Barr v. Bass Pro Shops
Filing
71
ORDER granting 51 Motion for Summary Judgment and dismissing Plaintiff's 1 Complaint with prejudice. Signed by Judge Brenda K. Sannes on 12/13/2019. (Copy served on Plaintiff via regular and certified mail)(rjb, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
SHAWNTÉ BARR,
Plaintiff,
5:17-cv-00378 (BKS/ML)
v.
BASS PRO OUTDOOR WORLD, LLC,
Defendant.
____________________________________________
Appearances:
Plaintiff pro se:
Shawnté Barr
Auburn, New York
For Defendant:
Jacqueline Phipps Polito
Pamela S.C. Reynolds
Littler Mendelson, P.C.
375 Woodcliff Drive, Suite 2D
Fairport, New York 14450
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I.
INTRODUCTION
Plaintiff Shawnté Barr brings this action pro se under Title VII of the Civil Rights Act of
1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq., against her former employer,
Defendant Bass Pro Outdoor World, LLC (“Bass Pro”)1 alleging that it failed to promote her and
subjected her to a hostile work environment on the basis of her race. (Dkt. No. 1). Defendant
moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No.
1
Defendant was originally incorrectly sued as Bass Pro Shops. (Dkt. No. 1). The Court’s docket sheet has been
updated to reflect its correct name, Bass Pro Outdoor World, LLC. (Dkt. No. 27).
51). Plaintiff opposes. (Dkt. No. 56). For the reasons set forth below, Defendant’s motion for
summary judgment is granted.
II.
FACTS2
A.
Plaintiff’s Employment at Bass Pro
In April or May 2014, Plaintiff attended a job fair at Cayuga Community College. (Dkt.
No. 1, at 6; Dkt. No. 51-3, at 12). Plaintiff stopped at the Bass Pro booth and asked Karen
Rebuck,3 a Human Resources Manager at Bass Pro’s store in Auburn, New York, whether Bass
Pro was “hiring for office positions.” (Dkt. No. 1, at 6). Rebuck responded that it was not but
asked Plaintiff to leave her resume and complete an application because the “company did a lot
of hiring from within all the time” and that she would keep Plaintiff “in mind if they were hiring
for any office positions.” (Id.). Plaintiff applied for a cashier’s position. (Id.; Dkt. No. 51-3, ¶ 5).
Plaintiff interviewed first with Rebuck, then with Andrea Spingler, the Customer Service
Manager. (Dkt. No. 51-3, ¶¶ 2, 4). During both interviews, Plaintiff emphasized that she “wasn’t
looking for a cashier’s position,” and that she was in her “last semesters of college and would be
receiving [her] Bachelor’s degree by the end of the year.” (Dkt. No. 1, at 6). Rebuck assured
2
When Defendant filed its motion for summary judgment, it provided the Northern District of New York’s
“Notification of the Consequences of Failing to Respond to a Summary Judgment Motion,” (Dkt. No. 51-2), as
required by Local Rule 56.2 and Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620–21 (2d Cir.1999). It advises that a
“[a] response to the defendants’ statement of material facts” must “admit[] and/or den[y] each of the defendants’
assertions in matching numbered paragraphs,” and “support[] each denial with citations to record evidence.” (Id. at
2) (quoting N.D.N.Y. L.R. 7.1(a)(1)). Despite this, Plaintiff failed to include a response to Defendant’s Statement of
Material Facts, (Dkt. No. 51-6), or cite record evidence in denying and disputing any of the facts stated by
Defendant. (See Dkt. No. 56). Under these circumstances, the Court may “deem admitted any properly supported
facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert.” Local
Rule 7.1(a)(3). While the Court “is not required to consider what the parties fail to point out,” in deference to
Plaintiff’s pro se status and out of an abundance of caution, the Court has nevertheless conducted “an assiduous
review of the record” to determine whether there is evidence that might support Plaintiff’s claims. Holtz v.
Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001). Therefore, the facts have been drawn from Defendant’s statement
of material facts, (Dkt. No. 51-6), the Complaint, which is verified, (Dkt. No. 1), and the exhibits, depositions, and
declarations attached to Plaintiff’s opposition to the motion for summary judgment, (Dkt. No. 56). The facts are
taken in the light most favorable to Plaintiff.
3
Although Ms. Rebuck’s name was spelled “Raybuk” in the Complaint, (Dkt. No. 1), as the parties now appear to
agree Rebuck is correct, (Dkt. No. 51-1; Dkt. No. 56), the Court utilizes this spelling.
2
Plaintiff that she “could move up in the company quickly” if she “took the cashiers position.”
(Id.). Spingler told Plaintiff that if she started as a cashier, Spingler “would ensure that [Plaintiff]
would move up in the company quickly” and that “she had two positions in Credit Cards and
Customer Service opening in the summer that [Plaintiff] would be perfect for.” (Id.). According
to Plaintiff, Spingler did “not specifically” promise her the “Credit Cards” position but the
“customer service [position] was [specifically promised].” (Dkt. No. 56-5, at 27). Plaintiff
accepted the cashier’s position but told Rebuck that she “was only accepting the position with
the hopes that [she] would be able to move up within the company.” (Dkt. No. 1, at 6).
Plaintiff began working at Bass Pro on May 21, 2014. (Dkt. No. 51-3, at 24). Her starting
salary was $8.00 an hour. (Id.). Spingler and other Team Leads—or shift supervisors—gave
extra work to other cashiers “to do away from the registers” but gave Plaintiff “menial tasks . . .
to keep [her] stationary at the register.” (Dkt. No. 1, at 7). Additionally, during Plaintiff’s “first
weeks” at the store, “a Team Lead . . . became physical” with Plaintiff, and “pushed [Plaintiff]
out of the way” when she asked for help with a customer. (Id. at 9). Plaintiff did not report this
incident to the store manager. (Id.)
On or about May 29, 2014, Plaintiff was assisting a customer at the cash register and
requested assistance with a price change from a Team Lead. (Id.). Plaintiff asked the customer to
wait while she went to find the Team Lead, who was not “standing behind the podium.” (Id.).
When the Team Lead returned, she yelled at Plaintiff “in front of the customer, and was rude,
telling [Plaintiff that she] shouldn’t have made [the customer] wait.” (Id.).
After Plaintiff was hired, Defendant hired six new front-end cashiers, including two white
females, who “were promoted to the jobs” Spingler had said Plaintiff “was qualified for,” and
who Plaintiff had helped to train after they were hired, and one white male, who was moved to
3
the Fishing Department. (Id. at 7). Plaintiff never applied for these positions or any other position
at Bass Pro. (Dkt. No. 51-6, ¶ 16).
At one point, a Team Lead, noting that Plaintiff had a short shift, asked Plaintiff if she
“wanted to answer phones . . . in the cash office.” (Dkt. No. 1, at 8). Before Plaintiff could say
yes, Store Manager Rob Barber “lightly shook his head no.” (Dkt. No. 56-6, at 50). Plaintiff
“was sent to the generic registers, which was against store policy, because there were already
enough cashiers on that day.” (Dkt. No. 1, at 8).
In summer 2014, people “in trucks with Bass Pro decal[s]” began driving down
Plaintiff’s street. (Dkt. No. 1, at 15; Dkt. No. 51-2, at 39–40). There were “kids riding by and
trucks being loud and obnoxious.” (Dkt. No. 51-2, at 40). Plaintiff has “lived on [her] street for
over 25 years” and “ knows what’s normal and not normal for [her] street, backwoods behavior
on [her] street isn’t normal.” (Dkt. No. 1, at 15).
Plaintiff received multiple assignments to the “mall registers” in June and July 2014.
(Dkt. No. 1, at 9). The mall registers were in the back of the store and led into the Finger Lakes
Mall and were in “an area isolated from the front-end registers, as well as other people.” (Id.).
When she arrived to work on August 27, 2014, Team Lead Kathleen Harris asked Plaintiff to
work at the mall registers. (Id.; Dkt. No. 51-3, at 57). Because Plaintiff had worked at the mall
registers during her previous two shifts, Plaintiff asked Harris if someone else could work there.
(Dkt. No. 1, at 9). Harris took the issue to Spingler. (Id.). When Spingler asked Plaintiff “what
. . . the problem” was, Plaintiff suggested that because none of the cashiers liked working at the
mall registers, they should “switch after a couple of hours during our shifts instead of staying
down there our whole shift.” (Id.). Spingler “got angry and emotional” with Plaintiff. (Id.).
“After the incident” with Harris and Spingler, Plaintiff was “called in the office to speak with
4
upper management,” including Barber and Assistant Store Manager Bob Ryan, and was “written
up for having an attitude with Kathy [Harris].” (Id.; Dkt. No. 51-2, at 55).
During the meeting with Barber and Ryan, Plaintiff began crying and “reported other
things to them”4 and told them “things that were going on.” (Dkt. No. 51-2, at 57). According to
Barber, “[Plaintiff] express[ed] concerns about her employment but did not provide specific
information about her concerns.” (Dkt. No. 51-5, ¶ 12). Barber told Plaintiff “to come to him
from that point on” if “anything” else happened. (Id.; Dkt. No 51-2, at 57).
Around September 1, 2014, Spingler met with Plaintiff to discuss her 90-Day
Performance Appraisal. (Dkt. No. 51-3, ¶ 13). Plaintiff received a positive assessment of her
performance. (Id. at 54–55; Dkt. No. 56-5, at 16). She received an increase in her hourly rate
from $8.00 to $8.30. (Dkt. No. 51-3, at 55).
On “numerous occasions,” Plaintiff worked the same shift as another employee,
Samantha, who “continuously harassed [Plaintiff] about [her] political views.” (Dkt. No. 1, at
10). Plaintiff told Samantha that she did not “discuss politics in the workplace” but Samantha
“started talking about Obama being the President, and how she liked him at first, but how things
had gotten messed up.” (Id.). “Samantha also continuously talked about her love of the
confederate flag and how people got the wrong idea about what the flag represented.” (Id.).
Samantha told Plaintiff that she had lunch with her friend, “an African American girl,” and they
“were talking about the confederate flag and the girl got mad, got up from the table, and accused
her of being racist,” but that Samantha maintained that “just because she liked wearing the
confederate flag didn’t mean she didn’t like black people.” (Id.). On one occasion, Samantha
4
Plaintiff could not recall what “she reported to them.” (Dkt. No. 51-2, at 57).
5
“rub[bed] in [Plaintiff’s] face” how Plaintiff had to work “the mall registers for [her] entire
shift.” (Id.).
In September 2014, Plaintiff was told by a co-worker named Brooke that “people were
spreading rumors” that Plaintiff had “stormed out.” (Id.; Dkt. No. 51-2, at 58). When Plaintiff
“went to the store manager, Rob Barber, and told him about this,” he told Plaintiff “to ignore it.”
(Dkt. No. 1, at 10). On another occasion, Brooke “got [Plaintiff’s] attention . . . [and] she showed
[her] that she was wearing a shirt with a confederate flag on the back of it.” (Id. at 11).
During the “holiday season of 2014,” Plaintiff noticed a “sign posted that said the Fishing
Department was looking for a Team Lead.” (Id. at 7). When Plaintiff talked to Rebuck about the
position, Rebuck said she was not “qualified for the position,” (id.), because Plaintiff “had not
been there long enough.” (Dkt. No. 51-2, at 72). Plaintiff heard one employee from the Fishing
Department say that he did not “know anything about fishing.” (Dkt. No. 1, at 7).
After hiring Plaintiff, Rebuck and Spingler asked Plaintiff to “friend” them “on
Facebook,” but Plaintiff did not because it was her “personal page” and they may not have
understood it without getting to know her first. (Id. at 10). Plaintiff is “a strong advocate of
learning about African and African American History, and [her Facebook] post talked about
lynching’s [sic], the Jim Crow south, the beauty of Africa.” (Id. at 10–11). Plaintiff noticed in
late 2014 and early 2015 that her “co-workers would walk past [her] quoting [her] Facebook
posts.” (Id. at 10). Additionally, a co-worker “who was working next to [Plaintiff] started singing
a song [she] posted on Facebook.” (Id. at 11). Plaintiff complained to Barber, but he told her to
“ignore it.” (Id.). After that, Plaintiff felt that she did not “have anyone to turn to at the store.”
(Id.).
6
During the 2014 holiday season, a co-worker named Jocelyn “stood right behind
[Plaintiff], burped in [her] ear, and said ‘I don’t excuse my burps.’” (Id. at 11). Plaintiff told
Spingler about the incident, who could “barely hold her laughter in” but made Jocelyn
“apologize to [Plaintiff].” (Id.) Plaintiff also complained to Spingler “about being harassed,
various harassments, quite a few. To the point where [Spingler] asked [Plaintiff] if she wanted to
move to a different department.”5 (Dkt. No. 56-6, at 26). Plaintiff said yes but was not moved.
On November 25, 2014, Team Lead Amy Whaley “stereotyped Plaintiff while she was
using vocabulary cards and asked Plaintiff if they were her tarot cards.” (Dkt. No. 56, at 14; Dkt.
No. 56-1, at 19). On December 2, 2014, Whaley “was rude to an African American customer and
became argumentative with him” in front of Plaintiff. (Dkt. No. 56, at 14; Dkt. No. 56-1, at 21).
When Plaintiff spoke up for the customer, Whaley “started getting really, really upset with
[Plaintiff], started arguing with [her] and yelling.” (Dkt. No. 56-6, at 46).
Other employees “got their friends and family members to harass [Plaintiff] directly.”
(Dkt. No. 1, at 11). On January 17, 2015, for example, a footwear employee “who had been
rolling her eyes” at Plaintiff since she started working at the store, left the footwear department
and “stood behind the register” where Plaintiff was working. (Id.). The employee had a
conversation with a “group of young white males” who had come into the store, and who, after
shopping, approached Plaintiff’s register. (Id.). “One of the white males had a Confederate belt
and a wallet that he wanted [Plaintiff] to see.” (Id.).
In February 2015, Plaintiff agreed to switch shifts with another employee. (Id. at 12).
Spingler observed their conversation and watched Plaintiff and the other employee complete the
necessary paperwork. (Id.). Plaintiff “had a long line so [she] couldn’t stop to look at the paper
5
Plaintiff could not recall the nature of the harassment she complained about to Spingler.
7
work, but [she] trusted [the other employee] to do the right thing.” (Id.). Plaintiff reported for
work on the “day [she] switched” with the other employee. (Id.). When she reported to work for
her “next scheduled shift,” however, she was told that she “had a no call no show.” (Id.). Plaintiff
explained that the other employee “was supposed to work that day because [they] switched.”
(Id.). The other employee had “deliberately filled out the wrong paper work, and Andrea
[Spingler] let her do it.” (Id.).
On February 7, 2015, Plaintiff overheard another employee ask where to take “the black
hangers . . . because different hangers go in different departments” and after being told where to
place the hangers, the employee said: “That’s racist.” (Id. at 12).
On February 27, 2015, Plaintiff overheard and recorded a conversation between two
employees in the breakroom. (Id.). One of the employees was “talking about his huge poster of
Hitler that he had just purchased” as well as “his Swastika plates.” (Id.). Plaintiff complained
about this conversation to her supervisor, Perry Planck. (Id.; Dkt. No. 51-4, ¶ 4). When Planck
spoke “with the male associate who [Plaintiff] said had been talking about swastikas,” “[t]he
associate explained that another associate had asked if he has dinner plates with swastikas on the
them, and he was responding to [that] question.” (Dkt. No. 51-4, ¶ 5). Planck was “unable to
substantiate any conduct had occurred that violated Bass Pro policy.” (Id. ¶¶ 4–6; Dkt. No. 51-6,
¶ 24). Later, when Plaintiff brought up the incident with Ryan and Spingler, Ryan replied, “[s]o
now you’re telling me [the associate who was talking about swastikas] doesn’t have a right to his
own beliefs?” (Dkt. No. 1, at 12).
In May 2015, Plaintiff “started wearing [her] hair in its natural curly pattern”—prior to
that she had been “wearing wigs because it was cooler.” (Id.). “[S]omeone had something to say
about [Plaintiff’s] hair every day . . . and it wasn’t always complimentary” because people “were
8
intimidated by [Plaintiff’s] curly afro.” (Id.). “Samantha Nicholas came up to [Plaintiff] while
[she] was at the mall registers and said she wanted to shave all [Nicholas’] hair off.” (Id.). When
Plaintiff wore a headband with flowers, one of the Team Leads commented that her hair looked
“like a bird’s nest.” (Id. at 13).
Sometime before the “2014-2015 holidays,” Plaintiff left work and found a small dent on
the driver’s side of her car, that “all the tire caps” had been removed, and that there were
scratches where there had not been previously. (Id. at 14). As a result, Plaintiff “started parking
in . . . places other than employee parking.” (Id.). In Spring or Summer 2015, when Rebuck
instructed Plaintiff to park her car in employee parking, Plaintiff explained that “things” had
happened to her car but Rebuck assured her that nothing would happen to her car and told
Plaintiff that was where she “was supposed to park.” (Id.). A few days later, Plaintiff found a
flyer on her car “with the words: The Lynch Mob.” (Id.).
In the spring or summer of 2015, Plaintiff heard “bird and duck calls (which Bass Pro
sells) outside her window” in the middle of the night and has observed “backwoods” people
walking by her house “blowing bird calls or duck calls.” (Id. at 15). These bird calls continued
until the spring or summer of 2016. (Dkt. No. 56-6, at 96). At one point, Plaintiff got a “glimpse
of two, a male and a female, walking up and down the street after [she] heard birdcalls one
night” and they wore coats that had a camo print like the kind that Bass Pro sells. (Dkt. No. 51-2,
at 43–44). All employees are required to have a rewards card, and any employee can look up any
other employee’s address by typing the employee’s name into the rewards card system. (Dkt. No.
1, at 15).
In May 2015, Plaintiff alleges that her co-workers were rude to her twice in connection to
Plaintiff’s use of walkie-talkies. First, when she called the Fishing Department for help with a
9
customer, an associate asked her why she didn’t call a manager. (Id. at 12). Second, Plaintiff
called multiple times on a walkie-talkie for help with a customer, and a supervisor later came
over to her “mad” and told her “she needed to make [herself] clear.” (Id. at 13). After this
incident, Plaintiff was “called into the manager’s office for disciplinarian [sic] complaints.
Employees started complaining about [Plaintiff] for made up reasons. When [she] asked the
assistant manager to make the complaints formal, he said no.” (Id.)
On May 20, 2015, Spingler and Ryan met with Plaintiff for her Annual Review. (Dkt.
No. 51-3, ¶ 16). Plaintiff met or exceeded expectations in all areas except for “ability to work
with others,” for which she received a 2 (“marginal/needs improvement”). (Id. at 77). Plaintiff
received a salary increase to an hourly rate of $9.00. (Id.).
On June 6, 2015, two white employees “were staring at [Plaintiff] like they were waiting
for something to happen. [Plaintiff] asked them why they were looking at [Plaintiff] like that.”
(Dkt. No. 1, at 13). Ryan and Spingler spoke with Plaintiff about the incident, because the
employees had written complaints that said that Plaintiff “was being rude to them.” (Id.; Dkt. No.
51-3, at 71–73).
On June 10, 2015, a customer told Plaintiff he “owned stock in Bass Pro in an
intimidating tone of voice” and then “took out a badge and asked if Bass Pro gave discounts to
police officers.” (Dkt. No. 1, at 14). On other occasions, the timing of which is unclear, Plaintiff
alleges that “[t]here were several customers who came in using tone, body, language, etc. to
intimidate and harass [Plaintiff].” (Id.). For example, a white man approached Plaintiff and asked
“You see those pictures hanging on the wall? . . . Well I am Bass Pro,” and then “walked away
angrily.” (Id.).
10
On June 21, 2015, Plaintiff “had just started taking a new medication and it was causing
side effects.” (Id.). Plaintiff went to the bathroom and took longer than expected, and when she
returned a co-worker “started yelling at [her].” (Id.). By that time at work, “just about everyone
in the store was rolling their eyes at [Plaintiff] and giving [her] dirty looks.” (Id.). Additionally,
Plaintiff claims that she was asked for a doctor’s note regarding her bathroom use when “[Bass
Pro] did not require the same treatment of Caucasian employees.” (Dkt. No. 56, at 15; see also
Dkt. No. 56-6, at 48–49).
Plaintiff alleges several other incidents of harassment, but the record is unclear as to
when they occurred. First, a co-worker named Debbie left a packet of Banana Boat sunscreen
near Plaintiff’s register, which Plaintiff claims “can be perceived as innocent; however, Debbie
is from a generation that depicted African Americans as subhuman and referred to African
Americans as monkeys and apes.” (Dkt. No. 56, at 14; see also Dkt. No. 56-6, at 74–79). Second,
a Team Lead named Brian “said that he was a computer whiz, and that he could do anything on a
computer.” (Dkt. No. 1, at 11). Plaintiff’s “Wi-Fi printer started coming on by itself after
[Plaintiff] started working for Bass Pro Shops.” (Id.). Third, Plaintiff was told to use Locker 187
by a co-worker, and “187 is a [police code for] murder.” (Dkt. No. 56-6, at 82). Finally, when
Plaintiff was shopping at Walmart, “a man and a woman dressed in camouflage jackets were
following [her] around the store . . . they said, ‘You better watch you[r] back.’” (Dkt. No. 1, at
15).
On June 25, 2015 Plaintiff worked her last scheduled shift for Bass Pro. (Dkt. No. 51-3, ¶
8). A few days later, she notified Bass Pro that she had been injured and she could not return at
that time. (Id.). She was put on leave. (Id.). Around October 2015, Plaintiff spoke with Rebuck
about the possibility of returning to work with physical restrictions, but Bass Pro did not
11
accommodate her. (Dkt. No. 51-2, at 27–28).6 Plaintiff had back surgery in November 2015.
(Dkt. No. 56-3, at 4; Dkt. No. 56, at 16). After six months of leave, she was terminated. (Dkt.
No. 56-3, at 2).
B.
Plaintiff’s Filing of an EEOC Charge
Plaintiff testified that she first contacted the EEOC in January 2016, when she called the
EEOC and spoke to an intake operator. (Dkt. No. 51-2, at 35). The EEOC then called her back
and “took [her] statement over the phone.” (Dkt. No. 70-2, at 61). When asked when she filed
her complaint, she stated that “[she] filed [the complaint] in January” because “that’s when [she]
called them, as soon as [she] got the [termination] letter from [Bass Pro].” (Dkt. No. 70-2, at 59).
When Plaintiff spoke with the EEOC in January 2016, she provided the information that
was later included in her charge of discrimination. (Dkt. No. 51-2, at 36). Plaintiff recalls
speaking with the EEOC at some point after the phone call in January but cannot recall when.
(Dkt. No. 70-2, at 61). It appears that the EEOC sent Plaintiff a draft Charge of Discrimination
with a typewritten version of her statement. (Id.; Dkt. No. 51-2, at 74). Plaintiff testified that she
reviewed it, got the charge notarized, and sent it to the EEOC. (Dkt. No. 70-2, at 61). Plaintiff
did not recall when she received the draft charge but testified that it was “probably a few days”
before she signed it on June 28, 2016. (Id.). The charge is filed-stamped received by the EEOC
on July 5, 2016. (Dkt. No. 51-2, at 74).7 Plaintiff argues that she “could not file her EEOC
Charge prior to July 5, 2016 because the EEOC was doing their investigation.” (Dkt. No. 56, at
20). Plaintiff received a right to sue letter on or about January 9, 2017. (Dkt. No. 1, at 19).
6
Plaintiff does not allege that Bass Pro’s failure to accommodate her physical restrictions was discriminatory.
Although the Complaint indicates that Plaintiff filed a charge of discrimination in June 2015, (Dkt. No. 1, at 4),
this appears to be a typo because Plaintiff argues that she filed the charge in January 2016, when she spoke to the
EEOC, and she has not disputed signing the charge on June 28, 2016, as reflected on the charge itself. (Dkt. No. 56,
at 20; Dkt. No. 51-2, at 74).
7
12
III.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if
all the submissions taken together “show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
The moving party bears the initial burden of demonstrating “the absence of a genuine issue of
material fact.” Celotex, 477 U.S. at 323. A fact is “material” if it “might affect the outcome of
the suit under the governing law,” and is genuinely in dispute “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see
also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson, 477 U.S. at
248).
If the moving party meets this burden, the nonmoving party must “set out specific facts
showing a genuine issue for trial.” Anderson, 477 U.S. at 248, 250; see also Celotex, 477 U.S. at
323–24; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). The Court must construe these facts
“in the light most favorable to the non-moving party and must resolve all ambiguities and draw
all reasonable inferences against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d
775, 780 (2d Cir. 2003). Still, the nonmoving party “must do more than simply show that there is
some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986), and cannot rely on “mere speculation or conjecture as to the
true nature of the facts to overcome a motion for summary judgment.” Knight v. U.S. Fire Ins.
Co., 804 F.2d 9, 12 (2d Cir. 1986) (quoting Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d
Cir. 1985)). Furthermore, “[m]ere conclusory allegations or denials cannot by themselves create
a genuine issue of material fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d
13
159, 166 (2d Cir. 2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)
(internal quotation marks and citations omitted)).
IV.
DISCUSSION
Defendant moves for summary judgment on the grounds that (1) Plaintiff’s claims were
untimely filed and are therefore time-barred and (2) the undisputed materials facts do not support
her failure to promote and hostile work environment claims. (Dkt. No. 51). Defendant argues that
equitable tolling is not appropriate because the Plaintiff failed to act with reasonable diligence in
filing her EEOC charge, and there were no extraordinary circumstances that prevented her from
filing a timely charge. (Dkt. No. 51, at 25-26). Plaintiff opposes the motion. (Dkt. No. 56).
A.
Timeliness
“As a precondition to filing a Title VII claim in federal court, a plaintiff must first pursue
available administrative remedies and file a timely complaint with the EEOC.” Hardaway v.
Hartford Pub. Works Dep’t, 879 F.3d 486, 489 (2d Cir. 2018) (quoting Deravin v. Kerik, 335
F.3d 195, 200 (2d Cir. 2003)); see also 42 U.S.C. § 2000e–5(e) and (f). In New York
“individuals aggrieved by acts of discrimination [must] file a charge with the EEOC within . . .
300 days ‘after the alleged unlawful employment practice occurred.’” Vega v. Hempstead Union
Free Sch. Dist., 801 F.3d 72, 78–79 (2d Cir. 2015) (quoting 42 U.S.C. § 2000e–5(e)(1)). Failing
to timely file a charge “acts as a bar to a plaintiff’s ability to bring the action.” Semper v. New
York Methodist Hosp., 786 F. Supp. 2d 566, 576 (E.D.N.Y. 2011) (citing Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 393 (1982)).
Under the EEOC regulations “a charge is sufficient” when the EEOC receives “from the
person making the charge either a written statement or information reduced to writing by the”
EEOC that names the employer and “generally allege[s] the discriminatory act(s).” 29 C.F.R. §§
14
1626.8(b), 1626.6; see Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 396–97 (2008). “In addition
to the information required by the regulations . . . if a filing is to be deemed a charge it must be
reasonably construed as a request for the agency to take remedial action to protect the
employee’s rights or otherwise settle a dispute between the employer and the employee.” Id. at
402.
A charge must also be “signed and shall be verified.” 29 C.F.R. § 1601.9. A verified
untimely charge, however, may “relate back” to an earlier unverified charge. See 29 C.F.R. §
1601.12(b); Edelman v. Lynchburg College, 535 U.S. 106, 122 (2002); Morales v. NYS Dep’t of
Labor, 865 F. Supp. 2d 220, 239 (N.D.N.Y. 2012); Fichera v. State Univ. of New York at
Oswego, No. 5:04-cv-0078, 2007 WL 2874450, at *5, 2007 U.S. Dist. LEXIS 72186, at *18–19
(N.D.N.Y. Sept. 27, 2007).
Plaintiff argues her claim was filed in January 2016 when she initially spoke to the EEOC
and that her verified charge was delayed because “the EEOC was doing their investigation.”
(Dkt. No. 56, at 20). The sparse record in this pro se case does not reflect what information
Plaintiff provided to the EEOC in January 2016 or when the EEOC reduced her charge to
writing. Defendant has not addressed Plaintiff’s argument or the EEOC regulations. See, e.g., 29
C.F.R. §§ 1626.6, 1626.7. Defendant argues that the charge was filed on July 5, 2016, when it
was stamped received by the EEOC. (Dkt. No. 51-1, at 23). In Defendant’s view all of Plaintiff’s
claims occurring before September 9, 2015 (300 days prior) are time-barred.
Morales is instructive in determining whether Plaintiff’s verified charge relates back to
an earlier draft charge. 865 F. Supp. 2d at 239–40. There, the plaintiff alleged she had
participated in a telephone interview with the EEOC. Id. at 237. The EEOC then mailed the
plaintiff a formal discrimination charge “drafted from the information provided to [the EEOC]”
15
and instructed her to notarize it. Id. at 239. She received this document within the 300-day
window but did not mail it until after the window had expired. Id. The court declined to issue
summary judgment due to untimeliness because a reasonable jury could find that the “EEOC had
plaintiff’s written charge” because it had reduced her complaint into a draft charge before the
300 day deadline and this gave “sufficient notice to the EEOC that the plaintiff intended to
‘activate the Act’s machinery’ as required under Title VII.” Id. (quoting Holowecki v. Fed.
Express Corp., 440 F.3d 558, 567 (2d Cir. 2006)).
Here, viewing the evidence in the light most favorable to the pro se Plaintiff, there is
evidence that the EEOC had Plaintiff’s written charge, though unverified, when it mailed her the
draft charge “a few days” before she signed it on June 28, 2016. (Dkt. No. 70-2, at 61). See
Morales, 865 F. Supp. 2d at 239 (“[A] jury could find that the EEOC had plaintiff’s written
charge before March 21, 2006 [even though] it was not yet signed and notarized.”) Any
conclusion that Plaintiff’s oral statement had been reduced to a written charge before then would
be speculative. As such, considering the Plaintiff’s verified charge signed on June 28, 2016, to
relate back to a draft charge a few days before then, the Court will consider all alleged
discriminatory acts under Title VII occurring in or after late August 2015 as timely.8
1.
Equitable Tolling
Plaintiff makes additional arguments as to why her filing is timely. She contends that
equitable tolling is appropriate because she was injured and had surgery in November 2015,
(Dkt. No. 56, at 20). Plaintiff also argues that her hostile work environment claim is not time-
8
The Court notes that the exact date in June is not dispositive in the case. Plaintiff’s last day of work was on June
25, 2015. (Dkt. No. 51-3, ¶ 19). As such, in order for any acts that occurred while she was working at Bass Pro to be
timely, her EEOC charge needed to be filed by April 20, 2016 or earlier. There is no evidence that the EEOC
reduced her charge to writing at any point prior to June, and thus events that occurred during her active employment
at Bass Pro are time-barred unless equitable tolling or the continuing violation doctrine, as discussed infra Sections
IV.A.1 and IV.A.2, apply.
16
barred because it is subject to a continuing violation exception. (Id.). The Court will address each
of these arguments in turn.
The timely charge requirement is “not a jurisdictional prerequisite to suit in federal court,
but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable
tolling.” Zipes, 455 U.S. at 393. Equitable tolling applies only in “rare and exceptional
circumstance[s].” Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (citing Turner v. Johnson,
177 F.3d 390, 391–92 (5th Cir. 1999)). A litigant “seeking equitable tolling must establish two
elements: ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.’” Bolarinwa v. Williams, 593 F.3d
226, 231 (2d Cir. 2010) (quoting Lawrence v. Florida, 549 U.S. 327, 336 (2007)). “Pro se
filings, although held to more lenient standards, are not excused from establishing these
elements.” Arias-Mieses v. CSX Transp., Inc., 630 F. Supp. 2d 328, 333 (S.D.N.Y. 2009).
Plaintiff asserts that equitable tolling is appropriate in this case due to her medical
impairment. Equitable tolling “may be appropriate where the plaintiff’s failure to comply with
the statute of limitations is attributable to the plaintiff’s medical condition.” Brown v.
Parkchester S. Condo., 287 F.3d 58, 60 (2d Cir. 2002); see also Baroor v. New York City Dep’t
of Educ., No. 06-cv-3965, 2009 WL 959537, at *5, 2009 U.S. Dist. LEXIS 29319, at *14
(E.D.N.Y. Apr. 3, 2009) (stating that a plaintiff’s “medical or mental impairment which
prevented plaintiff from timely filing” can constitute “[c]ircumstances that might warrant
equitable tolling”). “Although illness is, on its own, insufficient for equitable tolling purposes,
tolling is appropriate if a plaintiff is ‘unable to protect [his] legal rights because of an overall
inability to function in society’ at the time an action accrues.” Mira v. Kingston, 218 F. Supp. 3d
17
229, 236–37 (S.D.N.Y. 2016) (quoting Gardner v. Wansart, No. 05–cv–3351, 2006 WL
2742043, at *5 n.4, 2006 U.S. Dist. LEXIS 69491, at *14 n.4 (S.D.N.Y. Sept. 25, 2006)).
However, when asserting that a medical condition should toll the statute, a plaintiff’s
“conclusory and vague claim[s], without a particularized description of how her condition
adversely affected her capacity to function generally or in relationship to the pursuit of her rights,
is manifestly insufficient to justify any further inquiry into tolling.” Boos v. Runyon, 201 F.3d
178, 185 (2d Cir. 2000) (holding that equitable tolling was not available when the plaintiff
alleged that she suffered from paranoia, panic attacks, and depression); see also Swanton v.
Graham, No. 07-cv-4113, 2009 WL 1406969, at *5, 2009 U.S. Dist. LEXIS 45806, at *13–14
(E.D.N.Y. May 19, 2009) (concluding that equitable tolling was not warranted where the
plaintiff “failed to provide the Court with any objective evidence substantiating his claims of
disability, detailing how long such a disability lasted, or describing how the disability was
causally related to his failure to timely file”).
The record indicates that Plaintiff was injured and stopped working in June 2015. (Dkt.
No. 51-3, ¶ 19). Plaintiff claims that equitable tolling should apply because of this injury and
because she “was injured and had surgery in November 2015 and was taking pain medication for
both.” (Dkt. No. 56, at 20). According to Plaintiff, she could walk after the injury, (Dkt. No. 70,
at 30), though she had trouble standing for long periods of time. (Id. at 31–32). However, these
assertions are “conclusory and vague” and do not provide a particularized description that would
enable the Court to assess whether her injury and surgery affected her capacity to function or
ability to pursue her rights. Boos, 201 F.3d at 185.
Though Plaintiff’s injury or surgery may have warranted a short period of equitable
tolling, Plaintiff has failed to provide evidence showing how long she was incapacitated, and
18
Plaintiff has not offered any reason why she could not have pursued her rights before surgery or
after recovering. See Molnar v. Legal Sea Foods, Inc., 473 F. Supp. 2d 428, 431 (S.D.N.Y. 2007)
(denying equitable tolling on the ground of medical impairment when the plaintiff was
incapacitated for one week due to the flu because “her illness did not prevent her from pursuing
her legal right to sue during the other 83 days”). Indeed, evidence in the record suggests that
Plaintiff explored the possibility of returning to work at Bass Pro in the fall of 2015, if Bass Pro
could accommodate her need to periodically sit down during shifts. (Dkt. No. 51-2, at 27–28,
76). Plaintiff has failed to provide a particularized description of why her medical condition
prevented her from timely filing an EEOC charge, and thus equitable tolling is inappropriate on
these grounds.9
2.
Continuing Violation Doctrine
Though Title VII requires individuals to file a charge with the EEOC within 300 days,
“[u]nder the continuing violation exception to the Title VII limitations period, if a Title VII
plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of
an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be
timely even if they would be untimely standing alone.” Chin v. Port Auth. of New York & New
Jersey, 685 F.3d 135, 156 (2d Cir. 2012) (citing Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d
Cir. 1993)).
9
Equitable tolling is also unwarranted based on Plaintiff’s interactions with the EEOC, because there is no evidence
that the EEOC engaged in any affirmative misconduct. See Li-Lan Tsai v. Rockefeller Univ., 46 F. App’x 657, 658
(2d Cir. 2002) (holding that equitable tolling was inappropriate where “there [was] no evidence that the EEOC
engaged in any affirmative misconduct” and the plaintiff had not “provided any evidence, such as the name of the
representative or the date on which she spoke with the representative, to corroborate her assertion that an EEOC
representative gave her erroneous information”); Lloyd v. Bear Stearns & Co., No. 99-cv-3323, 2004 WL 2848536,
at *12, 2004 U.S. Dist. LEXIS 24914, at *35–36 (S.D.N.Y. Dec. 9, 2004) (“As plaintiff has also failed to give any
evidence of affirmative misconduct on the part of the EEOC, her failure to bring her charges within the statutory
time period cannot be remedied by equitable tolling.”).
19
In Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002), the Supreme Court
explained that “discrete discriminatory acts are not actionable if time barred, even when they are
related to acts alleged in timely filed charges,” and “[e]ach discrete discriminatory act starts a
new clock for filing charges alleging that act.” Id. Though time-barred, discrete prior acts falling
outside the limitations period may be used as “background evidence in support of a timely
claim.” Id. “[E]mployment practices such as failure to promote, failure to compensate
adequately, undesirable work transfers, and denial of preferred job assignments are considered
discrete acts.” Benjamin v. Brookhaven Sci. Assocs., LLC, 387 F. Supp. 2d 146, 153 (E.D.N.Y.
2005).
By contrast, a hostile work environment involves “repeated conduct” that is “different in
kind from discrete acts.” Morgan, 536 U.S. at 115. It is “composed of a series of separate acts
that collectively constitute one ‘unlawful employment practice.’” Id. at 117 (quoting 42 U.S.C.
§ 2000e-5(e)(1)). Even if “some of the component acts of the hostile work environment fall
outside the statutory time period,” the claim is timely as long as “an act contributing to the claim
occurs within the filing period”; then, “the entire time period of the hostile environment may be
considered by a court for the purposes of determining liability.” Id.; accord Petrosino v. Bell Atl.,
385 F.3d 210, 220 (2d Cir. 2004) (“When . . . a plaintiff’s allegations of discrimination extend
beyond the 300-day limitations period, the nature of the claim determines what consideration
will be given to the earlier conduct.”).
For the continuing violation doctrine to apply to a hostile work environment claim, “a
plaintiff must show both that an incident of harassment occurred within the limitations period,
and that this timely incident was ‘part of the same actionable hostile work environment practice’
as the untimely incidents.’” Bright v. Coca Cola Refreshments USA, Inc., No. 12-cv-234, 2014
20
WL 5587349, at *4, 2014 U.S. Dist. LEXIS 155565, at *8 (E.D.N.Y. Nov. 3, 2014) (quoting
McGullam v. Cedar Graphics, 609 F.3d 70, 76 (2d Cir. 2010)). Courts must “make an
individualized assessment of whether incidents and episodes are related.” McGullam, 609 F.3d at
76. “Incidents that involve different perpetrators, actions, or targets, or are temporally distant
from one another, may be insufficiently related.” Bright, 2014 WL 5587349, at *4, 2014 U.S.
Dist. LEXIS 155565, at *9. A plaintiff may not “‘resurrect stale claims by stating that dissimilar
acts are related,’ for to do so would transform the continuing violation doctrine into ‘a boundless
exception to the statute of limitations.’” Maxton v. Underwriter Labs., Inc., 4 F. Supp. 3d 534,
544 (E.D.N.Y. 2014) (quoting Crosland v. City of New York, 140 F. Supp. 2d 300, 308
(S.D.N.Y. 2001)).
In this case, Plaintiff alleges both a failure to promote and a hostile work environment.
Regarding her failure to promote claim, Plaintiff asserts that her supervisors assured her upon
hiring her in May 2014 that she “would move up in the company quickly,” and indicated that
Plaintiff “would be perfect for” two positions that would be opening that summer—positions in
Credit Cards and Customer Service. (Dkt. No. 1, at 6). Plaintiff was “promised” the Customer
Service position. (Dkt. No. 56-5, at 27). Defendant “overlooked” her for these positions,
however, and hired two white employees instead. (Dkt. No. 1, at 6). Plaintiff further alleges that
when she asked one of her supervisors about a Team Lead position in the Fishing Department
during the holiday season in 2014, the supervisor told her she was not qualified (because Plaintiff
had not worked at Bass Pro long enough). (Id. at 7; Dkt. No. 51-2, at 71–72).
These discrete acts occurred in Summer 2014 and during the holiday season of 2014.
(Dkt. No. 1 at 6–7). They therefore occurred long before late August 2015 (300 days before
21
Plaintiff filed her EEOC charge, as discussed supra Section IV.A) and so Plaintiff’s failure to
promote claim is time-barred.
Regarding her hostile work environment claim, Plaintiff contends the continuing
violation doctrine applies because she claims she was harassed beginning in 2014, while she was
still working at Bass Pro and continuing until after her employment ended, up until 2016,10 by
people “walking by [her house] and hiding in her neighbor’s yard sounding off duck and bird
calls at 3:00am.” (Dkt. No. 56, at 19). During the relevant period—after late August 2015—
Plaintiff was first on leave of absence from Bass Pro, (Dkt. No. 51-3, ¶ 19), and was then
terminated in a letter dated January 8, 2016. (Dkt. No. 56-3, at 2). While pre-August 2015
incidents could be used “as background evidence in support of a timely claim,” Morgan, 536
U.S. at 113, this alleged post-employment harassment at her home fails to state such a claim.
Plaintiff argues that this harassment was connected to her employment at Bass Pro,
constituted further harassment and contributed to a hostile work environment, and extends the
statute of limitations because it is a continuing violation. (Id. at 19–20).11 Defendant argues that
the continuing violation doctrine does not apply because (1) Plaintiff was no longer working at
Bass Pro during this time period, (2) “Plaintiff provides no evidence that these alleged actions
can, in any way, be imputed to Bass Pro,” and (3) “the alleged conduct outside [Plaintiff’s] home
10
In her opposition to summary judgment, Plaintiff claims this harassment lasted until 2017. (Dkt. No. 56, at 19).
However, her opposition brief was not sworn to, unlike her complaint. (Dkt. No. 1, at 5). It is therefore not evidence.
During her deposition, which was taken under oath, Plaintiff stated that the birdcalls ceased in spring or summer
2016. (Dkt. No. 51-2, at 37–38).
11
For the first time in her opposition to summary judgment, which is unsworn, Plaintiff asserts an additional
instance of post-employment harassment: “the Human Resource Manager, Karen Rebuck, show[ed] up at Coast
Physical Therapy right before one of Plaintiff’s appointments.” (Dkt. No. 56, at 2). Plaintiff provides no date or
additional details about this alleged incident. The Court will therefore not consider it. However, the Court notes that
even if this incident were considered, it would not change the Court’s analysis because there is no basis for
concluding it is related to Plaintiff’s employment or the alleged hostile work environment.
22
was completely unrelated to the conduct Plaintiff untimely alleged occurred at the workplace.”
(Dkt. No. 63, at 7–8).
“[E]very iteration of the elements of a hostile work environment claim has required an
existing employer-employee relationship and a showing that the harassment substantively
affected the plaintiff’s working conditions.” Ruggerio v. Dynamic Elec. System Inc., No. 12-cv100, 2012 WL 3043102, at *8, 2012 U.S. Dist. LEXIS 103940, at *25–26 (E.D.N.Y. 2012); see
also Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) (“A hostile work environment claim
requires a showing that the workplace was permeated with discriminatory intimidation, ridicule,
and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment.” (emphasis added)). The 2016 conduct, during a time period in which Plaintiff was
not actively working for Bass Pro “had no effect upon [her] work environment, her working
conditions or her ability to perform her job – the hallmarks of a hostile work environment” and
no reasonable juror could find it to be a component of a hostile work environment claim.
Ruggerio, 2012 WL 3043102, at *9, 2012 U.S. Dist. LEXIS 103940, at *27. While “Title VII
does—in certain instances—protect against post-employment retaliation,” Mira, 218 F. Supp. 3d
at 235, Plaintiff has not brought a retaliation claim and there is no such post-employment
retaliation alleged here. See id., at 235–36 (finding alleged harassment outside the scope of postemployment retaliation because it was not related “to her new job or to any inability to procure
employment”). Therefore, the continuing violation doctrine is inapplicable.
Even if post-employment harassment could constitute a hostile work environment, the
plaintiff must show “a specific basis for imputing the hostile work environment to the
employer.” Fitzgerald v. Henderson, 251 F.3d 345, 357 (2d Cir. 2001). Plaintiff has not
produced evidence “to suggest that anyone [at her prior employer] either perpetrated the things
23
she describes . . . or caused them to happen to her.” Id. at 236. Plaintiff alleges the harassment is
connected to Bass Pro because (1) it began sometime after she started working there, (2) Bass
Pro sold bird and duck calls, and (3) she once spotted two individuals walking down the street
after she heard the bird calls, and they were wearing coats with a type of camo print that was sold
at Bass Pro (but also sold elsewhere). (Dkt. No. 51-2, at 37–48). These vague connections to
Bass Pro do not rise above mere speculation. Nor has Plaintiff offered any connection between
the harassment outside her home (which does not appear to be race-based) and the claims of
racial hostility she experienced in the workplace. As such, Plaintiff has failed to identify
evidence from which a reasonable factfinder could conclude that the harassment outside of her
home was “part of the same actionable hostile work environment practice” as the incidents that
occurred during her employment as Bass Pro. Morgan, 536 U.S. at 103.
Accordingly, the continuing violation doctrine is inapplicable to the facts in this case and
the incidents comprising Plaintiff’s hostile work environment claim, all of which occurred prior
to 300 days before Plaintiff filed her EEOC charge, are time-barred. Defendant is entitled to
summary judgment because both the failure to promote and hostile work environment claims are
time-barred.
V.
CONCLUSION
For these reasons, it is
ORDERED that Defendant’s motion for summary judgment (Dkt. No. 51) is
GRANTED in its entirety; it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED with prejudice; it is
further
24
ORDERED that the Clerk is directed to close this case.
IT IS SO ORDERED.
Dated: December 13, 2019
Syracuse, New York
25
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