Sandia v. Wal-Mart Stores, East LP

Filing 48

MEMORANDUM-DECISION AND ORDER: It is ORDERED that Wal-Mart's # 43 Motion for Summary Judgment is GRANTED. It is further ORDERED that Ruben Sandia's # 6 Amended Complaint is DISMISSED. It is further ORDERED that the Clerk close this case. Signed by Senior Judge Gary L. Sharpe on 8/18/2016. [Copy served upon pro se plaintiff via regular and certified mail.] (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
RUBEN SANDIA,
1:14-cv-377
(GLS/ATB)

Plaintiff,
v.
WAL-MART STORES, EAST LP,

Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Ruben Sandia
Pro Se
1611 Carrie Street
Schenectady, NY 12308
FOR THE DEFENDANT:
Nixon, Peabody Law Firm
50 Jericho Quadrangle
Suite 300
Jericho, NY 11753

JOSEPH J. ORTEGO, ESQ.
JUAN L. GARCIA, ESQ.

Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Ruben Sandia commenced this action against defendant
Wal-Mart Stores, East LP pursuant to Title VII of the Civil Rights Act of

1964,1 seeking damages for employment discrimination on the basis of
race and national origin as well as retaliation and hostile work environment.
(Am. Compl., Dkt. No. 6.) Pending before the court is Wal-Mart’s motion
for summary judgment. (Dkt. No. 43.) For the reasons that follow, the
motion is granted.
II. Background2
A.

Facts
Ruben Sandia is a Guyanese citizen of Indian descent who self-

identifies as Asian.3 (Def.’s Statement of Material Facts (SMF) ¶ 1, Dkt.
No. 43, Attach. 1.) From March 2007 until his April 2013 termination,
Sandia worked as an associate at Wal-Mart in Glenville, New York. (Id.
¶ 3.) Sandia was hired to work in the deli department at a pay rate of
$8.30 per hour. (Id. ¶ 9; Dkt. No. 43, Attach. 11.) Sandia’s wife, Renie
Sandia who is also Guyanese, worked as an associate in the produce

1

See 42 U.S.C. §§ 2000e-2000e-17.

2

Unless otherwise noted, the facts are not in dispute.

3

Notably, Sandia failed to properly respond to Wal-Mart’s statement of material facts
“by admitting and/or denying each of the movant’s assertions in matching numbered
paragraphs” as required by the Local Rules of Practice. See N.D.N.Y. L.R. 7.1(a)(3). Where
properly supported, the facts asserted by Wal-Mart in its statement of material facts are
deemed admitted pursuant to Local Rule 7.1(a)(3).

2

department of the same Wal-Mart. (Def.’s SMF ¶ 4; Dkt. No. 43, Attach. 6
at 17-18.)
Sandia claims that, at some point, he was transferred from the deli
department to the seafood department where he worked alone. (Dkt.
No. 43, Attach. 6 at 21-22.) In July 2009, Sandia was transferred to the
meat department because, according to Sandia, the seafood department
had closed. (Id. at 24.) As a sales associate in the meat department
Sandia continued to perform some tasks related to the seafood area. (Id.
at 25.) He alleges that Wal-Mart cut his pay when he was transferred to
the meat department, however, Sandia could not recall what his pay rate
was as a seafood sales associate. (Dkt. No. 43, Attach. 6 at 24-31.)
Sandia earned $9.20 per hour in the meat department, which increased to
$11.00 per hour at the time of his termination. (Def.’s SMF ¶¶ 10-11.)
When Sandia applied for a position at Wal-Mart in 2007, he filled out
an application form that indicated he was available to work any shift, any
day of the week. (Dkt. No. 43, Attach. 10 at 2; Dkt. No. 43, Attach. 6 at 7475.) Subsequently, in April 2008, he filled out a “Customer Service
Scheduling Availability Associate” form indicating that he was available to
work from noon to eleven in the evening, Wednesday through Sunday.
3

(Dkt. No. 43, Attach. 22 at 3; Dkt. No. 43, Attach. 6 at 76-77; Def.’s
SMF ¶ 37.) Sandia modified his availability in September 2008 to only
work until nine in the evening, but now seven days a week. (Dkt. No. 43,
Attach. 22 at 4; Dkt. No. 43, Attach. 6 at 77; Def.’s SMF ¶ 38.) In
December 2009, Sandia again changed his availability and requested a
day shift on Tuesdays from eight in the morning to five in the evening as
well as Wednesdays and Thursdays off. (Dkt. No. 43, Attach. 22 at 6; Dkt.
No. 43, Attach. 6 at 77-78; Def.’s SMF ¶¶ 39-40.) Wal-Mart granted
Sandia’s request to work the day shift on Tuesdays. (Dkt. No. 43, Attach.
6 at 78; Def.’s SMF ¶ 40.) Sandia testified that his supervisors “never
agree[d] to g[i]ve [him] the day shift when [he] ask[ed] for it,” and “new
people [were] coming and [assigned] a day shift.” (Dkt. No. 43, Attach. 6 at
79.)
Anthony Gaio supervised the associates in the meat department. (Id.
¶ 10.) Sandia testified that he was the only black associate within that
department. (Dkt. No. 43, Attach. 6 at 67.) Sandia is of the belief that
other associates either reported him to managers or would not talk with
him because of his race. (Id. at 64-67, 143.)
During his employment at Wal-Mart, Sandia received performance
4

evaluations. (Def.’s SMF ¶¶ 18, 20-21, 23, 26-28; Dkt. No. 43, Attachs.
12-15, 17, 19, 21.) In both his 2007 and 2008 reviews, supervisors
reported that Sandia needed to improve rotating the inventory, handling
customer complaints and requests, and managing his time. (Dkt. No. 43,
Attachs. 12-13.) Again, in 2009, supervisors reported that Sandia needed
to better manage his time while stocking seafood. (Dkt. No. 43, Attach. 14
at 3.) In 2010, supervisors wrote that Sandia needed to improve his
customer relations skills and this same critique was noted again in his
2013 evaluation. (Dkt. No. 43, Attach. 15; Dkt. No. 43, Attach. 21 at 4.) In
2011, Sandia’s supervisors remarked that he needed to be more familiar
with Wal-Mart’s product line, however, the evaluation was otherwise
positive. (Dkt. No. 43, Attach. 17 at 3.) Finally, in both his 2012 and 2013
evaluations, supervisors noted that Sandia could improve by better
exercising his judgment and focus on himself rather than the work of other
associates. (Dkt. No. 43, Attach. 19 at 3; Dkt. No. 43, Attach. 21 at 3.)
When presented with the 2007, 2009, and 2010 performance evaluations
at his deposition, Sandia contested his supervisor’s assessments. (Dkt.
No. 43, Attach. 6 at 33-34, 38, 42.)
Sandia also has past misconduct reports in his employee file. (Def’s
5

SMF ¶ 17.) Wal-Mart has a “Coaching for Improvement Policy” to address
employee misconduct and discipline. (Id. ¶ 16; Dkt. No. 43, Attach. 9.) A
manager or supervisor may issue “coachings” to employees for
misconduct, which remain active for a year in an employee’s file. (Def.’s
SMF ¶ 16.) To support its motion, Wal-Mart submitted three coachings
that were issued to Sandia during his employment, in 2010, 2011, and
2013, respectively. (Dkt. No. 43, Attachs. 16, 18, 20.) In 2010, Sandia
received a coaching for taking an extended break. (Def.’s SMF ¶ 25; Dkt.
No. 43, Attach. 16.) In 2011, Sandia was issued a coaching for
insubordination for wearing a wool hat in violation of Wal-Mart’s employee
dress code. (Def.’s SMF ¶ 34; Dkt. No. 43, Attach. 18.) Finally, in 2013,
Sandia received a coaching for being argumentative with managers while
on the sales floor. (Def.’s SMF ¶ 35; Dkt. No. 43, Attach. 20.)
Many of Sandia’s allegations arise from an event that occurred in
March 2012. Sandia testified that his supervisor, Gaio, humiliated him in
front of other associates. (Dkt. No. 43, Attach. 6 at 89-93.) Specifically,
Sandia claimed that Gaio sent another associate to bring him into the back
room where Gaio stood with approximately five or six associates and told
Sandia to pick up cardboard boxes that were on the floor. (Id. at 89-90.)
6

Sandia responded that the boxes were not his responsibility because they
were blue, and the boxes he was discarding were brown. (Id. at 90-91.)
Sandia explained that all of the associates laughed at him and mocked him
while he picked up the boxes from the ground. (Id. at 91.) The next day,
Sandia complained to Kirk Christian, the store manager, about the incident
explaining that Gaio humiliated him, but he did not know why. (Id. at 92.)
Sandia also complained to Matt Branson, a marketing manager, and
Rebecca Amado, the regional human resource director who visited the
store to investigate the complaint after Sandia reported the incident by
calling the company’s hotline. (Id. at 93-96.)
After he reported the incident, Sandia testified that Gaio retaliated
against him five times. (Id. at 98-109.) Sandia stated that Gaio issued him
three coachings in retaliation for reporting the March 2012 incident. (Dkt.
No. 43, Attach. 6 at 94, 98-108.) First, Sandia explained that Gaio issued
him a coaching for wearing a wool cap on the sales floor while he was
finishing up work that required that he be in the meat freezer. (Id. at 98101.) As noted above, according to Wal-Mart’s records, this coaching was
actually issued in February 2011. (Dkt. No. 43, Attach. 18.) Next, Sandia
stated that Gaio issued him another coaching after an associate took a
7

picture of empty shelves where Sandia was supposed to have stocked
meat. (Id. at 105-06.) Finally, Sandia complained that Gaio issued him a
coaching for not responding to his call that a customer needed assistance
while Sandia was apparently at lunch.4 (Id. at 106-07.) According to
Sandia, Christian, the store manager, later eliminated the coachings about
the wool cap and empty shelves from his file. (Id. at 58, 108.) Sandia also
testified that Gaio denied his request for assistance from another associate
to help clean up the meat department at closing time and that Gaio
inquired about whether Sandia liked his job. (Id. at 102-05, 108-09.)
Sandia admitted that his pay, position, and duties remained the same after
he reported the March 2012 incident. (Id. at 109-10.)
In addition, on the errata sheet to his deposition transcript, Sandia
recalled additional purported retaliatory conduct. First, he overheard white
associates who were husband and wife state that Gaio allowed them to
work in the same department and have the same shift, lunch break, and
days off. (Dkt. No. 43, Attach. 6 at 143.) Sandia told them that Gaio did
not do this for he and his wife. (Id.) In response, according to Sandia, the

4

Wal-Mart has not presented documentary evidence of coachings that Sandia claims
to have received for failing to stock the shelves in the meat department or failing to aid a
customer.

8

couple reported him to Gaio and Gaio issued him a coaching.5 (Id.)
Sandia also stated that other associates reported him to Gaio for
misconduct including pushing a meat cart out of his way, purportedly
putting a box of raw meat on the wrong shelf, and throwing out spoiled
seafood. (Id.)
On April 13, 2013, Sandia was terminated for insubordination. (Dkt.
No. 43, Attach. 23; Def.’s SMF ¶ 41.) The parties dispute the facts which
led to Sandia’s termination. According to Wal-Mart’s exit interview, Sandia
failed to report to the manager’s office after his name was called on the
store intercom. (Dkt. No. 43, Attach. 23 at 2.) Store managers and
supervisors including Gaio called Sandia to explain why he missed
punching in his time to account for his break. (Id.) Once summoned,
Sandia refused to meet, began to argue with the managers, and accused
Gaio of favoritism. (Id. at 4.) Additionally, Sandia demanded that his wife
be terminated. (Id.) Sandia, on the other hand, contends that he was in
the meat cooler when his name was called over the intercom and could not
hear it. (Dkt. No. 43, Attach. 6 at 82-83.) He acknowledges that he raised
his voice when he spoke to the managers and that he asked for his wife to
5

Again, Wal-Mart has not submitted documentary evidence of this coaching.

9

be terminated over him because he would have to drive her to work as she
did not have a license. (Id. at 84-85.)
After his termination, Sandia timely filed a complaint with the New
York State Division of Human Rights (DHR) alleging unlawful
discrimination and retaliation. (Dkt. No. 43, Attach. 24.) DHR later
dismissed the complaint finding that the evidence did not support that
Sandia’s termination gave rise to unlawful discrimination or retaliation and
issued a right to sue letter. (Dkt. No. 6, Attach. 1.) Thereafter, on April 4,
2014, Sandia commenced this action against Wal-Mart. (See generally
Compl., Dkt. No. 1.)
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,
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.

Employment Discrimination
Wal-Mart argues that it is entitled to summary judgment on Sandia’s
10

Title VII claim because he does not present sufficient evidence to support a
prima facie case of discrimination. (Dkt. No. 43, Attach. 2 at 10.) In
particular, Wal-Mart contends that Sandia’s speculation that he was
terminated because of unlawful discrimination cannot defeat summary
judgment. (Id. at 12.) Furthermore, Wal-Mart asserts that Sandia’s
allegations regarding failure to promote or reduction of wages has no basis
in the record. (Id. at 14-17.) Finally, Wal-Mart maintains that the other
conduct that Sandia complains of is not adverse action warranting relief
under Title VII. (Id. at 17-19.)
In response, Sandia claims that Wal-Mart wrongfully terminated him
because he was later deemed eligible for unemployment benefits by the
New York State Department of Labor as it found that his actions on the day
of his termination did not amount to misconduct. (Dkt. No. 45 at 2, 4; Dkt.
No. 47.) Sandia also contests that he should not have been terminated
because he had generally positive performance evaluations and he was
not insubordinate, Wal-Mart’s basis for his termination. (Dkt. No. 45 at 23.) Finally, Sandia “strongly belie[ves] that [he] was terminated because of
[his r]ace and [n]ational origin.” (Id. at 2.)
It is unlawful for an employer “to discriminate against any individual
11

with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race . . . or national origin.” 42
U.S.C. § 2000e-2(a)(1). To evaluate claims of race or national origin
discrimination, “courts apply the burden-shifting rules first set forth in
McDonnell Douglas Corp. v. Green, [411 U.S. 792 (1973)], which place
upon the plaintiff the initial burden of making out a prima facie case of
discrimination.” Hunter v. Cty. of Albany, 834 F. Supp. 2d 86, 92 (N.D.N.Y.
2011). The plaintiff must demonstrate: “(1) membership in a protected
class; (2) satisfactory job performance; (3) termination from employment or
other adverse employment action; and (4) the ultimate filling of the position
with an individual who is not a member of the protected class.” Id. (internal
quotation marks and citations omitted). “The fourth prong may be satisfied
by demonstrating that the discharge or adverse employment action
occurred under circumstances giving rise to an inference of discrimination
based on the plaintiff’s membership in a protected class.” Id. (internal
quotation marks and citation omitted).
If the plaintiff meets his initial burden, it raises a presumption of
unlawful discrimination, which the defendant must counter with a
legitimate, nondiscriminatory reason for the adverse employment action.
12

See id. (internal quotation marks and citation omitted). The defendant’s
proffer of such reason will eliminate the presumption of discrimination, “and
the defendant ‘will be entitled to summary judgment . . . unless the plaintiff
can point to evidence that reasonably supports a finding of prohibited
discrimination.’” Id. (quoting James v. N.Y. Racing Ass’n, 233 F.3d 149,
154 (2d Cir. 2000)). For that reason, “[t]he 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.’”
Id. (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981)). The plaintiff need not prove “‘that the employer’s proffered
reasons were false or played no role in the employment decision, but only
that they were not the only reasons and that the prohibited factor was at
least one of the motivating factors.’” Id. (quoting Holcomb v. Iona Coll.,
521 F.3d 130 138 (2d Cir. 2008)).
Here, Sandia cannot even meet the minimal burden to state a prima
facie case. See Woodman v. WWOR-TV, Inc., 411 F.3d 69, 80 (2d Cir.
2005). Aside from his conclusory allegations, which are never sufficient to
defeat a summary judgment motion, Wagner, 827 F. Supp. 2d at 92,
Sandia presents no evidence that his termination or Wal-Mart’s other
13

purported adverse action were motivated by discrimination on the basis of
his race or national origin. Instead, Sandia claims that Wal-Mart’s
discrimination against him is its wrongful termination of him for
insubordination. (Dkt. No. 45 at 2.) To demonstrate that he was not
insubordinate Sandia points to the New York State Department of Labor’s
decision that he was eligible for unemployment benefits because his
actions on the day of his termination did not amount to misconduct. (Dkt.
No. 47.) This determination has no bearing on Sandia’s discrimination
claims as the issues are patently distinct. See Hill v. Coca Cola Bottling
Co., 786 F.2d 550, 553 (2d Cir. 1986) (holding that a plaintiff’s
discrimination claim is not precluded by a finding of misconduct by an
unemployment insurance compensation board); Cody v. Darden Rests.,
No. CV 12-0484, 2012 WL 6863922, at *5 (E.D.N.Y. Oct. 11, 2012). Other
than sheer speculation, Sandia provides no other evidence to suggest that
Wal-Mart’s actions were motivated by discrimination. As such, Sandia has
failed to demonstrate that his termination and Wal-Mart’s other purported
adverse action “occurred under circumstances giving rise to an inference
of discrimination based on the plaintiff’s membership in a protected class.”
Hunter, 843 F. Supp. 2d at 92 (internal quotation marks and citation
14

omitted).
B.

Retaliation
Wal-Mart first argues that Sandia has not engaged in protected

activity because his internal complaints in no way relate to a claim of
discrimination. (Dkt. No. 43, Attach. 2 at 21.) In any event, Wal-Mart
maintains that Sandia did not suffer actionable retaliation because: (1) the
temporal relationship between the complaint and his termination is too
remote; and (2) work assignments, issued coachings, and personality
conflicts are not cognizable retaliatory conduct. (Id. at 22-24.) Finally,
Wal-Mart contends that Sandia fails to point to any evidence of retaliatory
animus in the aggrieved of conduct. (Id. at 23.)
Sandia counters that he engaged in protected activity because the
March 2012 incident that he complained of was, in fact, motivated by
discrimination. (Dkt. No. 45 at 4.) After he complained about his
supervisor’s conduct, Sandia asserts that Gaio “retaliate[d] and
micromanaged” him “until [his] termination.” (Id. at 5.) Without citing
record support, Sandia argues that his job responsibilities increased, his
hours were cut, and his pay was reduced. (Id.)
In addition to barring unlawful employment discrimination, Title VII
15

prohibits an employer from “discriminat[ing] against any of his
employees . . . because he has opposed any practice made an unlawful
employment practice by this subchapter, 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). When
evaluating retaliation claims, courts apply the burden-shifting framework
established by McDonnell Douglas. See 411 U.S. 792; see also Gorzynski
v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010). Accordingly, a
plaintiff must first state a prima facie by showing that “he engaged in a
protected activity, such as complaining about race discrimination, and that
his employer took an adverse action in retaliation.” Kirkland v. Cablevision
Sys., 760 F.3d 223, 225 (2d Cir. 2014). The burden then shifts to an
employer to offer a legitimate, non-retaliatory reason for its action. See id.
Once an employer does so, the burden returns to the plaintiff to
demonstrate “that the unlawful retaliation would not have occurred ‘but-for’
the [employer’s] alleged wrongful actions.” Id. at 227.
The court need go no further than the first step of the McDonnell
Douglas framework because, again, Sandia fails to demonstrate a prima
facie case. Sandia complained to the regional human resources director,
16

the marketing manager, and the store manager that Gaio and other
associates humiliated him and mocked him in March 2012. (Dkt. No. 43,
Attach. 6 at 94, 97.) Specifically, at his deposition, Sandia testified to the
following:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.

What did you tell [the store manager] exactly?
I told him what I’m saying here.
That [Gaio] humiliated you in front of other
associates?
Yes.
And mocked you?
Yes.
Did you tell him that was unfair?
Yes.
Did you tell him why you thought it happened?
I have no idea why he did that.

(Id. at 92-93.) Yet, Sandia never complained about conduct prohibited by
Title VII. See 42 U.S.C. §§ 2000e-3(a). To qualify as protected activity, a
plaintiff must “have had a good faith, reasonable belief that [he] was
opposing an employment practice made unlawful by Title VII.” Kelly v.
Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 14 (2d
Cir. 2013) (internal quotations marks and citations omitted). Even if Sandia
“might have believed that any bullying, regardless of whether it was
motivated by impermissible discrimination, constituted a violation of Title
VII . . . , a mere subjective good faith belief is insufficient.” Johnson v. City
17

Univ. of N.Y., 48 F. Supp. 3d 572, 577 (S.D.N.Y. 2014) (internal quotation
marks and citations omitted). Because Sandia fails to point to evidence
that he, in fact, complained about misconduct that he objectively believed
was unlawful discrimination, he did not engage in protected activity. See
Kelly, 716 F.3d at 16; Wimmer v. Suffolk Cty. Police Dep’t, 176 F.3d 125,
134-35 (2d Cir. 1999). Accordingly, Wal-Mart is entitled to summary
judgment on this claim as well.
C.

Hostile Work Environment
Wal-Mart asserts that the Sandia cannot meet the high standard

required of a hostile work environment claim and that his allegations only
amount to “boorish conduct.” (Dkt. No. 43, Attach. 2 at 5.) Furthermore,
Wal-Mart contends that such conduct was unconnected to any
discrimination based on race or national origin. (Id. at 6.) Sandia opposes
and relies almost solely on the March 2012 incident to support his claim.
(Dkt. No. 45 at 2, 4-5.) Sandia also points to Gaio’s micromanagement
and personality conflicts with his supervisors and other associates as
additional evidence of a hostile work environment. (Id. at 5.)
Title VII prohibits an employer from discriminating in the
“compensation, terms, conditions, or privileges of employment, because of
18

[an] individual’s race, color, religion, sex or national origin.” 42 U.S.C.
§ 2000e-2(a)(1). “The phrase terms, conditions, or privileges of
employment evinces a congressional intent to strike at the entire spectrum
of disparate treatment . . . , which includes requiring people to work in a
discriminatorily hostile or abusive environment.” Littlejohn v. City of New
York, 795 F.3d 297, 320 (2d Cir. 2015). That said, “Title VII does not set
forth a general civility code for the American workplace.” Redd v. N.Y.S.
Div. of Parole, 678 F.3d 166, 176 (2d Cir. 2012) (internal quotation marks
and citation omitted).
To establish a hostile work environment claim, “‘a plaintiff must show
that the workplace is permeated with discriminatory intimidation, ridicule,
and insult” that would objectively “be severe or pervasive enough that a
reasonable person would find it hostile or abusive, and the victim must
subjectively perceive the work environment to be abusive.” Littlejohn, 795
F.3d at 320-21 (internal quotation marks and citations omitted). To “meet
the threshold of severity or pervasiveness, incidents must be sufficiently
continuous and concerted rather than episodic or isolated.” Pellegrini v.
Sovereign Hotels, Inc., 740 F. Supp. 2d 344, 351 (N.D.N.Y. 2010) (internal
quotation marks and citations omitted). Furthermore, the conduct must
19

alter the terms and conditions of a plaintiff’s employment. Id.
Here, where Sandia primarily alleges a single incident, the conduct
must be “extraordinarily severe” to demonstrate a claim. Alfano v.
Costello, 294 F.3d 365, 374 (2d Cir. 2002) (collecting cases). In Howley v.
Town of Stratford, for example, the plaintiff defeated summary judgment by
showing that on a single instance a co-worker made obscene, sexist
comments related to her ability to perform her job in a large public work
forum where she was the only female and other men that were present
were her subordinates. See 217 F.3d 141, 154 (2d Cir. 2000). In addition,
the co-worker accused the plaintiff of only being selected as a lieutenant
because she allegedly performed fellatio. See id. The Second Circuit
found that this incident sufficiently altered the terms and conditions of the
plaintiff’s employment because such “gender-based skepticism” could
“impair[] her ability to lead in life-threatening circumstances often faced by
firefighters.” Id. By contrast, it was not a hostile work environment where
the plaintiff suffered a single physical assault by his supervisor, but
remained at the same facility, “in the same position, at the same pay, and
with the same responsibilities.” Mathirampuzha v. Potter, 548 F.3d 70, 79
(2d Cir. 2008). The court reasoned that the assault “was not so severe as
20

to alter materially the plaintiff’s working conditions . . . or an obscene and
humiliating verbal tirade that undermines the victim’s authority in the
workplace.” Id. (internal citations omitted).
The conduct here is clearly less severe than in Mathirampuzha,
nevertheless, Sandia testified that he was humiliated. (Dkt. No. 43, Attach.
6 at 110-11.) However, like Mathirampuzha, Sandia’s pay, position, and
duties remained the same from the March 2012 incident up through his
termination. (Id.) Accordingly, such conduct does not nearly approach the
“extraordinarily severe” standard required for a single incident to form the
basis of a hostile work environment claim. See Alfano, 294 F.3d at 374.
Nor does the additional conduct that Sandia alleges — micromanagement
by his supervisor and personality conflicts with co-workers — come close
to the requisite level of objective severity or pervasiveness. For instance,
Sandia testified that he never heard any derogatory or prejudicial
comments about Asians, African Americans, or persons of Guyanese
origin while at work and cannot otherwise connect conduct by his
supervisors and co-workers with unlawful discrimination. (Dkt. No. 43,
Attach. 6 at 112-13); see Littlejohn, 795 F.3d at 320-21. Accordingly, WalMart is entitled to judgment on this claim.
21

V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Wal-Mart’s motion for summary judgment (Dkt.
No. 43) is GRANTED; and it is further
ORDERED that Sandia’s amended complaint (Dkt. No. 6) is
DISMISSED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
August 18, 2016
Albany, New York

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