Castillo et al v. Time Warner Cable
Filing
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OPINION & ORDER re: 15 MOTION for Summary Judgment. Filed by Time Warner Cable Of New York City. CONCLUSION: For the reasons stated, TWCs motion for summary judgment is DENIED. The Clerk of Court is directed to terminate the motion at Docket #15. SO ORDERED. (Signed by Judge Paul A. Crotty on August 9, 2011) (mov)
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: August 9, 2011
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JUAN CASTILLO and RATAKIT BOONNAK,
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Plaintiffs
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09 Civ. 7644 (PAC)
- against :
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OPINION & ORDER
TIME WARNER CABLE OF NEW YORK CITY, :
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Defendant.
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HONORABLE PAUL A. CROTTY, United States District Judge:
Plaintiffs Juan Castillo (“Castillo”) and Ratakit Boonnak (“Boonnak”) (collectively,
“Plaintiffs”) bring this action under the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
(“Title VII”), New York State Human Rights Law, Executive Law §§ 290, et seq. (“NYHRL”),
and New York City Human Rights Law, Administrative Code §§ 8-101, et seq. (“NYCHRL”)
against their employer Defendant Time Warner Cable of New York City (“TWC”), a division of
Time Warner Entertainment Company, L.P. Plaintiffs allege discrimination based on race and
national origin, in the form of hostile work environment and disparate treatment, as well as
retaliation for engaging in protected activity. (Mem. in Opp. 1.) Castillo brings an additional
disparate treatment claim based on two transfers and two promotion denials.
TWC moves for summary judgment on each claim. While TWC has submitted weighty
proof, and may well be correct in its position, there is no doubt that there are genuine issues of
material fact which preclude granting TWC’s summary judgment motion. Accordingly, the
motion is DENIED.
BACKGROUND
Castillo, a Hispanic male born in the Dominican Republic, began working for TWC in
1989. (Am. Compl. ¶¶ 11-12.) He has worked in installation, the warehouse, service,
construction, and as a technician. (Id. ¶¶ 12-18.) Boonnak, an Asian male born in Thailand,
began working for TWC in 1990. He has worked as an installation technician, and in the
warehouse, laboratory department, and service department. (Id. ¶¶ 30-33.)
Castillo alleges that TWC treats nonwhite employees, including himself, differently than
white employees. (Id. ¶ 19.) White employees are disciplined less harshly and given easier jobs in
safer neighborhoods and in buildings with working elevators, as well as timely access to NCTI
books (which are required to successfully complete courses that impact pay rate and
advancement). (Id. ¶¶ 20-20(a).) In addition, he claims that he was subjected to a hostile work
environment, which worsened after he complained about the unequal treatment of nonwhite
employees. (Id. ¶ 22.) He also contends that the supervisors twice failed to promote him to a
position for which he was qualified, and twice reassigned him to a less desirable position, both
because of his race and national origin, and in retaliation for filing a formal complaint. (Id. ¶¶ 18,
27-28.) Castillo maintains that his work performance and punctuality have always been
satisfactory. (Id. ¶ 17.)
Boonnak makes the same allegations of discriminatory job assignments and discipline,
hostile work environment, and retaliation. (Id. ¶¶ 35, 37-39.) As with Castillo, Boonnak claims
that the harassing treatment continued after he formally complained to TWC’s human resources
regarding the disparate treatment. (Id. ¶¶ 40-42.) Boonnak also maintains that his work
performance and punctuality have always been satisfactory. (Id. ¶ 34.)
Both Plaintiffs allege that TWC’s actions are part of a plan, practice, or pattern of
discrimination against nonwhite employees and retaliation, which has affected them and others
who are similarly situated. (Id. ¶ 26, 42.)
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DISCUSSION
Summary judgment is appropriate when “there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is
material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of producing
evidence on each material element of its claim demonstrating that it is entitled to relief. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court resolves all ambiguities and draws
all factual inferences in favor of the nonmovant, but “only if there is a genuine dispute as to those
facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (internal quotations omitted).
I. Hostile Work Environment
A hostile work environment claim requires the following elements: (1) the harassment was
sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an
abusive working environment; and (2) there is a specific basis for imputing the hostile conduct to
the employer. See Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009). Plaintiffs must, therefore,
demonstrate that a single incident was extraordinarily severe, or that a series of incidents was
sufficiently continuous and concerted to have altered the conditions of their working environment.
Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000). “While a mild, isolated incident
does not make a work environment hostile, the test is whether the harassment is of such quality or
quantity that a reasonable employee would find the conditions of her employment altered for the
worse.” Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000) (internal
citations omitted). “[I]n the case of a hostile work environment claim, the statute of limitations
requires that only one . . . harassing act demonstrating the challenged work environment occur
within [the period of limitations]; once that is shown, a court and jury may consider ‘the entire
time period of the hostile environment’ in determining liability. Petrosino v. Bell Atlantic, 385
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F.3d 210, 220 (2d Cir. 2004) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117
(2002)).
There is no single incident which is extraordinarily severe; instead, Plaintiffs allege that
various acts by individuals employed at TWC created a hostile work environment. (Mem. in Opp.
7-8). For example, Castillo alleges that he and other Hispanic workers were called “Dumb Spics,”
“Dumb Dominicans,” and “Rice and Bean Eaters”; this allegation is corroborated by an affidavit
from coworker Edwin Maisonet, who heard these comments. Castillo also alleges that, while
Italian workers were permitted to speak Italian, when he and other Hispanic workers
communicated in Spanish, they were asked “What Banana Boat did you get off[?],” and were
instructed not to speak in Spanish and to press the SAP button (a button on the cable device that
translates Spanish to English).
Boonnak alleges that his supervisor Peter Samperi called him “Chinky Eyes,” mocked his
accent, and told him to return to his “Rice Paddy and Water Buffalo birthplace.” (Boonnak Decl. ¶
22; Mem. in Supp. 4.) Coworker David Hardy submitted a corroborating affidavit, stating that he
also observed Samperi mimic Boonnak’s accent and make derogatory remarks about Thai women.
(Mem. Opp. 7-8.) Boonnak also contends that, when he complained about the allegedly hostile
work environment, two Human Resources employees told him he should transfer to the offices in
Flushing, Queens or Lower Manhattan, which service predominantly Asian districts, to “be with
[his] people.” (Boonnak Decl. ¶ 8). Finally, he alleges that Foreman Paul Hart posted a list on the
bulletin board, on which the words “Jackie Chan” were written next to Boonnak’s name; despite
Boonnak’s protests, this notice remained posted for weeks.
Defendants argue that Plaintiffs have failed to allege that the purported harassment affected
their ability to continue to perform their jobs, observing that both Plaintiffs “proudly testified
[during their depositions] that they excelled in all areas of their jobs.” (See Mem. in Supp. 4 n.2.)
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Defendants argue that the racist comments allegedly made by employees were no more than petty
slights and trivial inconveniences. Additionally, Defendants that argue Samperi’s conduct is not
actionable because it occurred prior to September 6, 2006—outside the statute of limitations.
(Mem. in Supp. 9.) TWC argues that each of these incidents is separate and, because they are
separate, they are isolated, sporadic, and not part of a pattern. TWC may well be correct, but its
argument does not mean that there are no genuine issues of material fact.
There is ample evidence that Plaintiffs faced pervasive harassment by workplace
supervisors, based on their races and national origins. At the summary judgment stage, since all
inferences are drawn in favor of the nonmovant, the proper approach is to view the evidence in its
totality and examine the cumulative effect of the acts alleged. See Harris v. Forklift Sys., 510 U.S.
17, 23 (1993).
While some of the evidence of a hostile work environment falls outside the statute of
limitations, Plaintiffs have proffered enough acts to satisfy the continuing violation doctrine. For
example, Boonnak alleges that he was told to transfer to an office in an Asian district in 2007; and
that the Jackie Chan comment was posted in 2009. Additionally, the affidavits of Mr. Hardy and
Darren Maraj specifically describe sufficient conduct after 2006 to satisfy Plaintiffs’ burden. (See
Hardy Decl. ¶¶ 4, 5; Maraj Decl. ¶ 11 (attaching a letter, posted on the bulletin board in 2008,
which displays animosity towards Hispanics and immigrants); Castillo Decl. ¶ 10 (referring to
anti-Hispanic statements as “continuous”).) These incidents are sufficiently related to the other
alleged acts of harassment to be part of the same hostile work environment claim. See McGullam
v. Cedar Graphics, Inc., 609 F.3d 70, 78 (2d Cir. 2010). Accordingly, Plaintiffs are entitled to
present this claim to a jury.
II.
Disparate Treatment
Discrimination claims, whether brought under Title VII, NYHRL, or NYCAC, are analyzed
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under the burden-shifting analysis of McDonnell-Douglas Corp. v. Green. 411 U.S. 792, 802-05
(1973). See Thomas v. N.Y.C. Health & Hosps. Corp., No. 02 Civ. 5159, 2004 WL 1962074, at
*11 (S.D.N.Y. Sept. 2, 2004). 1 A prima facie case of discrimination may be established where the
plaintiff (1) belongs to a protected class; (2) performs duties satisfactorily; (3) is subject to an
adverse employment action; and (4) the circumstances of the adverse action give rise to an
inference of discrimination based on his membership in the protected class. See Graham v. Long
Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).
The burden at the prima facie stage is de minimis. Id. at 134. To constitute adverse
employment action for discrimination purposes, there must be some “materially adverse change in
the terms and conditions of employment,” as opposed to mere disruption or inconvenience.
Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal quotations omitted).
“[T]he challenged action must affect the plaintiff's employment is a way that is both detrimental
and substantial.” Zhao v. Time, Inc., No. 08 Civ. 8872, 2010 WL 3377498, at *11 (S.D.N.Y. Aug.
24, 2010) (internal quotations omitted).
After the plaintiff has established a prima facie case of discrimination, the burden shifts to
the defendant to proffer a legitimate, nondiscriminatory reason for the plaintiff’s termination. See
McDonnell, 411 U.S. at 802. Finally, if the defendant has met this burden of production, the
plaintiff must produce some evidence that this proffered reason is in fact pretextual. Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). “Pretext may be demonstrated either by the
presentation of additional evidence showing that the employer's proffered explanation is unworthy
of credence, or by reliance on the evidence comprising the prima facie case, without more.”
Chambers, 43 F.3d at 38 (internal quotations and citations omitted). At all times, however, the
1
Courts apply the same standard of analysis under Title VII and NYHRL. See Weinstock v. Columbia Univ., 224
F.3d 33, 42 n.1 (2d Cir. 2000). A more liberal standard applies to NYCAC §8-130. See Loeffler v. Staten Island
Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009).
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ultimate burden of persuasion remains with the plaintiff.
The adverse employment actions of which Plaintiffs complain include (1) more
burdensome work assignments; (2) increased discipline; and, in Castillo’s case, (3) denial of
timely access to NCTI books; (4) lateral transfers that were effectively demotions, and (5) failure
to promote to a Journeyperson Construction position, a Warehouse Foreman position, and a
Technical Operations Foreman position. (Am. Compl. ¶¶ 19-21; Mem. in Opp. 9-11, 14.)
TWC contends that Plaintiffs have not established a prima facie case of discrimination
because they did not suffer a materially adverse change in the terms and conditions of their
employment. Unfavorable work schedules and insubstantial changes in work conditions alone,
TWC argues, do not constitute an adverse employment action. TWC also argues that the
circumstances surrounding Plaintiffs’ work assignments do not create an inference of
discrimination because (1) all work is randomly assigned to technicians from a central dispatch
office, so these assignments cannot be attributed to any individuals in the Northern Manhattan
office; and (2) at least two of the white employees who Plaintiffs allege receive more favorable
assignments identify as Hispanic. (Mem. in Supp. 12-13). TWC also proffers a legitimate
nondiscriminatory reason for its actions, claiming that it must provide services to its cable
customers, regardless of their location; if Plaintiffs work in undesirable neighborhoods, it is
simply because a customer has requested service and not for any other reason. (Id. at 13.)
In addition, TWC claims that the various acts of discipline and disadvantage (i.e., denial of
NCTI books) asserted by Plaintiffs are unrelated to race or national origin, and resulted from
Plaintiffs’ own conduct. Finally, regarding the claims specific to Castillo, TWC maintains that the
promotions went to more qualified employees, one of whom is also Hispanic; and that the
transfers occurred for legitimate business reasons and do not qualify as demotions. These
arguments may be correct, but all of them raise genuine issues of material fact.
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Plaintiffs have established a prima facie case of discrimination based on race and national
origin. Kaur, 688 F. Supp. 2d. at 331 (quoting Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003).
Regarding the second element—adverse employment action—a reasonable jury could find that the
routine assignment of nonwhite employees to particular neighborhoods materially altered the
conditions of their employment by making the job significantly more laborious and dangerous.
For example, coworker David Trojanek stated in his affidavit that burdensome and dangerous job
assignments in Harlem, Inwood, and Washington Heights are “known, in our Shop, as punitive
assignments meted out by our Foremen” because they often require carrying heavy equipment and
extension ladders through tight alleys, past rats and garbage. (Trojanek Decl. ¶ 7.) The punitive
nature of these assignment is evidence that they materially impacted employment conditions. See
Sanders v. N.Y.C. Human Resources Admin., 361 F.3d 749 (2d Cir. 2004) (finding that transfer to
a “crowded, run-down, and vermin-infested building” could be materially adverse). In addition,
discipline, denial of requested overtime, failure to promote, and lateral transfers to more
burdensome positions are well-established adverse employment actions. See Patrolmen's
Benevolent Ass'n. of City of New York v. City of New York, 310 F.3d 43 (2d Cir. 2002); De la
Cruz v. N.Y.C. Human Resources Admin. Dep't of Social Servs., 82 F.3d 16, 21 (2d Cir. 1996)
(transfer to “less prestigious” unit of social services department with reduced opportunities for
professional growth was adverse employment action); Rodriguez v. Board of Educ., 620 F.2d 362,
366 (2d Cir. 1980) (transfer of experienced middle school art teacher to elementary school
constituted adverse action).
As to the fourth element, discriminatory intent may be inferred by the comments that
support the hostile work environment claim. Plaintiffs also offer evidence that they were
disciplined more harshly than white coworkers. For example, Castillo alleges that he was
disciplined for taking an extended lunch, while white Technician Quirino Madia was never
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disciplined for frequently attending Yankee games during business hours. (Mem. in Opp. 10-11.)
Likewise, Boonnak states that he was singled out for discipline following an altercation, for which
the two non-Asian participants were not punished. The discriminatory nature of these incidents,
and others, are supported by the affidavits of seven other coworkers. (See, e.g., Maraj Decl. ¶¶
12-13; Trojanek Decl. ¶¶ 9-10; Hardy Decl. ¶¶ 7-9; Puesan Decl. ¶ 10; see also Chambo Decl. ¶ 5;
Joseph ¶ 7; Maisonet ¶¶ 6-7.)
In addition, as to Castillo’s claim for failure to promote, the allegation that the position
went to a less qualified nonminority technician is sufficient to establish an inference of
discrimination. See Zimmerman v. Assoc. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001).
The Warehouse Foreman position went to Quirino Madia, a white technician alleged to have less
seniority and qualification than Castillo. (Mem. in Opp. 14.) Castillo also argues that the
legitimate nondiscriminatory reason proffered by TWC—that Castillo lacked required experience
in shipping and receiving—was pretextual, based on the fact that Madia similarly lacked such
experience. Similarly, Castillo argues that TWC’s reason for promoting Shirley Torres—her
strong computer skills—is a post hoc rationalization of a discriminatorily-motivated act. 2
Plaintiffs also offer evidence that TWC’s legitimate reason for disproportionately
assigning difficult jobs to nonwhite employees—that they are randomly assigned by a computer
based on customer need—is merely pretext. Plaintiffs respond that this computer system did not
exist until they filed this lawsuit, and that, even when it is used, the dispatchers and foreman still
2
While the Technical Operations Foreman position was given to Shirley Torres (who is Hispanic), there might be a
plausible claim of discrimination based on national origin (because Ms. Torres is not Dominican). See Deravin v.
Kerik, 335 F.3d 195, 202 (2d Cir. 2003) (“[T]he line between discrimination on account of race and discrimination on
account of national origin may be so thin as to be indiscernible.”). There is not sufficient evidence here to create a
genuine dispute as to discrimination based on national origin. While there are stray comments relating to nationality,
as opposed to race (specifically, the comment “Dumb Dominicans” and the reference to Thai women), these
comments relate to Plaintiffs’ respective races. There is no evidence of any animosity towards Dominican workers
specifically, in contrast to Hispanic workers of other nationalities, or towards Thai workers specifically, as opposed to
Asian workers of other nationalities. Accordingly, the Court dismisses the claim of disparate treatment based on the
promotion of Ms. Torres over Castillo. This promotion may, however, still support the retaliation claim.
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change the assignments on a daily basis. (Boonnak Decl. ¶ 9). They also submit an affidavit from
Louis Puesan, who worked in the Dispatch Department, which details the discretionary nature of
assignment dispatching. (Puesan Decl. ¶¶ 5-9.) This evidence is sufficient to create a genuine
issue of fact as to pretext.
III. Retaliation
Retaliation claims are analyzed under a similar burden-shifting framework as
discrimination claims. A prima facie claim of retaliation under Title VII has the following
elements: (1) participation in a protected activity; (2) the defendant’s knowledge of the protected
activity; (3) an adverse employment action; and (4) a causal connection between the protected
activity and the adverse employment action. Jute v. Hamilton Sundstrand Corp., 420 F.3d 166,
173 (2d Cir. 2005). Informal protests about discriminatory practices, including complaints to
management, qualify as protected activity. See Matima v. Celli, 228 F.3d 68, 79 (2d Cir. 2000).
To rise to the level of an adverse employment action for retaliation purposes, the plaintiff must
prove that “a reasonable employee would have found the challenged action materially adverse”—a
lower bar than for discrimination claims. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
68 (2006).
After the plaintiff has established a prima facie case of retaliation, the burden shifts to the
defendant to proffer a legitimate, nonretaliatory reason for the adverse action. Kaytor v. Elec. Boat
Corp., 609 F.3d 537, 552-53 (2d Cir. 2010). If the defendant does so, the plaintiff must produce
some evidence that this proffered reason is in fact a pretext for retaliation. Id. at 553.
TWC argues that Plaintiffs have failed to establish any causal connection between the
protected activity and adverse action, including temporal proximity; and offers legitimate
nonretaliatory reasons for certain adverse actions. For example, it argues that Boonnak was
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denied overtime work as discipline for his misconduct in the workplace and that Castillo was
denied overtime work for taking a longer lunch than permitted. (Mem. in Supp. 15, 18.)
Plaintiffs rely on their evidence of discrimination to establish causation. They note that
they were harassed; unfairly disciplined; assigned to poor working conditions; denied overtime
work; and, for Castillo, denied promotions and transferred to positions that were effectively
demotions, shortly after complaining to their supervisors about TWC’s discriminatory practices.
(Mem. in Opp. 13.) They also claim that these adverse acts increased after they filed a second
complaint with Corporate Human Resources. (Id.)
This is sufficient to create a genuine dispute as to retaliation. Plaintiffs were engaged in
protected activity of which TWC was aware; and Plaintiffs contend they suffered adverse
employment decisions by being transferred, disciplined, and denied overtime and promotions.
With respect to causality, they allege that much of the discipline and harassment occurred shortly
after their first complaint and increased as they continued to pursue their complaint. For example,
after Castillo stated at his predisciplinary meeting (concerning his September 2006 extended
lunch) that he believed the discipline was racially motivated, General Foreman Lance Giancotti
called him a “big mouth” and a “trouble maker,” and told him that he would never work overtime
on his days off. Castillo alleges that shortly after this meeting, Mr. White told him that he should
not have complained of discrimination because Giancotti was having Castillo transferred as a
result. Castillo was in fact transferred to Installation in April 2007.
Notwithstanding TWC’s arguments and contentions, which may well be true, they do not
eliminate the genuine issues of material fact that should be resolved by a jury.
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