Daniel v. Autozone, Inc. et al

Filing 50

MEMORANDUM-DECISION and ORDER - That defendants' 41 Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART as follows: DENIED with respect to her hostile work environment claims against Savage and Bush pursuant to section 1981 an d the NYSHRL, and GRANTED in all other respects, and Daniel's claims of discrimination and retaliation, as well as her hostile work environment claim against AutoZoners, LLC only, and her Title VII claims against Savage and Bush, are DISMISSED. That the Clerk terminate AutoZoners, LLC as a party to this action. That all claims against AutoZone, Inc. are DISMISSED, and the Clerk is directed to terminate it as a party to this action. That this case is trial ready and the Clerk shall issue a trial scheduling order in due course. Signed by Chief Judge Gary L. Sharpe on 5/6/2015. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
DAWN A. DANIEL,
Plaintiff,

1:13-cv-118
(GLS/RFT)

v.
AUTOZONE, INC. et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Cooper, Erving Law Firm
Saratoga Office
63 Putnam Street, Suite 202
Saratoga Springs, NY 12866

SARAH J. BURGER, ESQ.

FOR THE DEFENDANTS:
AutoZone, Inc.; AutoZoners, LLC; Todd
Bush; Heath H. Savage
Bond, Schoeneck Law Firm
MICHAEL D. BILLOK, ESQ.
111 Washington Avenue
Albany, NY 12210-2280
Ricky V. Martin
Ricky V. Martin
Pro Se
2055 Route 40
Schaghticoke, NY 12154
Gary L. Sharpe
Chief Judge

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Dawn A. Daniel commenced this action against defendants
AutoZone, Inc., AutoZoners, LLC, Todd Bush, Heath H. Savage
(hereinafter “defendants”), and defendant pro se Ricky V. Martin, alleging
violations of Title VII of the Civil Rights Act of 1964,1 42 U.S.C. § 1981, and
the New York State Human Rights Law2 for discrimination based on race
and gender and retaliation. (See generally Am. Compl., Dkt. No. 23.)
Pending before the court is defendants’ motion for summary judgment.3
(Dkt. No. 41.) For the reasons that follow, the motion is granted in part and
denied in part.
II. Background4
1

See 42 U.S.C. §§ 2000e–2000e-17.

2

See N.Y. Exec. Law §§ 290-301.

3

The pending motion for summary judgment has been filed on behalf of all defendants
except Martin. (Dkt. No. 43, Attach. 1 at 2 n.2.) Notably, Martin has not filed an answer to the
amended complaint, nor has he otherwise appeared in this action since appearing at the initial
Rule 16 conference, as reflected by the court’s May 1, 2013 text minute entry, which predated
the filing of the operative pleading in this case.
4

Unless otherwise noted, the facts are not in dispute. Further, as highlighted by
defendants, (Dkt. No. 48 at 3-8), Daniel’s failure to comply with Local Rule 7.1(a)(3) by
“set[ting] forth a specific citation to the record where the factual issue arises” in many of her
conclusory denials of facts asserted in defendants’ statement of material facts, (compare Dkt.
No. 43, with Dkt. No. 46, Attach. 1), is not without consequences. Accordingly, defendants’

2

Daniel, an African-American female, began her employment with
AutoZoners as a sales associate at an AutoZone store in Bellmore, New
York in June 2008. (Defs.’ Statement of Material Facts (SMF) ¶¶ 1, 4, 8,
Dkt. No. 43.) After requesting a transfer, she began working at the
AutoZone store in Troy, New York in July 2010. (Id. ¶¶ 11, 13.) One of her
coworkers throughout her employment at that store was Martin, a
Caucasian male. (Id. ¶¶ 7, 17.) Savage, the store manager for the Troy
location, was Daniel’s direct supervisor on a daily basis, (id. ¶ 15), and
Bush, the district manager for the region which included the Troy store,
was responsible for, among other things, personnel decisions, including
terminations, (id. ¶ 16).
According to Daniel, within a short time of transferring to the Troy
location and commencing her employment there, several coworkers began
subjecting her to a litany of harassing conduct and racially-motivated
comments. (Dkt. No. 41, Attach. 2 at 10.) Several AutoZone employees
engaged in this harassment, including Martin. (Id.) Daniel maintains that
on numerous occasions she was called names, including “black ass,”

properly supported and uncontroverted facts are deemed admitted.

3

“Medusa,” “Nucka,”5 “duber,” and “idiot,” was told that her “kind isn’t
welcome here,” was threatened with physical violence, and was told by one
coworker that “black people hang at [his] house . . . in trees.” (Id. at 9-10,
12, 14, 27-29.) Daniel claims that she consistently complained about this
harassment to Savage, who took no action to stop it. (Id. at 11-12.)
According to Daniel, she complained “so many times that [Savage] would
say that all you do is complain,” and would tell her to “shut [her] trap and
learn how to keep [her] mouth closed sometimes,” (id. at 12), although
Savage denies ever receiving any such complaints, (Dkt. No. 41, Attach. 8
¶¶ 19, 29-32). Daniel also claims that Bush witnessed the conduct firsthand during his occasional visits to the store, (Dkt. No. 41, Attach. 2 at 12),
though Bush denies ever “witness[ing] any AutoZoners employee mistreat
Daniel in any way during [his] periodic visits to the Troy AutoZone store,”
(Dkt. No. 41, Attach. 6 ¶ 19).
In early 2012, Daniel took a leave of absence from work as a result of
a health issue. (Defs.’ SMF ¶ 36.) Upon her return to work, Daniel noted
that her relationship with Martin deteriorated, as he continued to be rude to

5

Daniel understood this term to be another word for “nigger.” (Dkt. No. 41, Attach. 3 at

7.)

4

her, cursed at her in front of customers and managers, and “started putting
his hands on [her] around that time.” (Id. ¶¶ 39-40; Dkt. No. 41, Attach. 2
at 30.) On May 2, 2012, while at work, Daniel and Martin had a physical
altercation. (Defs.’ SMF ¶¶ 41-42.) The parties dispute exactly what
happened during this confrontation. Defendants assert that Daniel “hit[ ]
Martin on the back of his head,” because “Martin had made a comment
about Daniel’s husband that she found offensive.” (Id. ¶¶ 42-43.) Daniel
contends that she merely “tap[ped] him” on the back of the head, (Dkt. No.
41, Attach. 2 at 46), or “brush[ed her] three fingers across the back of his
neck,” (Dkt. No. 42, Attach. 2 at 3). At that point, Martin then threw a gas
can at Daniel, which hit her in the leg. (Defs.’ SMF ¶ 45; Pl.’s SMF ¶ 166,
Dkt. No. 46, Attach. 1 at 12-18.)
Daniel did not immediately report the incident to her employer, her
stated reason being that she “knew it would lead to termination for both”
her and Martin. (Defs.’ SMF ¶¶ 49-50; Dkt. No. 41, Attach. 2 at 48.) The
next day, while working with Bush at a different location, Martin reported
the incident to Bush, who then relayed notice of the incident to Hope Reitz,
a Regional Human Resources Manager. (Defs.’ SMF ¶¶ 51-52; Dkt. No.
41, Attach. 6 ¶¶ 5, 8.) Reitz subsequently began an investigation, during
5

which she interviewed several individuals involved in the incident, including
both Martin and Daniel, as well as other employees who may have
witnessed the events. (Defs.’ SMF ¶¶ 53-87; Dkt. No. 41, Attach. 6 ¶¶ 910; Dkt. No. 42, Attachs. 1-9.) Upon completion of the investigation, Reitz
recommended that both Martin and Daniel be terminated for violating
AutoZoners’ workplace violence policy. (Dkt. No. 41, Attach. 6 ¶ 12; Dkt.
No. 42, Attach. 19.) This recommendation was adopted by Bush and his
supervisor, Regional Manager David Strange, and in June 2012, both
Martin and Daniel were terminated within a day of one another. (Defs.’
SMF ¶¶ 91, 93-94; Dkt. No. 41, Attach. 6 ¶¶ 13-15.)
Daniel subsequently commenced this action with the filing of a
complaint on January 31, 2013. (Compl., Dkt. No. 1.) Pursuant to the
parties’ stipulation, (Dkt. No. 22), she filed an amended complaint on June
14, 2013, (Am. Compl.), and defendants subsequently filed their nowpending motion for summary judgment, (Dkt. No. 41).
III. Standard of Review
The standard of review pursuant to Fed. R. Civ. P. 56 is well
established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Wagner v. Swarts,
6

827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v.
Sprague, 489 F. App’x 500 (2d Cir. 2012).
IV. Discussion
A.

Discrimination6
Turning to the merits of Daniel’s claims, defendants7 argue that
6

At the outset, the court notes that, in her response to defendants’ motion, Daniel
argues that two witness declarations submitted by defendants in connection with their motion
“should be stricken and disregarded by the court” because defendants “failed to disclose” the
two individuals “as potential witnesses with discoverable information,” in violation of Federal
Rule of Civil Procedure 26. (Dkt. No. 46 at 9-10.) Daniel’s request is denied.
Generally, otherwise reliable and relevant testimony or evidence may still be
inadmissible if it was not properly and timely disclosed pursuant to Federal Rule of Civil
Procedure 26. See Haas v. Del. & Hudson Ry. Co., 282 F. App’x 84, 85-86 (2d Cir. 2008); see
also Fed. R. Civ. P. 37(c)(1) (“If a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use that information or witness to
supply evidence on a motion . . . unless the failure was substantially justified or is harmless.”).
Rule 26(e) requires a party to supplement its discovery disclosures “in a timely manner if the
party learns that in some material respect the disclosure or response is incomplete or
incorrect, and if the additional or corrective information has not otherwise been made known to
the other parties during the discovery process.” Fed. R. Civ. P. 26(e)(1)(A).
As defendants point out in response to Daniel’s arguments, (Dkt. No. 48 at 1-3), her
assertion that defendants entirely failed to disclose both Joseph Bartolotti and Tyranney
Stevenson during discovery is not entirely forthcoming. Although defendants did not
specifically identify Bartolotti or Stevenson in their initial Rule 26 disclosures as “individuals
likely to have discoverable information that defendants may use to support their defenses,”
(Dkt. No. 46, Attach. 12 at 2-3), which is the only document relied upon by Daniel as support
for her argument, (Dkt. No. 46 at 9), defendants later served responses to Daniel’s
interrogatories, which supplemented their initial disclosures and did specifically name both
Bartolotti and Stevenson, (Dkt. No. 48, Attach. 2 at 4-5, 8). Therefore, Daniel “has . . .
otherwise been made known [of them] during the discovery process,” Fed. R. Civ. P.
26(e)(1)(A), and, accordingly, to the extent Daniel seeks to strike the declarations of Bartolotti
and Stevenson, that request is denied.
7

The court notes that defendants seek dismissal of the entity AutoZone, Inc., as it “is
not the employer of personnel who work at AutoZone stores,” and, thus, is the improper party
to sue in this employment discrimination action. (Dkt. No. 43, Attach. 1 at 2 n.1.) Daniel has
neither disputed this fact, (Defs.’ SMF ¶ 4), nor addressed this issue in her response to
defendants’ motion, and, accordingly, all claims against AutoZone, Inc. are dismissed, and the
Clerk is directed to terminate it as a party to this action.

7

Daniel was terminated for a legitimate, non-discriminatory reason—namely,
her violation of the company’s workplace violence policy—and that she
cannot demonstrate that this stated reason is a pretext for discrimination.
(Dkt. No. 43, Attach. 1 at 12-16.) In response, Daniel briefly states that,
based on the record as a whole, a jury could conclude that her violation of
company policy was not the sole reason for her termination, and that she
was, in fact, terminated for discriminatory reasons. (Dkt. No. 46 at 9.) The
court agrees with defendants.
Under Title VII,8 it is “an unlawful employment practice for an
employer . . . to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Discrimination
claims are analyzed under the McDonnell Douglas burden-shifting rules,
8

Title VII claims and claims of employment discrimination under the New York State
Human Rights Law are governed by the same legal standards. See Schiano v. Quality Payroll
Sys., Inc., 445 F.3d 597, 609 (2d Cir. 2006); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d
708, 714-15 (2d Cir. 1996). Similarly, “[b]oth the Supreme Court and Second Circuit have
treated the substantive issues arising under Title VII and § 1981 identically,” Staff v. Pall
Corp., 233 F. Supp. 2d 516, 527 (S.D.N.Y. 2002) (citing Patterson v. McLean Credit Union,
491 U.S. 164, 186 (1989); Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir.
1998)), aff’d 76 F. App’x 366 (2d Cir. 2003). Thus, Daniel’s claims pursuant to 42 U.S.C.
§ 1981 and the Human Rights Law survive or fail on the same basis as her analogous claims
under Title VII, with the exception of her hostile work environment claims, as discussed further
below.

8

which place upon the plaintiff the initial burden of making out a prima facie
case of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973). To satisfy this initial burden, the plaintiff “‘must show: (1)
[s]he belonged to a protected class; (2) [s]he was qualified for the position
[s]he held; (3) [s]he suffered an adverse employment action; and (4) that
the adverse employment action occurred under circumstances giving rise
to an inference of discriminatory intent.’” Brown v. City of Syracuse, 673
F.3d 141, 150 (2d Cir. 2012) (quoting Holcomb v. Iona Coll., 521 F.3d 130,
138 (2d Cir. 2008)).
“A plaintiff’s establishment of a prima facie case gives rise to a
presumption of unlawful discrimination that shifts the burden of production
to the defendant, who must proffer a legitimate, nondiscriminatory reason
for the challenged employment action.” Woodman v. WWOR-TV, Inc., 411
F.3d 69, 76 (2d Cir. 2005) (internal quotation marks and citations omitted).
If the defendant comes forward with a legitimate, nondiscriminatory reason
for the challenged employment action, the presumption of discrimination
drops out of the analysis, and the defendant “will be entitled to summary
judgment . . . unless the plaintiff can point to evidence that reasonably
supports a finding of prohibited discrimination.” James v. New York Racing
9

Ass’n, 233 F.3d 149, 154 (2d Cir. 2000).
Ultimately, once the burden shifts back to the plaintiff, she must
show, “without the benefit of the presumption, that the employer’s
determination was in fact the result of racial discrimination.” Holcomb, 521
F.3d at 138. The plaintiff must demonstrate “by a preponderance of the
evidence that the legitimate reasons offered by the defendant were not its
true reasons, but were a pretext for discrimination.” Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). As further explained by the
Supreme Court, to demonstrate pretext, a plaintiff must show “both that the
[employer’s offered] reason was false, and that discrimination was the real
reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993); see
Fisher v. Vassar Coll., 70 F.3d 1420, 1433 (2d Cir. 1995). However,
conclusory allegations of discrimination are insufficient to defeat a motion
for summary judgment. See Holcomb, 521 F.3d at 137; Schwapp v. Town
of Avon, 118 F.3d 106, 110 (2d Cir. 1997).
While defendants “deny that [Daniel] can establish a prima facie
case,” their argument focuses on steps two and three of the burden-shifting
analysis: whether defendants had a legitimate, non-discriminatory reason
for terminating Daniel and, if so, whether Daniel can demonstrate that this
10

reason was a pretext for discrimination. (Dkt. No. 43, Attach. 1 at 13 n.3.)
Defendants first argue that Daniel was terminated for a legitimate, nondiscriminatory reason—specifically, her violation of AutoZone’s workplace
violence policy—and have supported this assertion with an affidavit from
Bush, who indicates that Daniel was terminated specifically for violating the
store policy. (Dkt. No. 43, Attach. 1 at 13-14; Dkt. No. 41, Attach. 6 ¶¶ 1213, 15.) Defendants have also provided reports from Reitz’s interviews
with various employees during her investigation, which corroborate her
findings that an altercation did occur between Daniel and Martin. (Dkt. No.
42, Attach. 1 at 2; Dkt. No. 42, Attach. 3 at 2; Dkt. No. 42, Attach. 4 at 3.)
Daniel does not directly refute this stated reason for her termination, and,
tellingly, Daniel herself testified that she did not report the incident between
herself and Martin to her employer because she “knew it would lead to
termination for both” her and Martin. (Dkt. No. 41, Attach. 2 at 48.) Courts
have routinely held that violation of a company policy is a legitimate,
nondiscriminatory basis for termination of an employee. See Giudice v.
Red Robin Int’l, Inc., 555 F. App’x 67, 69 (2d Cir. 2014); Shumway v.
United Parcel Serv., Inc., 118 F.3d 60, 65 (2d Cir. 1997); Pealo v. AAF
McQuay, Inc., 140 F. Supp. 2d 233, 239-40 (N.D.N.Y. 2001) (finding that
11

violation of a company’s harassment policy constituted a legitimate,
nondiscriminatory basis for termination).
Accordingly, the burden shifts to Daniel to demonstrate that this
reason is a pretext for race- or gender-based discrimination. In her
memorandum, Daniel offers almost no response to defendants’ arguments
on her discriminatory termination claim. Without pointing to any evidence
in particular, she merely states that “[t]here is substantial evidence that
casts doubt” on defendants’ stated reason for her termination, and that
ultimately a jury should “consider the evidence of discrimination throughout
[her] employment” in determining whether discriminatory animus was the
true motivation for her termination. (Dkt. No. 46 at 9.)
This unsupported speculation is simply insufficient to defeat
defendants’ argument for summary judgment on Daniel’s discrimination
claim. See Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000)
(finding that a plaintiff must rebut evidence of legitimate, nondiscriminatory
reasons for dismissal with specific evidence tending to show not only that
those reasons were a pretext, but that unlawful discrimination was the real
reason for the employment decision). It is well settled that “‘conclusory
allegations or unsubstantiated speculation’ [are in]sufficient to raise a
12

triable issue of fact as to whether . . . discriminatory animus” played a role
in an adverse employment action. DiGirolamo v. MetLife Grp., Inc., 494 F.
App’x 120, 122 (2d Cir. 2012) (quoting Scotto v. Almenas, 143 F.3d 105,
114 (2d Cir. 1998)); see Grady v. Affiliated Cent., Inc., 130 F.3d 553, 561
(2d Cir. 1997) (finding “purely speculative” assertions of discriminatory
animus insufficient to defeat summary judgment). The court also notes
“that it has no duty to sua sponte sift through the record on a summary
judgment motion in search of a factual dispute.” Kidkarndee v.
Koenigsmann, No. 9:12-CV-0502, 2014 WL 1239319, at *5 (N.D.N.Y. Mar.
25, 2014).
Although Daniel asserts that her “evidence [of discriminatory intent]
includes all of the discriminatory comments and other disparate treatment,”
the court struggles to see how the discriminatory comments she discusses
elsewhere in her opposition memorandum, which were made entirely by
coworkers who are not alleged to have been involved in the decision to
terminate her, (Dkt. No. 46 at 6-9), are relevant to the inquiry as to the
motive behind her termination. To the contrary, “allegedly discriminatory
comments made by a nondecisionmaker are, as a matter of law,
insufficient to raise an inference of discrimination.” De la Cruz v. City of
13

N.Y., 783 F. Supp. 2d 622, 643 (S.D.N.Y. 2011) (citing Price Waterhouse
v. Hopkins, 490 U.S. 228, 277 (1989) (O’Connor, J. concurring)); see
Jones v. Union Pac. R.R. Co., 302 F.3d 735, 743 n.6 (7th Cir. 2002)
(stating that a plaintiff cannot prove discrimination with statements by
nondecisionmakers). Further, her vague reference to “other disparate
treatment,” (Dkt. No. 46 at 9), leaves the court guessing as to which
treatment she is attempting to invoke. This claim is particularly suspect in
light of the fact that Martin, a Caucasian male, was also terminated as a
result of the same incident, (Dkt. No. 41, Attach. 6 ¶¶ 12-14), and
defendants’ uncontroverted facts showing that several other Caucasian
males were terminated for the same reason in recent years, (Dkt. No. 42,
Attach. 10 ¶ 30). Accordingly, because defendants have proffered a
legitimate, nondiscriminatory justification for Daniel’s termination, and she
points to no evidence in the record from which a reasonable juror could
conclude that the decision to terminate her was made because of her race
or gender, her discrimination claims on this basis are dismissed.
B.

Retaliation
Defendants next argue that they are entitled to summary judgment on

Daniel’s retaliation claims because she cannot prove a causal connection
14

between any protected activity in which she engaged and an adverse
employment action. (Dkt. No. 43, Attach. 1 at 15-16.) In response, Daniel
argues that there is evidence from which a jury could find that she was
terminated in retaliation for her complaints of abusive treatment by
coworkers. (Dkt. No. 46 at 7-9.) The court again agrees with defendants.
Title VII provides that “[i]t shall be an unlawful employment practice
for an employer to discriminate against any of his employees . . . because
[that employee] has opposed any practice made an unlawful employment
practice . . . or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing.” 42
U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under
Title VII, 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.” McMenemy v. City of
Rochester, 241 F.3d 279, 282-83 (2d Cir. 2001). After the plaintiff
establishes the foregoing elements, the burden of production shifts to the
defendant to show that there were “legitimate, nondiscriminatory” reasons
for its actions. Raniola v. Bratton, 243 F.3d 610, 625 (2d Cir. 2001).
15

Provided that the defendant makes such a showing, the burden again
shifts, this time back to the plaintiff, “to establish, through either direct or
circumstantial evidence, that the employer’s action was, in fact, motivated
by discriminatory retaliation.” Id.
As limited by their memorandum, defendants argue that there was no
causal connection between any purported protected activity by Daniel—her
complaints about harassing conduct by coworkers—and her termination.
(Dkt. No. 43, Attach. 1 at 15-16.) Simply, Daniel has failed to put forth any
evidence demonstrating that anyone involved in the decision to terminate
her had knowledge of her complaints of harassing conduct by coworkers.
As attested to by Bush, at the conclusion of Reitz’s investigation into the
altercation between Daniel and Martin, Reitz recommended that both
Daniel and Martin be terminated. (Dkt. No. 41, Attach. 6 ¶ 12.) Bush and
Strange adopted that recommendation, and Bush consequently terminated
Daniel for violating company policy. (Id. ¶¶ 13, 15.) Daniel admits that,
prior to a conversation she had with Bush during her termination meeting,
she had not previously complained to him about her treatment by
coworkers. (Defs.’ SMF ¶¶ 100, 102.) Daniel makes no assertion that she
complained to either Reitz or Strange, or that either of them were
16

otherwise aware of her complaints of discriminatory treatment at any point
prior to her termination.
Although Daniel did testify that she complained to Savage and a
coworker, Eric Remington, (Dkt. No. 41, Attach. 2 at 27), and argues that
the temporal proximity between her complaints to Savage and the decision
to terminate her could create an inference of retaliatory motive, (Dkt. No.
46 at 8-9), there is no argument by Daniel, nor any evidence in the record,
that either Savage or Remington were involved in the decision to terminate
her. Thus, even assuming these complaints were followed closely in time
by her termination, the record remains devoid of any indication that anyone
to whom she complained played a role in her termination, or made anyone
else aware of her complaints. To the contrary, Daniel affirmatively asserts
that Savage did not do anything about her complaints. (Dkt. No. 41,
Attach. 2 at 11-12.) Daniel has thus fatally failed to come forth with any
evidence that anyone involved in the decision to terminate her was even
aware of her protected activity prior to taking any adverse employment
action against her, and thus cannot show that she was terminated because
of, or in retaliation for, this activity. See McMenemy, 241 F.3d at 282-83.

17

C.

Hostile Work Environment
With respect to Daniel’s hostile work environment claim, defendants

argue that she has failed to prove both the objective and the subjective
prongs of a hostile work environment cause of action. (Dkt. No. 43, Attach.
1 at 16-22.) Specifically, defendants argue that Daniel’s own testimony
undermines any contention that she found the conduct subjectively
abusive, (id. at 17-18), and that the record evidence supports a conclusion
that the conduct was not sufficiently severe and pervasive to objectively
constitute a hostile work environment, (id. at 19). Defendants also assert
that Daniel is precluded from maintaining a hostile work environment claim
against AutoZoners because she did not avail herself of her employer’s
established anti-harassment procedures. (Id. at 19-22.) In response,
Daniel mentions various incidents of harassment and argues that they
constitute an actionable hostile work environment. (Dkt. No. 46 at 5-7.)
For the following reasons, defendants’ motion for summary judgment on
this claim is granted in part and denied in part.
Where a discrimination claim is predicated on the existence of a
hostile work environment, the plaintiff must demonstrate that the conduct in
question: “(1) is objectively severe or pervasive—that is, creates an
18

environment that a reasonable person would find hostile or abusive; (2)
creates an environment that the plaintiff subjectively perceives as hostile or
abusive; and (3) creates such an environment because of the plaintiff’s . . .
protected characteristic.” Robinson v. Harvard Prot. Servs., 495 F. App’x
140, 141 (2d Cir. 2012) (internal quotation marks omitted). In determining
whether a hostile work environment claim has been established, “courts
should examin[e] the totality of the circumstances, including: the frequency
of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with the victim’s [job] performance.” Rivera v.
Rochester Genesee Reg’l Transp. Auth., 702 F.3d 685, 693 (2d Cir. 2012)
(internal quotation marks and citation omitted).
“Beyond demonstrating a hostile work environment, a plaintiff must
show a basis for imputing the objectionable conduct to the employer.”
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 103 (2d Cir. 2010).
Where, as here, “an employee is the victim of . . . harassment, including
harassment in the form of a hostile work environment, by non-supervisory
co-workers, an employer’s vicarious liability depends on the plaintiff
showing that the employer knew (or reasonably should have known) about
19

the harassment but failed to take appropriate remedial action.” Petrosino
v. Bell Atl., 385 F.3d 210, 225 (2d Cir. 2004). However, an employer may
nonetheless avoid liability via the so-called Faragher-Ellerth affirmative
defense to such claims, which shields an employer from liability for a
hostile work environment if: (1) “the employer exercised reasonable care to
prevent and correct promptly any [discriminatory] harassing behavior,” and
(2) “the plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to avoid
harm otherwise.” Faragher v. City of Boca Raton, 524 U.S. 775, 807
(1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); see
Ferraro v. Kellwood Co., 440 F.3d 96, 101 (2d Cir. 2006). Notably, “[o]ne
way for employers to demonstrate that they exercised reasonable care is to
show that they had an anti-harassment policy in place.” Mack v. Otis
Elevator Co., 326 F.3d 116, 128 (2d Cir. 2003), abrogated on other
grounds by Vance v. Ball State Univ., 133 S. Ct. 2434 (2013).
“Once an employer has satisfied its initial burden of demonstrating
that an employee has completely failed to avail herself of the complaint
procedure, the burden of production shifts to the employee to come
forward with one or more reasons why the employee did not make use of
20

the procedures.” Leopold v. Baccarat, Inc., 239 F.3d 243, 246 (2d Cir.
2001). “The employer may rely upon the absence or inadequacy of such a
justification in carrying its ultimate burden of persuasion.” Id.
As noted above, defendants’ argument as to the merits of Daniel’s
underlying hostile work environment claim is twofold. Defendants argue
that summary judgment in their favor is warranted because: (1) Daniel did
not subjectively find the workplace to be abusive, as demonstrated by her
friendly relationships with several coworkers; and (2) there is record
evidence that contradicts Daniel’s testimony regarding the objective
severity and frequency of offensive comments. (Dkt. No. 43, Attach. 1 at
16-19.) The court finds that there are disputes of material fact as to both
prongs of the claim. As to the subjective element, defendants argue,
relying on one district court case, that Daniel could not have subjectively
found the environment to be hostile, because she “admitted that she was
friends with everybody in the store,” and “admitted to joking around” with
coworkers. (Id. at 17-18 (citing Martinez v. Connecticut, State Library, 817
F. Supp. 2d 28, 51 (D. Conn. 2011)).) While there is evidence in the
record that would support a finding that Daniel at times had a social
relationship with some of her colleagues, the court is unpersuaded that this
21

fact would be incompatible, as a matter of law, with a claim that she
subjectively found the alleged verbal abuse and racial comments, if they
occurred, to be hostile and unwelcome. A jury could infer from her
testimony regarding the frequency with which she complained about the
conduct, (Dkt. No. 41, Attach. 2 at 11-12, 28), or about how it caused her
stress, depression, and sleep problems, (Dkt. No. 41, Attach. 3 at 5), for
example, that the conduct was subjectively severe and pervasive to her.
See Feingold v. New York, 366 F.3d 138, 151 (2d Cir. 2004) (noting that “a
rational fact-finder could conclude that [the plaintiff] subjectively
experienced a hostile work environment” where he “declare[d] in his
affidavit that the hostile treatment took a psychological toll on him, causing
him to become depressed, to dread going to work, to seek a transfer, and
to lose his desire to socialize with people in general”).
With respect to the objective prong, to adopt defendants’ position
would be to make a credibility determination, and credit the testimony of
certain witnesses over others, which is improper at the summary judgment
stage. Although defendants note that Remington could only recall a single
instance of Daniel complaining to him about racial comments by others,
(Dkt. No. 41, Attach. 4 at 23), Daniel points to evidence reflecting more
22

frequent and pervasive incidents of harassment, (see, e.g., Dkt. No. 41,
Attach. 2 at 9; Dkt. No. 46, Attach. 8 at 47-48). There is thus a question of
fact as to whether Daniel was subjected to a hostile work environment, and
defendants are not entitled to summary judgment on this basis.
Despite the questions of fact surrounding the merits of Daniel’s
underlying hostile work environment claim, defendants further argue that,
even if Daniel could establish the existence of a hostile work environment,
AutoZoners would be entitled to summary judgment because Daniel
unreasonably failed to take advantage of preventative or corrective
measures that her employer had in place to deal with such harassment.
(Dkt. No. 43, Attach. 1 at 19-22.) Daniel has failed to address this
argument in any way in her response to defendants’ motion, and, based on
the undisputed facts present here, Daniel’s hostile work environment claim
against her employer, AutoZoners, is dismissed.
The parties do not dispute that AutoZoners had detailed harassment
policies in place, including a structure for reporting discrimination or
harassment. (Defs.’ SMF ¶¶ 30-33; Dkt. No. 42, Attachs. 20, 21.)
Pursuant to these policies, employees were encouraged first to bring
complaints or concerns to their immediate supervisor, and, if they did not
23

feel comfortable doing so, or were not satisfied with the supervisor’s
response, they could direct their complaints to higher levels of
management. (Dkt. No. 42, Attach. 20 at 1-2.) AutoZoners had also
established an 800-number for reporting harassment to “management,
Human Resources or AutoZone Relations.” (Dkt. No. 42, Attach. 21.) As
stated above, “[o]ne way for employers to demonstrate that they exercised
reasonable care is to show that they had an anti-harassment policy in
place.” Mack, 326 F.3d at 128. It is undisputed here that AutoZoners had
such a policy in place and that Daniel had received it and was thus aware
of it. (Defs.’ SMF ¶ 34; Dkt. No. 42, Attach. 18 at 1.) Daniel makes no
argument that this policy/procedure was unreasonable, and she concedes
that she did not pursue these procedures. (Defs.’ SMF ¶ 35.) While
Daniel appears to assert that she had a fear of losing her job if she
reported the harassment, (Dkt. No. 41, Attach. 2 at 28), “[a] credible fear
must be based on more than the employee’s subjective belief,” Leopold,
239 F.3d at 246. “Evidence must be produced to the effect that the
employer has ignored or resisted similar complaints or has taken adverse
actions against employees in response to such complaints.” Id. Daniel
has produced no such evidence, and she conceded that she was not
24

aware of any action being taken against other employees in the past for
reporting harassment. (Defs.’ SMF ¶ 116; Dkt. No. 41, Attach. 2 at 29.)
Therefore, Daniel’s failure to follow her employer’s anti-harassment
procedures shields AutoZoners from liability, even assuming the remarks
were sufficient to create an actionable hostile work environment.
See McPherson v. NYP Holdings, Inc., 227 F. App’x 51, 52 (2d Cir. 2007).
Defendants have therefore demonstrated entitlement to the FaragherEllerth defense, which is not opposed by Daniel, and, accordingly, Daniel’s
hostile work environment claim, to the extent it is asserted against
AutoZoners, is dismissed.
With respect to the individual defendants, Savage and Bush, they
argue that dismissal is merited because Daniel cannot show their personal
involvement in a hostile work environment, as required by section 1981
and the NYSHRL. (Dkt. No. 43, Attach. 1 at 22-24.) Although Daniel has
not addressed these arguments in her response to defendants’ motion,
defendants have not met their burden of demonstrating their entitlement to
judgment as a matter of law on this ground, and thus dismissal of the
hostile work environment claim against Savage and Bush pursuant to
section 1981 and the NYSHRL is not merited at this juncture.
25

It is axiomatic that Title VII does not impose liability on individual
defendants. See Lore v. City of Syracuse, 670 F.3d 127, 169 (2d Cir.
2012). Accordingly, Daniel’s Title VII claims against Savage and Bush are
dismissed. However, an individual defendant may be liable under section
1981. “In order to make out a claim for individual liability under § 1981, a
plaintiff must demonstrate some affirmative link to causally connect the
actor with the discriminatory action . . . . [P]ersonal liability under section
1981 must be predicated on the actor’s personal involvement.” Patterson
v. Cnty. of Oneida, N.Y., 375 F.3d 206, 229 (2d Cir. 2004) (internal
quotation marks and citation omitted). “Personal involvement, within the
meaning of this concept, includes not only direct participation in the alleged
violation but also gross negligence in the supervision of subordinates who
committed the wrongful acts and failure to take action upon receiving
information that [such acts] are occurring.” Id. (citing Colon v. Coughlin, 58
F.3d 865, 873 (2d Cir. 1995)).
Here, defendants argue that neither Savage nor Bush were
personally involved because Savage neither conducted the investigation
into Daniel’s altercation with Martin, nor played any role in the decision to
terminate her, and because Daniel had never communicated any
26

complaints of harassing behavior directly to Bush, such that he was not
aware of any improper conduct by her coworkers. (Dkt. No. 43, Attach. 1
at 22-24.) However, Daniel has proffered evidence from which the
factfinder could conclude that both Savage and Bush knew of the allegedly
hostile work environment, yet “fail[ed] to take action upon receiving [this]
information,” Patterson, 375 F.3d at 229, and there is thus a question of
fact that requires resolution by a jury. By way of example, Daniel testified
that she complained to Savage “about being called a black ass” nearly
“every time that [she] worked with [him],” and that she complained “so
many times that [Savage] would say that all [she] do[es] is complain,” and
urged her to “keep [her] mouth closed.” (Dkt. No. 41, Attach. 2 at 11-12.)
Daniel further testified that she often complained to Savage about being
told her “kind is not welcome here” and about being called other raciallycharged names. (Id. at 12-14.) Savage denied ever “receiv[ing] reports or
complaints that [racist] remarks were being made,” and affirmatively stated
that “Daniel never complained to [him] about any mistreatment by other
employees during the course of her employment.” (Dkt. No. 41, Attach. 8
¶¶ 19, 32.)
Similarly, while defendants argue that Bush first became aware of the
27

purported abuse of Daniel during the meeting at which she was terminated
because that was the first time she had complained directly to him, (Dkt.
No. 43, Attach. 1 at 23; Defs.’ SMF ¶¶ 100-02), Daniel has testified that
Bush witnessed the behavior and heard the derogatory comments firsthand on the occasions when he was in the store, (Dkt. No. 41, Attach. 2 at
12). Bush himself denies ever “witness[ing] any . . . employee mistreat
Daniel in any way during [his] periodic visits to the . . . store.” (Dkt. No. 41,
Attach. 6 ¶ 19.) The resolution of these disputed facts is necessary in
order to determine whether Savage and Bush were aware of a possible
hostile work environment yet failed to act, and, thus, whether they were
personally involved for purposes of section 1981. For this reason,
defendants’ motion is denied to the extent it seeks dismissal of Daniel’s
hostile work environment claim against Savage and Bush under section
1981 and the NYSHRL.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion for summary judgment (Dkt. No.
41) is GRANTED IN PART and DENIED IN PART as follows:
DENIED with respect to her hostile work environment claims
28

against Savage and Bush pursuant to section 1981 and the
NYSHRL, and
GRANTED in all other respects, and Daniel’s claims of
discrimination and retaliation, as well as her hostile work
environment claim against AutoZoners, LLC only, and her Title
VII claims against Savage and Bush, are DISMISSED; and it is
further
ORDERED that the Clerk terminate AutoZoners, LLC as a party to
this action; and it is further
ORDERED that all claims against AutoZone, Inc. are DISMISSED,
and the Clerk is directed to terminate it as a party to this action; and it is
further
ORDERED that this case is trial ready and the Clerk shall issue a
trial scheduling order in due course; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
May 6, 2015
Albany, New York
29