (E.D.N.Y. Sept. 30,
2022); (see also Dkt. 65 at 6–7). In that Order, the Court found that the reassignment of stops
were “discrete acts” that were time-barred, and that the continuing violation exception did not
apply to Plaintiff’s alleged lost wages resulting from the reassignments. Barker, 2022 WL
4661507, at *3.
The time-barred employment discrimination claim cannot be resurrected through the
vehicle of a constructive discharge claim. See Kitani v. N.Y.C. Transit, No. 19-CV-1043 (VSB),
2022 WL 874781, at *6 n.7 (S.D.N.Y. Mar. 24, 2022) (“Plaintiff’s proposed constructive
discharge claim cannot help to revive the otherwise time-barred conduct either, because, even if
the constructive discharge claim is itself timely, it is still ‘a discrete act that does not render the
alleged conduct that came before it timely.’” (quoting Antrobus v. N.Y.C. Health & Hosps.
Corp., No. 19-CV-7449 (KPF), 2021 WL 964438, at *7 (S.D.N.Y. Mar. 15, 2021))). But the
stress and alleged loss of pay resulting from the reassignment of the stops can nevertheless serve
as background evidence to Plaintiff’s constructive discharge claim.
9

“It is well-settled that

plaintiff may rely on her time-barred allegations of defendant’s misconduct ‘as background
evidence in support of [her] timely [constructive discharge] claim.’” Cummings v. Brookhaven
Sci. Assocs., LLC, No. 11-CV-1299 (DRH) (ETB), 2011 WL 6371753, at *14 (E.D.N.Y. Dec.
20, 2011) (alterations in original) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
113 (2002)) (first citing Petrosino v. Bell Atl., 385 F.3d 210, 220 (2d Cir. 2004) and then citing
Sherman v. N.Y. Pub. Libr., No. 07-CV-0679 (SJF) (LB), 2008 WL 1968300, at *6 n.7
(E.D.N.Y. Apr. 30, 2008)); see also Sherman, 2008 WL 1968300, at *6 n.7 (“Although all of the
discrete acts allegedly committed by defendant during plaintiff’s active employment are not
actionable as time-barred, plaintiff is not barred from using those prior acts as background
evidence in support of her timely constructive discharge claim.” (citing Morgan, 536 U.S. at
113)).

Indeed, in permitting Plaintiff’s constructive discharge claim to proceed, the Court

referenced the pay reduction that Plaintiff allegedly suffered as a result of the stop
reassignments. See Barker, 2022 WL 4661507, at *4 (“Here, [as to the constructive discharge
claim], Plaintiff not only alleges that his pay was reduced because he was ‘left with less-paid
stops,’ but that he was also denied the benefit of commissions from ‘loss-and-ruin pay.’”). The
Court also noted that Gambardella’s statements to Plaintiff saying, “this is how we look after our
own,” which took place around the time stops were reassigned, was evidence supporting a
plausible inference of “dog-whistle racism” for purposes of a constructive discharge claim. Id.
Here, in his opposition papers, Plaintiff states that the reassignment of stops “resulted in
his salary decreasing significantly,” (Pl.’s Opp’n at ECF 4), a fact borne out by Defendant’s own
evidence, (see Def.’s. 56.1 ¶¶ 37, 42, 78–79). Plaintiff also testified during his deposition that he
experienced increased levels of stress due to the reduction in pay following the reassignment of
stops. (Pl.’s Dep. Tr. at 219:23–220:5 (“Once Mr. Dave [Gambardella] took the . . . stops from

10

me, that made it stressful . . . [because] I am not going to the stops and making the same money I
made.”).) Plaintiff further states in his opposition that the loss of pay:
[W]as a financial strain which caused me stress, tension at home, anxiety, a
feeling of being “less than” and a general feeling of low self-esteem and zero selfworth. It put me in a state of depression, and it took me out of my normal happy
self and put me in a state of no self-esteem. It affected my relationships in a
negative way with my wife, my children, and my closest family members . . . . I
began drinking daily, arguing with my wife and being hostile to those family
members closest to me.
(Pl.’s Opp’n at ECF 5 (cleaned up).) Thus, evidence of Plaintiff’s stress and depression, though
directly stemming from the decrease in pay following the reassignment of stops, can still be
considered by the Court as background evidence in assessing his constructive discharge claim.
B.

Hearsay Allegations

Defendant argues that Plaintiff’s testimony and Jose Nunez’s affidavit describing David
Gambardella’s “let the monkey wait” comment cannot support a constructive discharge claim
because it is inadmissible hearsay. (Def.’s Mem. at 17–18.)
A nonmoving party cannot rely on an affidavit or other evidence inadmissible as hearsay
to create a genuine issue of material fact to survive a motion for summary judgment. See
Hayden v. Walmart Stores, Inc., 619 F. App’x 22, 23–24 (2d Cir. 2015) (summary order)
(affirming summary judgment where plaintiff relied on inadmissible hearsay to advance his
discrimination claim); see also Rohman v. N.Y.C. Transit Auth. (NYCTA), 215 F.3d 208, 218 n.6
(2d Cir. 2000) (“Under Fed. R. Civ. P. 56(e), only admissible evidence may be used to resist a
motion for summary judgment . . . .”).

But here, both Nunez and Gambardella would

presumably be available to testify at trial regarding Gambardella’s statement, and the statement

11

itself is not hearsay because it is not being offered for its truth.10 Gambardella’s comment, as
discussed in Nunez’s affidavit, is thus not precluded from being considered on a summary
judgment motion. See Weyant v. Phia Grp. LLC, 556 F. Supp. 3d 310, 320 (S.D.N.Y. 2021)
(“That the declaration itself is hearsay is not an impediment on a motion for summary judgment,
assuming that [the declarant] is available to testify at trial.”).
Having ruled on the two threshold matters, the Court now turns to the merits of Plaintiff’s
constructive discharge claim and whether Plaintiff can prove that claim to a jury by a
preponderance of the evidence.
II.

Constructive Discharge
A.

Legal Standard

“A constructive discharge occurs when the employer, rather than acting directly,
‘deliberately makes an employee’s working conditions so intolerable that the employee is forced
into an involuntary resignation.’” Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983)
(quoting Young v. Sw. Sav. & Loan Ass’n, 509 F.2d 140, 144 (5th Cir. 1975)). The Second
Circuit has found two components of this standard: “the employer’s intentional conduct” against
the plaintiff and “the intolerable level” of the plaintiff’s work conditions. Petrosino, 385 F.3d
at 229. If a “reasonable person subjected to the same conditions as the plaintiff would have felt
compelled to step down,” a claim for constructive discharge may proceed. See Chertkova v.
Conn. Gen. Life Ins. Co., 92 F.3d 81, 90 (2d Cir. 1996) (emphasis in original). The Court views
Plaintiff’s allegations regarding his working conditions on a cumulative basis. Id. (finding error
in the district court’s treatment of the various conditions set forth by plaintiff “as separate and
Nunez’s affidavit describing Gambardella’s comment and its surrounding
circumstances states, “I will testify to it in court.” (Pl.’s Opp’n at ECF 31.) Similarly, in his
declaration, Gambardella states that he “ha[s] never made any racist comments about Plaintiff”
and that he “would testify [to the matter] under oath.” (Gambardella Decl., Dkt. 97 ¶¶ 1, 23.)
10

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distinct rather than additive”); see also Timothy v. Our Lady of Mercy Med. Ctr., No. 03-CV3556 (RCC), 2004 WL 503760, at *7 (S.D.N.Y. Mar. 12, 2004) (finding plaintiff’s aggregated
allegations sufficient to withstand a motion to dismiss where plaintiff alleged, inter alia, that she
was passed over for positions for which she was qualified and that defendants “generally
engaged in actions that made it more difficult for her to work”). A constructive discharge claim
“requires a ‘further showing’ beyond what is necessary to establish a hostile work environment
or retaliation claim, such that resignation qualified as a fitting response” to an intolerable work
atmosphere. Bundschuh v. Inn on the Lake Hudson Hotels, LLC, 914 F. Supp. 2d 395, 408
(W.D.N.Y. 2012) (citing Pa. State Police v. Suders, 542 U.S. 129, 134 (2004)). “Creation of a
hostile work environment is a necessary predicate to a hostile-environment constructive
discharge case.” Suders, 542 U.S. at 149.
B.

Analysis

In the instant case, even resolving all factual disputes in Plaintiff’s favor and considering
those facts in the light most favorable to him, Plaintiff’s resignation fails to rise to the level of a
constructive discharge.
First, the majority of courts in this Circuit have found that statements more egregious
than the two that Plaintiff experienced—one firsthand (“this is how we look after our
own . . . you know what I’m saying homie?”) and the other indirectly (“let the monkey wait”)—
are insufficient, as a matter of law, to establish a hostile work environment claim, which is a
predicate to Plaintiff’s constructive discharge claim. See, e.g., Thompson v. Spota, No. 14-CV2473 (JMA) (AKT), 2018 WL 6163301, at *34–35 (E.D.N.Y. Aug. 23, 2018) (alleged comment
that plaintiff was “a monkey in a suit” did not constitute “objectively severe or pervasive
conduct”), R. & R. adopted, 2018 WL 4779101 (E.D.N.Y. Sept. 30, 2018); Martin v. Walgreen
Co., No. 16-CV-9658 (AKH), 2018 WL 3773987, at *5 (S.D.N.Y. Aug. 9, 2018) (allegations
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that supervisors called plaintiff a “monkey” and a “black dog” were not sufficiently severe or
pervasive to create a hostile work environment). Although there can be no doubt that the use of
racial epithets and the word “monkey” to describe a human being in any context, let alone in the
work environment, is loathsome, offensive, and “degrading and humiliating in the extreme,”
United States v. N.Y.C. Dep’t of Educ., 407 F. Supp. 3d 365, 400–01 (S.D.N.Y. 2018) (finding
evidence sufficient to show hostile work environment despite plaintiff not being present when
comment was made) (quoting Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir.
2001)), here, the totality of the admissible evidence—two offensive comments, only one of
which was directed to Plaintiff, over the course of three-and-a-half years—does not meet the
threshold for a constructive discharge claim, which is higher than for a hostile work environment
claim. Suders, 542 U.S. at 134.
Second, even adding in as background evidence the stress and depression that Plaintiff
experienced following the stop-reassignments and decreased pay, see Chertkova, 92 F.3d at 90
(instructing that the court must view plaintiff’s constructive discharge allegations regarding his
working conditions on a cumulative basis), Plaintiff still cannot meet the high bar for
establishing a constructive discharge claim, which requires, inter alia, a showing that the
employer “deliberately [made] an employee’s working conditions so intolerable that the
employee is forced into an involuntary resignation,” Pena, 702 F.2d at 325 (emphasis added)
(citation omitted); see Petrosino, 385 F.3d at 229 (describing the two components of a
constructive discharge claim as “the employer’s intentional conduct” against plaintiff and “the
intolerable level” of plaintiff’s work conditions). In order to make this showing, Plaintiff would
have to present evidence showing that the stop-reassignments and resulting loss in pay that

14

caused his stress and depression were racially motivated, which would go to the heart of his
time-barred employment discrimination claim and thus be inadmissible. (Dkt. 65.)11
Thus, based on the totality of the evidence, Plaintiff’s constructive discharge claim
cannot survive summary judgment.
CONCLUSION
For the reasons described above, there is no genuine issue of material fact as to Plaintiff’s
constructive discharge claim. The Court grants Defendant’s Motion for Summary Judgment.12
This case is dismissed with prejudice. The Clerk of Court is respectfully requested to enter
judgment and terminate this matter.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: September 25, 2024
Brooklyn, New York

11

Furthermore, even if Plaintiff were permitted to introduce such evidence, it likely
would be insufficient to make the requisite showing of racial animus. Plaintiff does not dispute,
that the gross pay he received between October 2016 (the first reassignment of stops) and August
2017 (Plaintiff’s resignation) was within the acceptable gross pay amount pursuant to the terms
of the CBA. (See Def.’s 56.1 ¶¶ 30, 40; see generally Pl.’s Opp’n.)
Plaintiff’s request for punitive damages under Title VII is not a standalone cause of
action and the Court therefore does not discuss it. See Kaye v. Storm King Sch., No. 11-CV3369 (VB), 2011 WL 7101193, at *5 n.3 (S.D.N.Y. Nov. 18, 2011) (explaining that “42 U.S.C.
§ 1981a is not an independent cause of action, but rather functions as a remedy provision for
violations of Title VII”).
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