Goonewardena v. State of New York Workers Compensation Board et al

Filing 261

OPINION AND ORDER: In sum, the Court concludes that Plaintiff is not entitled to relief on any of his claims. Accordingly, the Court enters judgment in favor of the WCB on Plaintiff's discrimination and retaliation claims under Title VII and judgment in favor of Winston Farnum on Plaintiff's discrimination and retaliation claims under Section 1983, the NYSHRL, and the NYCHRL. The Court notes that the parties' submissions in connection with Plaintiff's motion for sanctio ns have not been publicly filed. No later than June 30, 2017, the parties shall file these submissions on ECF. The Clerk of Court is directed to enter judgment in favor of Defendants and to close this case. (As further set forth in this Order.) (Signed by Judge Ronnie Abrams on 6/28/2017) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: 06/28/2017

BERNARD W. GOONEWARDENA,
Plaintiff,
No. 09-CV-8244 (RA)

V.

STA TE OF NEW YORK WORKERS
COMPENSATION BOARD and WINSTON
FARNUM,

OPINION & ORDER

Defendants.

RONNIE ABRAMS, United States District Judge:
Plaintiff Bernard Goonewardena brings this discrimination and retaliation action against
his former employer, the New York Workers' Compensation Board (the "WCB") and his former
supervisor, Winston Farnum. Plaintiff asserts claims under 42 U.S.C. § 1983, Title VII of the
Civil Rights Act of 1964, the New York State Human Rights Law ("NYSHRL"), and the New
York City Human Rights Law ("NYCHRL"). Following a three-day bench trial, judgment shall
be entered for Defendants. 1

FINDINGS OF FACT
A.

The Parties
Plaintiff is a 78-year-old native of Sri Lanka who identifies as South Asian. See Pl. Aff.

iii! 1-2.

He was educated in Sri Lanka and moved to the United States in 1968. See id.

iii! 4, 9.

The WCB is a New York state agency responsible for enforcing New York's workers'

1

The Court thanks Mark Baghdassarian, Marcus Colucci, John Dillon, Cristina Martinez, and
Jane Gross of Kramer Levin Naftalis & Frankel, LLP for their pro bono representation of Plaintiff at trial.
Their performance was exceptional, and the Court is extremely grateful for their service.

compensation laws. See Aff. of Winston Farnum ("Farnum Aff."), 3. Farnum served as a
Compensation Investigator II at the WCB's Bureau of Compliance from 2001 to 2010. See ;d.
, 1. Farnum was Plaintiffs direct supervisor during Plaintiffs employment with the WCB. See
;d. , 9. Farnum testified that he "is of Barbados ancestry" and that his "skin is brown, otherwise

colloquially known as 'black."' Id. , 40.
B.

Plaintiff's Hiring and Training
In or about August or September 2007, Plaintiff applied for a position as a Compensation

Investigator I at the WCB's Harlem District Office. See PI. Aff., 25. There is no dispute that
Plaintiff was qualified for this position, as he had received a score of 85 percent on his civil
service exam and had experience as a compensation investigator. See ;d , 26; Defs.' Ex. B at 2.
Plaintiff was interviewed by Farnum, Leonard Frasco, and other WCB employees. See PI. Aff.
, 30. Plaintiff was hired, and he began work on October 4, 2007. See ;d , 36; Pl. Ex. 2. 2
During Plaintiffs employment with the WCB, a Compensation Investigator I was a field
investigator responsible for evaluating businesses' compliance with New York's workers'
compensation laws. See Pl. Aff., 27; Farnum Aff., 1O; Aff. of Leonard Frasco ("Frasco Aff.")
, 8. A Compensation Investigator I was expected to visit businesses to determine the status of
their workers' compensation insurance. See PI. Aff. , 27; Farnum Aff. , 1O; Frasco Aff. , 8. A
Compensation Investigator I was also expected to write clear, concise, and accurate reports. See
Farnum Aff. , 1O; Frasco Aff. , 8. In general, a Compensation Investigator I spent two to three
days each week in the field and the remaining weekdays in the office. See Frasco Aff., 8; Trial
Tr. ("Tr.") at 30:22-25.

2

Plaintiff's exhibits numbers refer to the numbers used on the tabs of Plaintiff's pre-trial binder;
they do not refer to the handwritten numbers some of these exhibits contain.

2

Upon starting at the WCB, Plaintiff was given one week of training, as were other newly
hired employees. See Farnum Aff. ,-i 11; Frasco Aff. ,-i,-i 5, 7; Tr. at 27:7-25. This training
consisted of, as Plaintiff testified, an "initial overview" of the responsibilities of a Compensation
Investigator I. Pl. Aff. ,-i 4 7.
According to Plaintiff, he received less training than other newly hired Compensation
Investigator Is. See ;d. ,-i 48; Tr. at 63:2-24. Farnum and Frasco denied this claim. See Farnum
Aff. ,-i 11; Frasco Aff. ,-i,-i 5, 7. For several reasons, the Court does not credit Plaintiff's testimony
regarding the differences between his training and that of other employees. First, Plaintiff's trial
testimony on the issue was vague: when asked to describe the additional training other
employees received, he responded that he saw Farnum and two other newly hired employees
"standing there [for] 45 minutes going through the computer screens" but that he "did not know
what they were talking about." Tr. at 62:24-63:7. Second, Plaintiff's trial testimony conflicted
to some degree with his affidavit: whereas Plaintiff's affidavit states that Farnum provided
additional field training to Josseth Henry and Jamie Freeberg, see Pl. Aff. ,-i 48, Plaintiff testified
at trial that Edward Peters-not Farnum-provided additional field training to Henry and Awilda
Quiles, without mentioning Freeberg, see Tr. at 63: 19-22. Finally, no evidence suggests that the
WCB had any practice of tailoring its training for individual employees. Accordingly, the Court
finds that Plaintiff did not receive less training than other newly hired Compensation Investigator
Is.
C.

Plaintiff's Initial Performance
During Plaintiff's first several months at the WCB, his performance was viewed as

deficient in several respects. First, Farnum credibly testified that Plaintiff's investigative reports
often contained significant errors. See Farnum Aff. ,-i 17; Tr. at 176:21-177:6. Indeed, Farnum

3

testified that approximately 20 to 25 percent of Plaintiff's reports contained errors, an error rate
that was "very high" when compared to that of his colleagues. Tr. at 179: 11-20. While the
Court did not have the benefit ofreviewing a large number of Plaintiff's reports, two were
examined closely at trial, and Farnum provided a reasonable-if debatable-explanation of why
one report contained enough errors to be rejected by a supervisor. See Tr. at 172 :2-23, 173: 1922; Pl. Ex. 13. Frasco corroborated Farnum' s testimony by testifying that he reviewed examples
of Plaintiff's completed reports and determined that Plaintiff repeatedly made the same mistakes.
See Frasco Aff.

~

9.

Second, Farnum credibly testified that, in his view, Plaintiff had trouble following
instructions. See Farnum Aff.

~

19. Farnum concluded that Plaintiff either did not understand

his instructions or thought his way was better. See id. As a result, Farnum often had to repeat
himself, and Plaintiff's work was not completed on time. See id.
Third, Plaintiff's coworkers reported to his supervisors that Plaintiff was confrontational
and uncooperative. See Frasco Aff.

~~

10-11. For example, Frasco credibly testified that

Plaintiff's coworkers informed him that "Plaintiff would ask them questions related to the work
and then invariably reject their answers because Plaintiff thought that he knew better." Id.

~

10.

Frasco further testified that Plaintiff's coworkers complained that, while in the field, Plaintiff
would "openly disagree" with them in public, which created a "confrontational and
uncomfortable work environment," as well as an "unprofessional public display." Id.

~

11. The

Court again finds this testimony credible.
Fourth, Farnum found that Plaintiff's computer skills were inadequate. See Farnum Aff.
~

18. Farnum estimated that approximately 60 percent of an investigator's job involves the use

4

of a computer, and that, in his view, Plaintiff lacked the skills to use the WCB' s computer system
and business databases efficiently. See id
The Court does not doubt that Plaintiff performed well at times. Plaintiffs affidavit
states that, on at least some occasions, he capably informed various entities about the
requirements of New York's workers' compensation laws. See Pl. Aff. ,, 42--43. Defendants
did not rebut this testimony at trial or demonstrate that Plaintiff was entirely incapable of doing
his job. Rather, the evidence suggests that Plaintiff may have performed competently on at least
some of his assignments, but that his overall performance during his first several months was
sub par.
Concerns with Plaintiffs initial performance are reflected in the First Probationary
Report, which Farnum completed on February 27, 2008. See Farnum Aff. , 24; Pl. Ex. 7. In this
report, Farnum gave Plaintiff a rating of "unsatisfactory" in three of the seven applicable
performance categories. See Pl. Ex. 7. In particular, Farnum found Plaintiffs performance
unsatisfactory in the categories of "Aptitude," "Relationship with Co-workers/Supervisor," and
"Relationship with Public." See id Farnum gave Plaintiff a satisfactory rating in the categories
of"Quality of Work," "Work Habits," and "Attendance," and did not provide a rating for the
category of"Quantity of Work." See id In the narrative section of the report, Farnum wrote that
Plaintiff ( 1) has "[b ]el ow standard computer skills," which he was "very slow to pick up," (2)
"[h]as difficulty with interpersonal communications with fellow employees and has difficulty
accepting directions from the supervisor," and (3) "[n]eeds improvement in communications
with the public and employers." Id. On the whole, the Court finds that the First Probationary
Report confirms that, in Defendants' view, Plaintiff performed inadequately during his first
several months of employment.

5

To be sure, the First Probationary Report is not a model of clarity, and Farnum could
have been more diligent in completing it. For example, the dates in the report are somewhat
confusing: the report lists a "due date" of November 15, 2007, but it was completed in February
2008. See id. In addition, a box recommending "termination" was not checked, see id., although
Farnum testified that "[b ]ased on the problems noted in the [First] Probationary Report it was
being recommended that plaintiff be terminated," Farnum Aff.

~

25. At trial, these discrepancies

were largely explained. For instance, Farnum testified that supervisors did not complete a
probationary report until Human Resources delivered a blank copy of the form, see Tr. at
188: 17-19, and that Plaintiff's form may not have been delivered until February 25, 2008, only
two days before Farnum completed it, see Tr. at 221 :23-25. Farnum further testified that, in
practice, he typically recommended terminating a provisionary employee by discussing the
matter with his own supervisor, and not necessarily by checking the "termination" box in a
probationary report. See Tr. at 189:13-190:11. Furthermore, the report rates Plaintiff's "quality
of work" as "satisfactory," which could seem inconsistent with Farnum's testimony that
Plaintiff's work routinely contained errors. Compare Pl. Ex. 7, with Farnum Aff.

~

17. This

potential discrepancy was also resolved at trial: Farnum consistently, and credibly, testified that
Plaintiff's work in fact contained errors and that he should have checked "unsatisfactory" in this
field. See Tr. at 135:20-24, 136:2. Overall, any discrepancies or omissions in the First
Probationary Report do not undermine the Court's finding that this report accurately reflected
Defendants' contemporaneous belief that Plaintiff's performance was deficient.
In December 2007, Farnum met with Frasco and reported his concerns with Plaintiff's
performance. See Farnum Aff.

~

20; Frasco Aff.

~

12. The two men decided to recommend

terminating Plaintiff's employment if his performance did not improve by the end of his first

6

three months at the WCB-that is, by the end of the first week of January 2008. See Farnum
Aff.

~

20; Frasco Aff.

~

12. Frasco relayed this recommendation, as well as Farnum's concerns

with Plaintiff's performance, to other WCB officials. See Tr. at 133:3-14.
D.

Plaintiff's Leave of Absence and Initial Termination
On January 17, 2008, Plaintiff began a medical leave of absence after sustaining a knee

injury. See PI. Aff.

~~

51, 57.

In a letter dated March 6, 2008, while Plaintiff was on leave, the WCB informed Plaintiff
that his services would be terminated on March 20, 2008. See Pl. Ex. 5; Pl. Aff.
Lisa Sunkes ("Sunkes Aff.")

~

62; Aff. of

24. Plaintiff responded by sending a series ofletters challenging

the WCB's decision and arguing that he should be reinstated. See Pl. Aff.
~

~

~

66; Sunkes Aff.

25. Some of these letters were lengthy-one contained 29 pages-and included discussions of

Plaintiff's prior work experience and personal life. See Sunkes Aff.

~

25. In these letters and in

other communications with WCB officials, Plaintiff threatened to take "the story of[his]
~

termination" to New York newspapers. Pl. Aff.

68; see also Pl. Ex. 9 at 1. On March 20,

2008, the WCB informed Plaintiff that it had reversed its prior decision and that he would be
reinstated. See Sunkes Aff.

~

30; Defs. Ex. L. According to Lisa Sunkes, who served as Director

of Human Resources Management at the time, the WCB decided that Plaintiff should be given
another opportunity to succeed. See Sunkes Aff.

~

28.

After Plaintiff was reinstated but before he returned to work, he continued to write letters
to WCB officials. See Pl. Aff.

~~

71-72. In some of these letters, Plaintiff indicated that he had

a "normal or cordial relationship [his] supervisor," Pl. Ex. 9 at 2, and a "normal work
environment" before his leave of absence, Pl. Ex. 10 at 3. In at least some of these letters,
however, Plaintiff also alleged-for the first time-that he was subjected to discrimination and

7

that he feared he would be subjected to retaliation. See, e.g., Pl. Ex. 10 at 2-3. For example, in a
letter dated April 13, 2008, Plaintiff wrote that the reason given for his initial termination was
"totally false given [his] outstanding performance in all jobs [he] held in New York state
service" and that his termination "was done for discriminatory reasons." Pl. Ex. 11 at 4.
Plaintiff added that he had been "accorded differential treatment than other American born
employees." Id. Plaintiff indicated that, if he were terminated on the basis of "another negative
performance evaluation," he would "fil[ e] a case of discrimination based on national origin, age,
harassment, and retaliation." Id. Defendants did not find Plaintiffs complaints credible and did
not investigate further. See Sunkes Aff.

E.

~

35; Tr. at 254:6-8, 295:13-296:2.

Plaintiff's Return and Final Termination
On April 17, 2008, Plaintiff returned to work. See Pl. Aff.

~

74; Farnum Aff.

~

30.

Plaintiffs affidavit asserts that, on his first day back at work, Farnum "angrily stated that [his]
'days are going to be numbered."' Pl. Aff.

~

74. Plaintiff also claims that, at some point after he

was reinstated, Farnum showed Plaintiff the letters he had sent to Sunkes and stated, "They are
not going to believe anything that you have to say against me." Id.

~

82. The Court does not

credit this testimony. Other than Plaintiffs own testimony, no evidence adduced at trial suggests
that Farnum acted with the "nasty and aggressive and hostile" attitude Plaintiff described. Tr. at
72: 16. Indeed, although Farnum found Plaintiffs work product unsatisfactory, he expressed
genuine respect for Plaintiff as a person-even referring to him as "brilliant." Tr. at 198: 10-11.
Plaintiffs testimony is particularly incredible in light of Farnum's demeanor at trial: Farnum
appeared candid and matter-of-fact, even when discussing his concerns with Plaintiffs
performance and Plaintiffs allegations of discrimination, and exhibited no apparent hostility

8

towards Plaintiff. Indeed, no evidence suggests that Farnum expressed any frustration with
Plaintiff through aggressive behavior or threats, as Plaintiff claims that he did.
Farnum testified that Plaintiffs performance did not improve after his reinstatement. See
Farnum Aff.

ii 32.

He recalled that Plaintiffs reports continued to contain errors and that

Plaintiff continued to have trouble using the WCB's computer system and databases. See id.
Farnum also described continued complaints from Plaintiffs coworkers, who explained that
Plaintiff was "disruptive" on field assignments, refused to follow directions, and spoke over his
colleagues. See id.

ii 33.

Farnum ultimately concluded that Plaintiff was "incapable of

performing his job responsibilities independently." Id.

ii 32. 3

In June 2008, several WCB officials held a conference call to discuss Plaintiffs
performance. See Farnum Aff.

ii 34; Sunkes Aff. ii 36.

The group decided that, since Plaintiffs

performance had not improved, his employment would be terminated. See Farnum Aff.
Sunkes Aff.

ii 34;

ii 36.

On June 30, 2008, Farnum completed a Second Probationary Report. See Farnum Aff.

ii 35; Pl.

Ex. 12. The report stated that Plaintiffs performance was unsatisfactory in four of the

seven applicable performance categories. See Farnum Aff.

ii 35; Pl. Ex.

12. In the narrative

section of the report, Farnum elaborated on the problems with Plaintiffs performance. With
respect to "Quality of Work," Farnum wrote that Plaintiffs reports "have many errors." Pl. Ex.
12. Specifically, Farnum noted that nine of twelve reports recently submitted by Plaintiff were
returned to him for corrections. See id. With respect to "Quantity of Work," the report noted
that Plaintiff "works slowly" and that "his work production falls behind that of his co-workers."

3

During this period, Farnum had informal conversations with Plaintiff, in which Farnum told
Plaintiff that his performance needed improvement. See Tr. at 183:24-25, 232:18-19. Farnum did not,
however, provide a formal counseling memorandum to Plaintiff regarding the issues with his
performance.

9

Id. With respect to "Aptitude," the report explained that Plaintiff "was slow to learn the various

databases which are used by the investigators" and "demonstrated a lack of understanding of
some of the basic legal concepts used in our investigations." Id. Finally, with respect to
"Relationships with Co-workers/Supervisor," Farnum wrote that Plaintiff"has cultivated
adversarial relationships with his co-workers and his supervisor." Id. The report further
explained that Plaintiffs coworkers "don't trust him" and "feel that his conduct while in the field
with them can result in an unsafe work environment." Id. The Court finds that the Second
Probationary Report accurately reflects Defendants' view of Plaintiffs performance following
his reinstatement.
Once again, however, Farnum's completion of this report was flawed in some respects.
For example, unlike in the First Probationary Report, the category "Relationship with Public"
was marked as "satisfactory" in the Second Probationary Report, although the narrative section
of this report states that Plaintiff "has disagreements with [his coworkers] in the presence of the
public." See id. At trial, Farnum testified that Plaintiff's relationship with the public was in fact
unsatisfactory, a view that he expressed through the narrative section of the report. See Tr. at
192:3-8. The Court finds that, although Mr. Farnum could have been more conscientious in
completing the Second Probationary Report, the report nonetheless reflected his
contemporaneous belief that Plaintiff's performance was deficient following his reinstatement.
The Second Probationary Report recommended terminating Plaintiff's employment. See
Pl. Ex. 12. On July I, 2008, Sunkes approved Plaintiff's termination. See Sunkes Aff., 38.
Plaintiff's termination became effective on July 9, 2008. See Pl. Aff., 96; Pl. Ex. 15.

IO

F.

Alleged Incidents of Discrimination
Plaintiff claims that, after he was reinstated but before his final termination, Farnum

made several negative comments about his race, national origin, and age. See Pl. Aff.

~~

75-79.

In particular, Plaintiff testified that Farnum told him that he came "from the third world," that he
was "senile," and that he "was black ... not white." Id.
remarks. See Farnum Aff.

~

~~

75-76. Farnum denies making these

39.

The Court does not credit Plaintiff's claim that Farnum made discriminatory statements
about his race, national origin, or age. This credibility finding is based in part on Plaintiff's
demeanor while testifying. It is also based on the timing of events and the fact that Plaintiff
himself testified that Farnum did not make any discriminatory statements prior to his initial
termination. See Tr. at 51: 13-21. Indeed, Plaintiff's contemporaneous letters indicated that his
relationship with Farnum during the first several months of his employment was "normal or
cordial." Pl. Ex. 9 at 2; see also PI. Ex. IO at 2-3 ("I want a normal work environment and
relationship as that existed before my absence from work."). Plaintiff did not explain why, after
several months of a normal or cordial relationship, Farnum would begin to make discriminatory
remarks. Finally, the Court's credibility finding is based on some of the alleged remarks
themselves. For example, Plaintiff claims that Farnum stated, "You are no diplomat .... My
daughter is a diplomat in England." Pl. Aff.

~

76. In light of the undisputed trial testimony that

Farnum's daughter is not in fact a diplomat, but rather an actuary, it seems highly unlikely that
Farnum would make such a statement. See Tr. at 197: 19-198: 1.
By contrast, the Court found Farnum's testimony credible on the issue of any allegedly
discriminatory remarks. This credibility finding is also based, in part, on demeanor: Farnum
appeared candid, matter-of-fact, and balanced throughout his testimony on this subject. Farnum

11

also appeared fair and respectful in his assessment of Plaintiff-Farnum even described Plaintiff
as a "brilliant human being." Tr. at 198: 10-11. In addition, Farnum credibly testified that he
would not make such remarks because, as a member of several protected groups himself-he is a
black man of Barbados ancestry-he is "sensitive to the equal treatment and supervision of all
employees." Farnum Aff.

~

40. In Farnum's words, he "live[s] in a glass house" and does not

"want to throw a stone." Tr. at 198:14-15. Finally, both Farnum and Frasco testified that
Farnum worked well with several other South Asian employees, at least some of whom were
over 65 and at least some of whom were not born in the United States. See Farnum Aff.

~

41;

Frasco Aff. ~ 20; Tr. at 194:23-196:21, 299:25-301 :7. 4 Farnum further testified that, at some
point, three of his seven subordinates were South Asian. See Tr. at 197: 1-3. For these reasons,
the Court does not credit Plaintiff's allegation that Farnum made discriminatory remarks to
Plaintiff regarding his race, national origin, or age.
Plaintiff also provided evidence that, in March 2008, the WCB hired two younger,
African American individuals, Al John and Onyewuchi Echefu. See Pl. Aff.

~

84; Tr. at 142:1-7.

These individuals filled one position that was vacant when Plaintiff began at the WCB and one
that was left vacant when Plaintiff was on medical leave. See Pl. Aff.

~

84. They were both

given offers before Plaintiff was terminated. See Tr. at 98: 10-12. The Court does not, however,
find that these two individuals were less qualified than Plaintiff for the role of Compensation

4

At trial, the Court ruled that evidence of other employees' races, nations of origin, and age were
admissible, as this evidence may be probative of Defendants' motivation in taking any adverse
employment actions against Plaintiff. Tr. at 157:23-158:23; see Furnco Constr. Corp. v. Waters, 438
U.S. 567, 580 (1978) (holding that a district court was "entitled to consider the racial mix of the work
force when trying to make the determination as to motivation" in the employment discrimination context
(emphasis in original)); Mobasher v. Bronx Cmty. Coll. of City of NY, 269 F. App'x 71, 74 (2d Cir.
2008) (summary order) (holding that "the District Court's decision to admit testimony regarding the race
of [other employees] was not an abuse of discretion," as this evidence "tends to show that, insofar as [the
defendant] was responsible for the adverse employment actions that Plaintiff has identified, those actions
were not motivated by discrimination").

12

Investigator I. At trial, Plaintiff did not present evidence suggesting any significant difference
between Plaintiff's qualifications and those of these two individuals. Moreover, one of the key
qualifications for the role of Compensation Investigator I was performance on the civil service
exam, and documentary evidence showed that Echefu had received the same score as Plaintiff on
the exam. See Pl. Ex. 1 at 3.

CONCLUSIONS OF LAW
A.

Discrimination Claims
1.

Title VII, Section 1983, and the New York State Human Rights Law

Plaintiff first brings discrimination claims against the WCB under Title VII and against
Farnum under Section 1983 and the NYSHRL, claiming that he was terminated on the basis of
his race, national origin, and age.
These discrimination claims are governed by the burden-shifting framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, Plaintiff must
first establish a primafacie case of discrimination. See McDonnell Douglas, 411 U.S. at 802;

United States v. City of New York, 717 F.3d 72, 83 (2d Cir. 2013). To establish aprimafacie
case, Plaintiff must show that: (I) he is a member of a protected class; (2) he is qualified for his
position; (3) he suffered an adverse employment action; and (4) the circumstances give rise to an
inference of discrimination. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 83 (2d
Cir. 2015). The Supreme Court has "characterized this initial burden as 'not onerous,' ... and as
'minimal."' Littlejohn v. City of New York, 795 F.3d 297, 308 (2d Cir. 2015) (quoting Texas

Dep 't ofCmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) and St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 506 (1993)); see also Tolbert v. Smith, 790 F.3d 427, 435 (2d Cir. 2015) ("The
requirement is neither onerous nor intended to be rigid, mechanized or ritualistic." (quoting

13

Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Cir. 2001))). "Once a plaintiff has
established a prima facie case, a presumption arises that more likely than not the adverse conduct
was based on the consideration of impermissible factors." Vega, 801 F.3d at 83. "The burden
then shifts to the employer to 'articulate some legitimate, nondiscriminatory reason' for the
disparate treatment." Id (quoting McDonnell Douglas, 411 U.S. at 802). "If the employer
articulates such a reason for its actions, the burden shifts back to the plaintiff to prove that the
employer's reason 'was in fact pretext' for discrimination." Id (quoting McDonnell Douglas,
411 U.S. at 804). Of course, the "ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff."
Patterson v. County of Oneida, 375 F.3d 206, 221 (2d Cir. 2004) (quoting Burdine, 450 U.S. at
253).
a. Prima Facie Case

Plaintiff has established a prima facie case of discrimination. First, Plaintiff was a
member of a protected class: he is South Asian, a native of a country other than the United
States, and over the age of 65. See Pl. Aff.

ifif 1-2. Second, Plaintiff was qualified for his

position as a Compensation Investigator I: he met the WCB's requirements through his score on
the civil service exam and his prior work as a compensation investigator. See id

if 26; Defs.' Ex.

B at 2. Third, Plaintiff suffered an adverse employment action because his employment was
terminated. See Pl. Aff.

if 96.

With respect to the fourth factor, Plaintiff has shown that the circumstances of his
termination give rise to an inference of discrimination. A court may infer discrimination from a
variety of circumstances, including:
the employer's continuing, after discharging the plaintiff, to seek applicants from persons
of the plaintiff's qualifications to fill that position; or the employer's criticism of the
14

plaintiffs performance in ethnically degrading terms; or its invidious comments about
others in the employee's protected group; or the more favorable treatment of employees
not in the protected group; or the sequence of events leading to the plaintiffs discharge.

Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009) (quoting Chambers v. TRM Copy
Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994)). Of particular importance in this case, "[t]he fact that
a plaintiff was replaced by someone outside the protected class will ordinarily suffice for the
required inference of discrimination at the initial prima facie stage of the Title VII analysis."

Littlejohn, 795 F.3d at 313. Here, Plaintiff has shown that he was replaced by two individuals
outside his protected class, both of whom are younger African Americans. See Pl. Aff. ,-r 84.
The timing of Plaintiffs replacement further supports an inference of discrimination: the WCB
offered these two individuals positions before Plaintiffs employment was terminated. See Tr. at
98: 10-12. This evidence is sufficient to satisfy the fourth requirement of Plaintiffs prima facie
case. See Littlejohn, 795 F.3d at 312-13; see also, e.g., de la Cruz v. NYC. Human Res. Admin.

Dep 't ofSoc. Servs., 82 F .3d 16, 20 (2d Cir. 1996) ("Because [a male Puerto Rican employee]
was replaced by a black female, he ... satisfies the fourth prong of the primafacie case.");

Dabney v. Christmas Tree Shops, 958 F. Supp. 2d 439, 453 (S.D.N.Y. 2013) ("Plaintiffs
replacement by a white employee was enough evidence to get her past the prima facie
stage .... "), ajf'd sub nom. Dabney v. Bed Bath & Beyond, 588 F. App'x 15 (2d Cir. 2014)
(summary order). 5

5

Of course, an employer's degrading remarks may also be "probative of discriminatory intent."
Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir. 2010). As discussed above, however, the Court
does not credit Plaintiffs claim that Farnum made any remarks regarding Plaintiffs race, national origin,
or age. Thus, the Court's finding that Plaintiff has established a primafacie case does not rest on
evidence of any discriminatory remarks made to Plaintiff.

15

b. Legitimate, Non-Discriminatory Reasons for Termination
Because Plaintiff has established a prima facie case, the burden shifts to Defendants to
articulate some legitimate, non-discriminatory reason for terminating Plaintiff's employment.
"'The defendant must clearly set forth, through the introduction of admissible evidence,' reasons
for its actions which, if believed by the trier offact, would support a finding that unlawful
discrimination was not the cause of the employment action." St. Mary's Honor Ctr., 509 U.S. at
507 (emphasis in original) (quoting Burdine, 450 U.S. at 254-55 & n.8). Defendants have
carried this burden.
Defendants have explained that they terminated Plaintiff on the basis of several perceived
deficiencies in his performance. First, Defendants determined that Plaintiff's written work often
contained significant errors. See Farnum Aff.

ii 17; Tr. at

176:21-177:6. Specifically, Farnum

estimated that approximately 20 to 25 percent of Plaintiff's investigative reports contained
errors-an error rate that was "very high" when compared to that of his colleagues. Tr. at
179: 11-20. Frasco likewise testified that he viewed several examples of Plaintiff's work and
found that Plaintiff repeatedly made the same mistakes. See Frasco Aff.

ii 9.

Defendants'

contemporaneous records document this concern. In the Second Probationary Report, for
example, Farnum noted that Plaintiff's quality of work was unsatisfactory, as his reports "have
many errors." Pl. Ex. 12. Indeed, the Second Probationary Report notes that nine out of twelve
of Plaintiff's recently completed reports were returned with errors. See id.
Second, Defendants found that Plaintiff established poor relationships with his
colleagues. For example, Farnum testified that he received reports from two of Plaintiff's
coworkers that Plaintiff "would be disruptive, would talk over his co-workers while they were
speaking, and refused to follow directions." Farnum Aff.

16

ii 33.

Frasco similarly testified that

Plaintiff's coworkers complained about Plaintiff's behavior, explaining that he would "openly
disagree" with them and left them feeling "uncomfortable." Frasco Aff.

~

I I. Defendants'

contemporaneous records again reflect this concern. In the Second Probationary Report, for
instance, Farnum wrote that Plaintiff had "cultivated adversarial relationships with his coworkers and his supervisor." Pl. Ex. I2. Indeed, the report explains that other WCB employees
reported feeling "uneasy working with him," and explained that they "don't trust him" and
feared that "his conduct while in the field with them can result in an unsafe work environment."
Id.

Third, Defendants concluded that Plaintiff did not follow instructions. For example,
Farnum testified that Plaintiff refused to follow his instructions, either because Plaintiff did not
understand the instructions or preferred to do things his way. See Farnum Aff.

~

I 9. As a result,

Farnum was often forced to repeat himself, and Plaintiff's work was not completed on time. See
id. The Second Probationary Report similarly explains that Plaintiff "does not take directions

well from his supervisor" and "routinely dismisses the advice of his supervisor." Pl. Ex. I 2.
Fourth, Defendants found that Plaintiff did not communicate well with members of the
public. Because the role of a Compensation Investigator I required frequent on-site visits to
businesses, effective communication with business owners and other members of the public was
a key part of the job. Plaintiff's colleagues, however, informed his supervisors that Plaintiff
"creat[ed] an unprofessional public display" while working with the public, in part because he
tended to "openly disagree" with his coworkers while on field assignments. Frasco Aff.

~

I I; Pl.

Ex. I2.
Finally, Defendants found that Plaintiff was not sufficiently skilled in using the WCB's
computer system and databases. Farnum testified that Plaintiff was slow to pick up the computer

I7

skills necessary to use the WCB' s system, and that these skills were critical to the work of a
Compensation Investigator I. See Farnum Aff.

if 18. In the Second Probationary Report, Farnum

wrote that Plaintiff "works slowly" and that "his work production falls behind that of his coworkers." See Farnum Aff.

if 35; Pl. Ex. 12.

These reasons constitute legitimate, non-discriminatory reasons for an adverse
employment action. See, e.g., Ya-Chen Chen v. City Univ. ofN.Y., 805 F.3d 59, 74-75 (2d Cir.
2015) (citing an employee's lack of "collegiality" as a legitimate basis for an employer's adverse
decision); Yu v. N. YC. Haus. Dev. Corp., 494 F. App'x 122, 126 (2d Cir. 2012) (summary order)
("The defendants ... proffered legitimate, nondiscriminatory reasons for [an employee's]
discharge, namely that: (1) he spoke to his coworkers and his supervisor in an unprofessional
manner; (2) he failed to complete projects assigned to him; (3) he did not work well with others,
particularly on team projects; (4) he did not communicate well; and (5) he failed to follow
instructions and often deviated from assigned tasks and questioned the work of others, while
failing to complete his own."); Nieblas-Love v. NYC Haus. Auth., 165 F. Supp. 3d 51, 66
(S.D.N. Y. 2016) ("Defendants have plainly put forward legitimate, non-discriminatory reasons
for his termination: namely, that Plaintiff resented receiving instructions from his supervisors,
refused to perform certain assignments, was the subject of complaints ... and was repeatedly
confrontational with, even threatening to, his supervisors."); Robinson v. Zurich N. Am. Ins. Co.,
892 F. Supp. 2d 409, 429 (E.D.N.Y. 2012) (finding that "complaints about plaintiffs
communication style" and concerns regarding the accuracy of the employee's reports constituted
legitimate, non-discriminatory reasons for her termination).

18

c. Pretext
The burden thus shifts back to Plaintiff to show that Defendants' reasons for his
termination were pretextual. "[I]n applying the McDonnell Douglas test to determine whether an
employer's putative purpose is a pretext, a fact-finder need not, and indeed should not, evaluate
whether a defendant's stated purpose is unwise or unreasonable." DeMarco v. Holy Cross High

Sch., 4 F.3d 166, 170-71 (2d Cir. 1993). "Rather, the inquiry is directed toward determining
whether the articulated purpose is the actual purpose for the challenged employment-related
action." Id. at 171. "The pretext inquiry thus normally focuses upon factual questions such as
whether the asserted reason for the challenged action comports with the defendant's policies and
rules, whether the rule applied to the plaintiff has been applied uniformly, and whether the
putative non-discriminatory purpose was stated only after the allegation of discrimination." Id.;
see also, e.g., Whitehurst v. 230 Fifth, Inc., 998 F. Supp. 2d 233, 246 (S.D.N.Y. 2014)
("Plaintiffs may establish pretext ... by demonstrating weaknesses, implausibilities,
inconsistencies, or contradictions in the employer's proffered legitimate, nondiscriminatory
reason for its action." (alterations omitted) (internal quotation marks omitted)).
Plaintiff has attempted to show pretext in several ways. First, Plaintiff argues that
Defendants' negative assessment of his performance is pretextual because it derives mostly from
the findings of Farnum, whom Plaintiff argues is unreliable. As discussed above, however, the
Court finds that Farnum provided credible testimony regarding his experience as Plaintiff's
supervisor. In particular, the Court credits Farnum's testimony that he did not make
discriminatory remarks against Plaintiff and finds that Farnum did not harbor any animus against
Plaintiff that would call into question the truth of his statements regarding Plaintiff's
performance.

19

Second, Plaintiff argues that Defendants' stated reasons for terminating him are
inconsistent with the documentary evidence. It is true that inconsistencies in an employer's
explanation for taking an adverse action may support a finding of pretext. See, e.g., Kwan v.

Anda/ex Grp. LLC, 737 F.3d 834, 846-47 (2d Cir. 2013); Sullivan v. NYC. Dep 't of
Investigation, 163 F. Supp. 3d 89, 100 (S.D.N.Y. 2016). Plaintiff notes that the First
Probationary Report states that his "Quality of Work" was "satisfactory," even though Famum's
testimony and the Second Probationary Report indicated that Plaintiff's work often contained
significant errors. As discussed above, however, the Court finds that this discrepancy was
resolved at trial, as Farnum credibly testified that Plaintiff's work contained unacceptable errors
and that he should have stated that Plaintiff's quality of work was unsatisfactory in the First
Probationary Report. Plaintiff also notes that his "Relationship with Public" rating was
unsatisfactory in the First Probationary Report but not in the second. Again, a reasonable
explanation was provided at trial: in the second report, although the box for "unsatisfactory" in
this field was not checked, the narrative section indicated that Plaintiff had "disagreements with
[his coworkers] in the presence of the public." Pl. Ex. 12. Thus, while the discrepancies
Plaintiff identifies may demonstrate that Defendants were not as careful with their paperwork as
they should have been, they do not suggest that Defendants' proffered reasons for terminating
Plaintiff were pretextual.
Third, Plaintiff points to alleged irregularities in the process of terminating him. Plaintiff
is correct that "[ d]epartures from procedural regularity, such as a failure to collect all available
evidence, can raise a question as to the good faith of the process where the departure may
reasonably affect the decision." Tolbert, 790 F.3d at 438 (quoting Zahorik v. Cornell Univ., 729
F.2d 85, 93 (2d Cir. 1984)). Here, Plaintiff points out that the decision to terminate him on both

20

occasions may have been made in meetings before the probationary reports were completed.
The evidence, however, demonstrated that this sequencing was not entirely irregular. Indeed,
Linda Doody, then the Director of Personnel at the WCB, testified that "a lot of agencies" did
not complete probationary reports before deciding to terminate an employee. Tr. at 107:22. And
even if it were out of the ordinary to make a termination decision in a staff meeting before a
probationary report was completed, Plaintiff has not shown that the decisions made in these
meetings were based on anything other than his poor performance. In fact, the meeting
participants consistently testified that Plaintiffs performance was the key subject of both the
December 2007 meeting and the June 2008 conference call, where the termination decisions
were made. See, e.g., Farnum Aff.

iii! 20, 34; Sunkes Aff. if 36; Tr. at 133:3-14. Thus, the Court

does not find that any procedural irregularities in terminating Plaintiff demonstrate that
Defendants' stated reasons for their decision were pretextual.
Fourth, Plaintiff has attempted to show pretext through the hiring ofreplacements who
were not members of his protected class. Evidence that an employee was replaced by an
individual outside his protected group-particularly if that individual is less qualified-may be
probative of pretext. See, e.g., Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006) ("Under this
Court's decisions, qualifications evidence may suffice, at least in some circumstances, to show
pretext."); Patterson v. McLean Credit Union, 491U.S.164, 187-188 (1989) ("The [employee]
might seek to demonstrate that [the employer's] claim to have promoted a better qualified
applicant was pretextual by showing that she was in fact better qualified than the person chosen
for the position."), superseded on other grounds by 42 U.S.C. § 1981 (b ). Here, Plaintiff
presented evidence that he was replaced by two individuals outside his protected group: namely,
John and Echefu, both of whom are younger and African American. This evidence, while

21

relevant, is ultimately insufficient to establish pretext. In particular, while Plaintiff asserts that
he was more qualified than his replacements, he has not provided evidence-other than his own
testimony-that his replacements were less qualified for the position of Compensation
Investigator I. Indeed, Plaintiff provided no evidence of his replacements' qualifications, and he
did not dispute that one of his replacements received the same score on the qualifying exam as he
did. 6 Thus, evidence of Plaintiffs replacements does not demonstrate that Defendants' reasons
for his termination were pretextual. See, e.g., Holt v. KMI-Cont'l, Inc., 95 F.3d 123, 130 (2d Cir.
1996) (holding that replacement evidence did not demonstrate pretext where the plaintiff merely
"assert[ed] her personal belief that she was the most qualified person for the various positions");
Nguyen v. Dep 't of Corr. & Cmty. Servs., 169 F. Supp. 3d 375, 394 (S.D.N.Y. 2016) (finding

that replacement evidence did not establish pretext where, inter alia, the plaintiff offered
"insufficient evidence, if any evidence at all, to contest the qualifications" of his two
replacements, did "not dispute that [one of his replacements] had the same test score as he," and
relied primarily on his "subjective belief that he was more qualified for the position").
Fifth, Plaintiff argues that, contrary to Defendants' testimony, he was a strong performer.
"In a discrimination case, however, we are decidedly not interested in the truth of the allegations
against plaintiff." McPherson v. NYC. Dep't of Educ., 457 F.3d 211, 216 (2d Cir. 2006).
Rather, the focus is on "what 'motivated the employer,"' and "the factual validity of the
underlying imputation against the employee is not at issue." Id. (emphasis in original) (quoting
US. Postal Serv. Bd. ofGovernors v. Aikens, 460 U.S. 711, 716 (1983)); see also, e.g., Saenger
v. Montejiore Med. Ctr., 706 F. Supp. 2d 494, 508 (S.D.N.Y. 2010) ("Defendant has documented

6

Prior to trial, the Court denied Defendants' motion in limine seeking to exclude evidence of
other employees' qualifications and explained that evidence of the qualifications of Plaintiffs
replacements may be relevant on the issue of pretext.

22

a series of complaints against Plaintiff. . . . It is not for the Court to decide whether these
complaints were truthful or fair, as long as they were made in good faith."). Thus, even if
Plaintiff were correct that he did in fact perform well by industry standards, he would still not
have shown that Defendants acted in bad faith. In any event, the trial evidence did not support
Plaintiffs claim that his work was satisfactory. Rather, the evidence, which consisted of trial
testimony, contemporaneous performance evaluations, and samples of his work product, tended
to show that Plaintiffs overall performance fell short of the standards set for employees in his
position. See, e.g., Johnson v. IAC/Interactive Corp., 2 F. Supp. 3d 504, 514 (S.D.N.Y. 2014)
(finding that "defendants' contention that plaintiffs poor performance-and not unlawful
discrimination--prompted her termination" was not pretextual in light of "numerous
contemporaneous documents from multiple sources, including [the plaintiffs] supervisor and
others who directly reviewed her work, attesting to problems with [her] editing skills, work
product, pace of work, and comedic sensibilities."); Finn v. NY S. Office of Mental Health-

Rockland Psychiatric Ctr., No. 08-CV-5142 (VB), 2011WL4639827, at *14 (S.D.N.Y. Oct. 6,
2011) ("A series of serious, independent, documented and therefore good faith complaints by an
employer undermines an employee's argument that the employer's decision to terminate him was
a pretext for discrimination." (internal quotation marks omitted)), ajf'd, 489 F. App'x 513 (2d
Cir. 2012) (summary order).
Sixth, Plaintiff has attempted to show pretext through evidence that he was not informed
of any problems with his performance. Under some circumstances, the fact that an employee
was not advised of perceived performance problems later cited as a basis for his termination may
suggest pretext. See, e.g., Mihalik v. Credit Agricole Cheuvreux N Am., Inc., 715 F.3d 102, 116
(2d Cir. 2013) ("While [the employer] presented evidence of flaws in [the employee's]

23

performance throughout her employment, the company presented no evidence that anyone
confronted her about these problems before she rejected [a supervisor's] alleged advances .... ").
Here, the evidence suggests that Defendants could have done more to communicate their
concerns to Plaintiff, and that Defendants may not have availed themselves of a formal
counseling mechanism that could be appropriate in the context of performance issues.
Nonetheless, Farnum informally advised Plaintiff of problems with his performance in several
conversations. See Tr. at 183 :24-25, 232: 18-19. Thus, the Court is not persuaded that any
failure to discuss performance issues with Plaintiff demonstrates that these issues were not, in
fact, the basis for Defendants' decision.
Finally, the diversity of the WCB's staff undermines Plaintiffs claim that Defendants
acted with any discriminatory motive in terminating him. "Proof that [an employer's] work force
was racially balanced or that it contained a disproportionately high percentage of minority
employees" may suggest that an adverse employment action was not "discriminatorily
motivated." Furnco Constr. Corp. v. Waters, 438 U.S. 567, 580 (1978); see also, e.g., Wright v.
Jewish Child Care Ass'n ofNY, 68 F. Supp. 3d 520, 527 (S.D.N.Y. 2014) ("Courts have found

that a showing that a workplace contains substantial racial diversity among the employees
comparable to Plaintiff can negate any inference of discrimination that otherwise might have
been created." (alteration omitted) (internal quotation marks omitted)). Here, Farnum and Frasco
testified that the WCB employed several other South Asian employees, at least some of whom
were not born in the United States and at least some of whom were over the age of 65. See
Farnum Aff.

if 41; Frasco Aff. if 20; Tr. at 194:23-196:21, 299:25-301 :7. According to their

testimony, which the Court finds credible, the WCB's other South Asian employees did not have
noticeable difficulties at work, and at least one of them was promoted above the level of

24

Compensation Investigator I. Moreover, Farnum personally supervised, or was supervised by,
South Asian employees during his time at the WCB-indeed, Farnum testified that, at some
point, nearly half of his subordinates were South Asian. See Farnum Aff.

i! 41; Frasco Aff. i! 20;

Tr. at 197:1-3. In light of this evidence, as well as the other evidence presented at trial, the
Court does not conclude that discriminatory animus against members of Plaintiff's protected
groups played any role in his termination.
In sum, Plaintiff has not carried his burden of demonstrating that Defendants' legitimate,
non-discriminatory reasons for his termination were pretextual. Thus, the Court concludes that
Plaintiff has failed to establish that Defendants terminated him on the basis of his race, national
origin, or age under Title VII, Section 1983, or the NYSHRL.

2.

New York City Human Rights Law

Plaintiff also asserts a discrimination claim against Farnum under the NYCHRL. Under
the NYCHRL, it is unlawful for an employer to discriminate against an individual "in
compensation or in terms, conditions, or privileges of employment" because of the individual's
race, national origin, or age. N.Y.C. Admin. Code§ 8-107(1)(a). Pursuant to the New York
City Council's revisions to the NYCHRL in the Local Civil Rights Restoration Act of 2005,
N.Y.C. Local L. No. 85, "courts must analyze NYCHRL claims separately and independently
from any federal and state law claims." Mihalik, 715 F.3d at 109. To prevail on an NYCHRL
claim, a "plaintiff need only show differential treatment-that she is treated 'less well '-because
ofa discriminatory intent." Id. at 110; see also Williams v. NYC Haus. Auth., 872 N.Y.S.2d 27,
39 (1st Dep't 2009). 7 As under state and federal law, causation is an essential element of an

7

"The NYCHRL does not differentiate between discrimination and hostile work environment
claims; rather, both are governed byN.Y.C. Admin. Code§ 8-107(1)(a)." Russo v. NY Presbyterian
Hosp., 972 F. Supp. 2d 429, 449-50 (E.D.N.Y. 2013).

25

NYCHRL claim: "a defendant is not liable ifthe plaintiff fails to prove the conduct is caused at
least in part by discriminatory or retaliatory motives." Mihalik, 715 F .3d at 113.
Plaintiff has not demonstrated that he received any less favorable treatment because of
his race, national origin, or age. As discussed above, Defendants have shown that Plaintiff was
terminated because of his poor work performance, not his protected characteristics. And while it
is true, as Plaintiff argues, that inferior training relative to that of his colleagues could, in theory,
support an NYCHRL claim, the Court does not credit Plaintiff's testimony that he received any
less training than his colleagues. Accordingly, Farnum is not liable to Plaintiff under the
NYCHRL for discrimination on the basis of Plaintiff's race, national origin, or age.
B.

Retaliation Claims
1.

Title VII, Section 1983, and the New York State Human Rights Law

Plaintiff next asserts retaliation claims against the WCB under Title VII and against
Farnum under Section 1983 and the NYSHRL. These retaliation claims are also evaluated under
the McDonnell Douglas burden-shifting framework, although the elements of the prima facie
case are different. See Littlejohn, 795 F.3d at 315. To establish aprimafacie case of retaliation,
an employee must show: "(l) participation in a protected activity; (2) that the defendant knew of
the protected activity; (3) an adverse employment action; and (4) a causal connection between
the protected activity and the adverse employment action." Id. at 316. "Once a prima facie case
of retaliation is established, the burden of production shifts to the employer to demonstrate that a
legitimate, nondiscriminatory reason existed for its action." Summa v. Hofstra Univ., 708 F.3d
115, 125 (2d Cir. 2013) (citation omitted). "If the defendant provides such an explanation, 'the
presumption ofretaliation dissipates,' and the plaintiff must prove 'that the desire to retaliate was
the but-for cause of the challenged employment action.'" Ya-Chen Chen, 805 F.3d at 70

26

(quoting Univ. ofTex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013)); see also Kirkland
v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014); Nieblas-Love, 165 F. Supp. 3d at 70

('"But-for' causation does not, however, require proof that retaliation was the only cause of the
employer's action-it is enough that the adverse action would not have occurred in the absence
of the retaliatory motive." (citing Nassar, 133 S. Ct. at 2533)).
Plaintiff has established a prima facie case of retaliation. First, Plaintiff participated in a
protected activity. "When an employee communicates to her employer a belief that the employer
has engaged in a form of employment discrimination, that communication virtually always
constitutes the employee's opposition to the activity." Crawford v. Metro. Gov 't of Nashville &
Davidson Cty., Tenn., 555 U.S. 271, 276 (2009) (alteration omitted) (emphasis in original)

(internal quotation marks omitted). Prior to his final termination, Plaintiff sent Defendants
several letters in which he alleged that he was subjected to discrimination. See, e.g., Pl. Aff.

ii 72; Pl. Ex. 11. In his April 13, 2008 letter, for example, Plaintiff wrote that his initial
termination "was done for discriminatory reasons" and that he had been "accorded differential
treatment than other American born employees." Pl. Ex. 11 at 4. Plaintiffs communications to
his employer plainly constitute protected activity. See, e.g., Sumner v. U.S. Postal Serv., 899
F .2d 203, 209 (2d Cir. 1990) (explaining that "informal protests of discriminatory employment
practices, including making complaints to management" qualify as protected activities). Second,
Defendants knew of this protected activity. There is no dispute that Defendants received
Plaintiffs letters and were aware that they contained allegations of discrimination and
retaliation. See Sunkes Aff.

ii 35; Tr. at 254:6-8, 295:13-296:2. Third, Plaintiff suffered an

adverse employment action, as his employment was terminated. See PI. Aff.

27

ii 96.

Finally, Plaintiff has shown a causal connection between his protected activity and the
adverse employment action. "[T]he causal connection needed for proof of a retaliation claim can
be established indirectly by showing that the protected activity was closely followed in time by
the adverse action." Summa, 708 F.3d at 127-28 (alteration omitted) (quoting Cifra v. Gen.
Elec. Co., 252 F.3d 205, 217 (2d Cir. 2001)). Plaintiff was terminated approximately three
months after submitting letters in which he expressed concerns about discrimination and
retaliation. Under the circumstances of this case, this period is short enough to infer a causal
connection and thus to create a presumption of retaliation. In particular, given that Plaintiff was
evaluated at three-month intervals and that his termination occurred at the end of the three-month
period in which he complained of discrimination and retaliation, the Court finds that Plaintiffs
protected activities were followed closely enough in time to establish causation. See, e.g., id. at
129 (finding a causal connection on the basis of a seven-month period between protected activity
and an adverse employment action); Espinal v. Goard, 558 F.3d 119, 129 (2d Cir. 2009) (finding
a period of six months sufficient to infer a causal connection); Caputo v. Copiague Union Free
Sch. Dist., 218 F. Supp. 3d 186, 195 (E.D.N. Y. 2016) (finding that a "seven months gap"
between an employee's request for accommodation and the filing of disciplinary charges against
her was not too attenuated to break the causal connection between the employee's protected
activity and an adverse employment action).
The burden thus shifts to Defendants to articulate legitimate, non-retaliatory reasons for
terminating Plaintiff. Defendants have carried this burden. As discussed above, Defendants
have explained they terminated Plaintiff on the basis of several perceived deficiencies in his
performance-namely, that his work contained a large number of errors, that he established
adversarial relationships with his coworkers, that he did not follow instructions, that he behaved

28

inappropriately while communicating with members of the public, and that he lacked adequate
computer skills to efficiently use the WCB's systems.
The burden next shifts back to Plaintiff to show that Defendants' proffered reasons for
terminating him were pretextual and that, but for his protected activity, he would not have been
terminated. Plaintiff has not carried this burden. As discussed above, Plaintiff has not shown
that Defendants' stated reasons for his termination were not the true basis for their decision.
Moreover, Defendants documented their concerns with Plaintiff's performance long before he
engaged in any protected activity. In particular, Farnum completed the First Probationary
Report, which identified several deficiencies in Plaintiff's performance, on February 27, 2008weeks before Plaintiff threatened to "take the wrongful termination to the news media" and
before he complained of discrimination and retaliation in letters to WCB officials. Pl. Aff.

~~

67,

70-73; see Pl. Exs. 9, 10, 11. In addition, Defendants maintained a consistent view of Plaintiff's
performance before and after he began engaging in protected activity. Indeed, the First
Probationary Report, which was completed before Plaintiff's complaints of discrimination and
retaliation, and the Second Probationary Report, which was completed after this protected
activity, identify several of the same concerns, and both reports conclude that Plaintiff's
performance was inadequate. Compare Pl. Ex. 7, with Pl. Ex. 12. On the basis of this evidence,
the Court concludes that Defendants' stated concerns with Plaintiff's performance were not mere
pretext for retaliation. See, e.g., Ya-Chen Chen, 805 F.3d at 70-71 (holding that an employer's
stated concerns with an employee's collegiality were not pretextual where the employer "took
issue with [the employee's] collegiality long before" she filed a complaint and "maintained a
consistent perspective afterwards"); Weinstock v. Columbia Univ., 224 F.3d 33, 45 (2d Cir.
2000) (noting that "the consistency of the viewpoint expressed by [a supervisor] ... only further

29

supports [the employer's] proffered nondiscriminatory reason" for taking an adverse
employment action).
Nor has Plaintiff established pretext through direct evidence of Defendants' retaliatory
motives. Plaintiffs affidavit asserts that, when he returned to work on April 17, 2008, after
writing complaints to the WCB, Farnum "angrily stated that [his] 'days are going to be
numbered."' Pl. Aff.

~

74. Plaintiff also claims that, at some point after he was reinstated,

Farnum showed Plaintiff the letters he had sent to Sunkes and stated, "They are not going to
believe anything you have to say against me." Pl. Aff.

~

82. As discussed above, however, the

Court does not credit that Farnum made such statements. Thus, Plaintiff's argument that he has
presented direct evidence of Defendants' retaliatory intent is unavailing.
In sum, the Court finds that Defendants are not liable to Plaintiff for retaliation under
Section 1983, Title VII, or the NYSHRL.
2.

New York City Human Rights Law

Finally, Plaintiff asserts a retaliation claim against Farnum under the NYCHRL. "[T]he
retaliation inquiry under the [NYCHRL] is 'broader' than its federal counterpart." Fincher v.
Depository Tr. & Clearing Corp., 604 F.3d 712, 723 (2d Cir. 2010) (citing Williams, 872
N.Y.S.2d at 34). Under the NYCHRL, "retaliation 'in any manner' is prohibited, and 'the
retaliation ... need not result in an ultimate action with respect to employment ... or in a
materially adverse change in the terms and conditions of employment.'" Id. (alterations omitted)
(quoting N.Y.C. Admin. Code§ 8-107(7)). "[T]o prevail on a retaliation claim under the
NYCHRL, the plaintiff must show that he took an action opposing his employer's
discrimination, and that, as a result, the employer engaged in conduct that was reasonably likely
to deter a person from engaging in such action." Mihalik, 715 F.3d at 112. Under the NYCHRL,

30

"a plaintiff still must establish 'that there was a causal connection between his protected activity
and the employer's subsequent action, and must show that a defendant's legitimate reason for his
termination was pretextual or motivated at least in part by an impermissible motive."' Baez v.
Anne Fontaine USA, Inc., No. 14-CV-6621 (KBF), 2017 WL 57858, at *4 (S.D.N.Y. Jan. 5,

2017) (quoting Weber v. City of New York, 973 F. Supp. 2d 227, 273 (E.D.N.Y. 2013)).
Even under the NYCHRL's more liberal standard, Plaintiff cannot prevail on his
retaliation claim. Although Plaintiff plainly "took an action opposing his employer's
discrimination" by sending WCB several letters alleging discrimination, he has not demonstrated
that Farnum terminated him or took any other adverse action against him "as a result" of this
activity. Mihalik, 715 F.3d at 112 (emphasis added). Rather, as discussed above, the evidence
shows that Farnum recommended Plaintiff's termination on the basis of legitimate concerns with
his performance, and not on the basis of Plaintiff's opposition to discrimination. Mihalik, 715
F.3d at 112. Accordingly, Plaintiff is not entitled to relief under the NYHCRL.
SANCTIONS

Plaintiff moves for sanctions regarding Defendants' alleged failure to preserve and
produce records of the corrections made to his investigative reports. See Pl.'s Ltr. to Ct. (May
23, 2017); Pl.'s Ltr. to Ct. (May 25, 2017). While the Court is troubled by the possible spoliation
of evidence, it declines to impose the sanctions Plaintiff requests.
A.

Background

At trial, both parties addressed the extent to which Plaintiff's investigative reports
contained errors. Although corrected copies of two of Plaintiff's reports were admitted into
evidence, the trial record did not contain drafts of Plaintiffs' reports or records identifying
corrections made to his reports. When asked whether he had examples of Plaintiff's draft

31

reports, Farnum responded, "I kept a copy of the corrections that I made, but when I retired, as I
mentioned yesterday, I threw everything-retired, I cleaned out my office." Tr. at 204:6-8. In
response to the Court's questioning, Farnum explained that the WCB's stored copies of the
reports were "the corrected copies," but that he had kept copies of "the front page [of the report]
where ... [he] had to make the corrections." Tr. at 205:1-5. Farnum testified that, shortly
before his April 29, 2010 retirement, he threw away his copies of the reports because he "had to
clean up the desk." Tr. at 205:11-15.
In response to this testimony, Plaintiff raised the issue of a possible discovery violation
and requested sanctions. See Tr. at 206:3-9; Pl. 's Ltr. to Ct. (May 23, 2017). During a hearing
on the issue, Defendants' counsel notified the Court that, just prior to the hearing, Farnum
informed counsel that his former colleagues may have located "some of his old files that he kept
which might include or does include some of the documents at issue." Tr. at 342:20-22. When
asked by the Court, Plaintiff stated that he did not seek to reopen the trial and that the Court need
not conduct any further investigation, including by questioning Farnum. Tr. at 348: 15-18,
350:5-16, 353:7-13. There is no dispute that Plaintiff never requested the documents
Defendants may have destroyed. See Defs. Ltr. to Ct. (May 24, 2017); Pl. Ltr. to Ct. (May 25,
2017).
As a sanction for the alleged spoliation of this evidence, Plaintiff requests that the Court
"(i) strike all testimony from any defense witness regarding purported errors in Plaintiff's work
product; and/or (ii) make an adverse inference that Plaintiff's work product did not contain errors
as Defendants claim." Pl.' s Ltr. to Ct. at 1 (May 23, 2017).

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B.

Analysis

"Spoliation is the destruction or significant alteration of evidence, or failure to preserve
property for another's use as evidence in pending or reasonably foreseeable litigation." Allstate
Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450, 457 (2d Cir. 2007) (quoting West v.
Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)). A party seeking sanctions for
spoliation has the burden of demonstrating: "(1) that the party having control over the evidence
had an obligation to preserve it at the time it was destroyed; (2) that the [evidence was] destroyed
with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party's
claim or defense such that a reasonable trier of fact could find that it would support that claim or
defense." Chin v. Port Auth. ofNY & NJ, 685 F.3d 135, 162 (2d Cir. 2012) (quoting
Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002)); see also,
e.g., Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 220 (S.D.N.Y. 2003).
"The determination of an appropriate sanction for spoliation, if any, is confined to the
sound discretion of the trial judge, and is assessed on a case-by-case basis." Fujitsu Ltd. v. Fed.
Express Corp., 247 F.3d 423, 436 (2d Cir. 2001) (citation omitted). Any sanction that a court
chooses to impose must be designed to: "(1) deter parties from engaging in spoliation; (2) place
the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore
the prejudiced party to the same position he would have been in absent the wrongful destruction
of evidence by the opposing party." West, 167 F.3d at 779 (internal quotation marks omitted);
see also Chin, 685 F.3d at 162. "Thus, how severe a sanction is warranted will depend on the
extent of the discovered party's non-compliance with discovery obligations, the degree of that
party's culpability, and the extent to which the non-compliance prejudiced the other parties."
R.F.MA.S., Inc. v. So, 271 F.R.D. 13, 24 (S.D.N.Y. 2010), opinion adopted, 271 F.R.D. 55

33

(S.D.N.Y. 2010). "[I]t is well accepted that a court should always impose the least harsh
sanction that can provide an adequate remedy." Tchatat v. O'Hara, No. 14-CV-2385 (LGS)
(GWG), 2017 WL 1379097, at *4 (S.D.N.Y. Apr. 14, 2017) (citation omitted).
Assuming that Farnum's copies of the corrections to Plaintiff's reports were in fact
destroyed, the Court concludes that the three elements of spoliation are satisfied. First,
Defendants had an obligation to preserve these records at the time they were destroyed. "The
obligation to preserve evidence arises when the party has notice that the evidence is relevant to
litigation or when a party should have known that the evidence may be relevant to future
litigation." Fujitsu, 247 F.3d at 436. Here, at the latest, Defendants had an obligation to
preserve relevant evidence when they were notified of Plaintiff's EEOC charge on June 5,
2009-several months before Farnum threw the reports away. See Defs.' Ltr. to Ct. at 3 (May
24, 2017); Hawley v. Mphasis Corp., 302 F.R.D. 37, 48 (S.D.N.Y. 2014) ("[C]ourts in this
Circuit regularly find that an EEOC charge puts an employer on notice that it likely faces future
litigation."). Second, Farnum acted with a sufficiently culpable state of mind: although the Court
does not find that Farnum acted in bad faith, he was at least negligent in failing to preserve all
documents at issue. See Residential Funding Corp., 306 F.3d at 108. Finally, as to the relevance
requirement, the Court considers it unlikely that the missing evidence would have been favorable
to Plaintiff. 8 Nevertheless, a reasonable factfinder could conclude that the reports would

8

Notably, the Court examined two examples of Plaintiffs reports at trial. While Plaintiff
testified that his reports were "perfect," Tr. at 59: 18-19, Farnum credibly testified that one of the reports
contained sufficient errors to be rejected by a supervisor, see Tr. at 172:2-23, 173: 19-22. As discussed
above, Farnum's analysis of this report may reasonably be questioned, and indeed it was at trial. At a
minimum, however, Farnum's testimony, along with the Court's independent review of these two
investigative reports, casts serious doubt on Plaintiffs claim that the destroyed evidence would support
his case.

34

corroborate Plaintiffs testimony about his work product and undermine Defendants' testimony
to the contrary. Thus, Plaintiff has satisfied the threshold requirements of a spoliation claim.
Under the facts of this case, however, the Court does not find that the "extreme
sanctions" of preclusion or an adverse inference are appropriate. Pall Corp. v. 3M Purification
Inc., 279 F.R.D. 209, 213 (E.D.N.Y. 2011) (alteration omitted). Most importantly, Plaintiff has

shown very little, if any, prejudice from the spoliation of the records at issue. "[A] court should
never impose spoliation sanctions of any sort unless there has been a showing-inferential or
otherwise-that the movant has suffered prejudice." Jn re Pfizer Inc. Sec. Litig., 288 F.R.D. 297,
316 (S.D.N.Y. 2013) (citation omitted). "Where the discovery violation involves spoliation or
withholding of evidence, the absence of prejudice can be shown by demonstrating ... that during
discovery [the other parties] never asked for the evidence later shown to have been spoliated."
R.F.MA.S., 271 F.R.D. at 25; see also Gutierrez-Bonilla v. Target Corp., No. 08-CV-3985 (JS)

(AKT), 2009 WL 5062116, at *4 (E.D.N.Y. Dec. 16, 2009) ("Courts in the Second Circuit have
consistently denied motions for spoliation sanctions where the moving party did not seek to
inspect the evidence within a reasonable time." (collecting cases)). Here, there is no dispute that,
since this case was filed more than seven years ago, Plaintiff never requested drafts of or
corrections to his investigative reports or even inquired about their existence. Indeed, as Plaintiff
does not dispute, these reports were not within the scope of any of his discovery requests in this
action. 9 Thus, Plaintiff cannot claim that he was prejudiced by the destruction of these records,
which he never asked to see. See, e.g., Fujitsu, 247 F.3d at 436 (affirming trial court's denial of

9

In addition, it does not appear that Plaintiff ever requested the preservation of the records at
issue. See Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450, 458 (2d Cir. 2007)
(holding that a district court abused its discretion in imposing sanctions for spoliation, where the moving
party did not request the preservation of the destroyed evidence and disclaimed any interest in it, despite a
full opportunity to inspect the evidence).

35

a spoliation sanction in part because the moving party "admit[ted] that it never contacted [the
opposing party] to seek an opportunity to inspect [the destroyed evidence] or otherwise request
that [it] should be retained"); Gutierrez-Bonilla, No. 08-CV-3985 (JS) (AKT), 2009 WL
5062116, at *4 (denying request for spoliation sanctions because "the Court is unaware of any
discovery demands served by Plaintiff pertaining to preservation or inspection" of the destroyed
evidence); Klezmer ex rel. Desyatnikv. Buynak, 227 F.R.D. 43, 52 (E.D.N.Y. 2005) (denying
spoliation sanctions where "plaintiffs bear fault here too, for failing to ever request an inspection
of [the destroyed evidence] or a deposition of defendant's expert"). 10
Moreover, considerations of deterrence do not weigh in favor of the sanctions Plaintiff
requests. In particular, Farnum's conduct in failing to preserve the records at issue hardly
constitutes the type of evasive or obstructive behavior the spoliation doctrine was designed to
prevent. Farnum testified that he destroyed the records because he simply "had to clean up the
desk" when he retired. Tr. at 205:1-12. There is no evidence that Farnum's decision to destroy
the records at issue had anything to do with this litigation. See, e.g., Royal Park Jnvs. SA/NV v.
US. Bank Nat'! Ass 'n, No. 14-CV-2590 (VM) (JCF), 2016 WL 6705773, at *6 (S.D.N.Y. Nov.

9, 2016) (explaining that, where a party's "willful conduct occurred even before the law suit
commenced," the "deterrent value of a sanction is diminished"). Nor is there any evidence that
Farnum specifically chose to destroy records related to Plaintiffs employment-indeed, when
questioned by the Court, Farnum testified that he threw away records related to "everyone," not
just to Plaintiff. Tr. at 205:6-7. To be sure, the record suggests that Defendants were not as
organized or careful as they should have been: Defendants' current counsel did not meet Farnum

10

The Court recognizes that Plaintiff was proceedingpro se during discovery in this action.
Nonetheless, even when Plaintiff was well represented by counsel at trial, he did not seek to review any of
the reports that Farnum may have destroyed.

36

before his retirement, see Tr. at 208: 10-12, and it is at least possible that the WCB had not
informed Farnum of his duty to preserve records in connection with this action. Yet despite
Defendants' negligence, it does not appear that they acted with a level of culpability that
warrants a harsh sanction. 11
In light of Defendants' relatively limited culpability and Plaintiffs failure to request or
inquire about the existence of the corrected reports, the Court declines to make an adverse
inference or strike any testimony. Nevertheless, in its capacity as factfinder, the Court has
considered the potential destruction of the reports, and has accordingly given less weight to the
testimony by defense witnesses regarding errors in Plaintiffs work. Cf Golia v. Leslie Fay Co.,
No. 01-CV-1111(GEL),2003 WL 21878788, at *11 (S.D.N.Y. Aug. 7, 2003) (giving a
permissive, rather than a mandatory, adverse inference instruction to the jury on similar facts). 12

11

Plaintiff also argues that, had the records been preserved, he would have received them through
Defendants' disclosures under Federal Rule of Civil Procedure Rule 26(a)(l)(A)(ii). This argument is not
persuasive. By its terms, Rule 26(a)(l )(A)(ii) only requires the disclosure of "documents, electronically
stored information, and tangible things that the disclosing party ... may use to support its claims or
defenses." Fed. R. Civ. P. 26(a)(l)(A)(ii) (emphases added). The advisory committee notes to the Rule's
2000 amendment clarify that "[a] party is no longer obligated to disclose witnesses or documents, whether
favorable or unfavorable, that it does not intend to use." Fed. R. Civ. P. 26 Advisory Committee Notes.
While Plaintiff is correct that Defendants' witnesses ultimately testified about the errors in his
investigative reports, Plaintiff has made no claim that Defendants ever "intend[ed] to use" Farnum's
copies of the corrections to his reports. Id. It is thus far from clear that Rule 26(a)(l)(A)(ii) would have
required Defendants to disclose the records at issue.
12
Even if the Court were to grant Plaintiffs motion for sanctions, it would not find that Plaintiff
is entitled to relief on any of his claims. As discussed above, the purported errors in Plaintiffs
investigative reports were only one of several legitimate, non-discriminatory reasons for his termination:
Defendants explained that they also terminated Plaintiff because (I) he established poor relationships with
his supervisor and coworkers, (2) he failed to follow instructions, (3) he did not communicate well with
members of the public, and (4) he was not efficient in using the WCB's computer system and databases.
Plaintiff has not shown that any of these stated reasons for his termination were mere pretext for
discrimination or retaliation. Thus, even if the Court were to accept Plaintiffs testimony that his work
product was "perfect," Tr. at 59: 18-19, it would not find that he suffered any adverse employment action
or was treated any less well because of his protected characteristics or activities.

37

CONCLUSION
In sum, the Court concludes that Plaintiff is not entitled to relief on any of his claims.
Accordingly, the Court enters judgment in favor of the WCB on Plaintiffs discrimination and
retaliation claims under Title VII and judgment in favor of Winston Farnum on Plaintiffs
discrimination and retaliation claims under Section 1983, the NYSHRL, and the NYCHRL.
The Court notes that the parties' submissions in connection with Plaintiffs motion for
sanctions have not been publicly filed. No later than June 30, 2017, the parties shall file these
submissions on ECF.
The Clerk of Court is directed to enter judgment in favor of Defendants and to close this
case.
SO ORDERED.
Dated:

June 28, 2017
New York, New York

I
~"~""'Abrams

nited States District Judge

38