Kirkland v. Cablevision Systems

Filing 77

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 33 Motion for Summary Judgment filed by Garry Kirkland, 55 Report and Recommendations: Having found Judge Fox's decision to be correct and appropriate upon de novo review, see Fed. R. Civ. P. 72( b), his Report is hereby ADOPTED. Plaintiff's motion for summary judgment is DENIED in its entirety. Defendant's motion for summary judgment is GRANTED, in part, by dismissing Plaintiff's time-barred claims as well as his Title VII and NYSHRL claims alleging race-based termination, hostile work environment, and disparate treatment. Defendant's motion is DENIED as it pertains to Plaintiff's retaliatory discharge claim and all Plaintiff's claims under the NYCHRL. (Signed by Judge Loretta A. Preska on 9/30/2012) Copies Mailed By Chambers to Litigant. (djc)

USDCSDNY
DOCU~1ENT

ELECfRONICAlLY FILED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------X
GARRY KIRKLAND,

DOC#: ____~~~-; DATE FILED: _, !"l D /t~

o9

Ci v. 1 0 2 3 5 ( LAP) (KNF)

Plaintiff,
ORDER ADOPTING REPORT &
RECOMMENDATION

v.
CABLEVISION SYSTEMS,
Defendant.
------------------------------x

LORETTA A. PRESKA, Chief United States District Judge:
Plaintiff Garry Kirkland ("Kirkland H or "Plaintiff H)
brought this action pro se against his former employer
Cablevision Systems New York City Corporation
{"Cablevision H or "DefendantH)l pursuant to Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C.
et seq.

§§

2000e,

("Title VIIH) i Section 296(1) of the New York

Executive Law (the "New York State Human Rights LawH or
"NYSHRL H)

i

and Section 8-107 of the New York City

Administrative Code (the "New York City Human Rights LawH
or "NYCHRL H).
The parties filed cross motions for summary judgment
[dkt. nos. 33 & 52] and on October 14, 2011, Magistrate
Judge Fox issued a Report and Recommendation (the "ReportH)
[dkt. no. 55] denying Plaintiff's motion in all respects
Defendant is identified in Plaintiff's amended complaint
as "Cablevision Systems. H

1

1

and granting Defendant's motion, in part, and denying it,
in part.

(Report at 33.)

Specifically, in addition to

Judge Fox's recommendation that Plaintiff's motion be
denied in its entirety, the Report recommended that summary
judgment be granted in favor of Defendant on Plaintiff's
"time-barred claims as well as his Title VII and New York
State Human Rights Law claims of race-based termination,
hostile work environment L] and unequal treatment" and that
Defendant's motion be denied "as it pertains to the
[P]laintiff's retaliatory discharge claim and all the
claims he has asserted under the New York City Human Rights
Law.

II

Id.

Having reviewed the Report as well as the

parties' objections and responses and having nonetheless
found Judge Fox's decision to be correct and appropriate
upon de novo review, see Fed. R. Civ. P. 72(b), the Report
is hereby ADOPTED.
The standard for summary judgment set forth in the
Report is uncontroversial but is expanded upon here in
light of certain objections by Plaintiff.

Plaintiff

objects repeatedly to the Report's characterization of some
background facts as "undisputed," yet he fails to
articulate specifically why now labeling those particular
facts as disputed should undermine the Report's
recommendations.

(See pl.'s Mem. of Law in Support of His
2

Objections [dkt. no. 61]

("PI.'s Objs.") at 5-7, PI's Reply

to Def.'s Response to PI.'s Objs.

[dkt. no. 65] at 11-14.)

As the Report explains, the threshold inquiry is not
whether certain facts are in dispute but whether there
exists a genuine issue of material fact.

(Report at 18.)

" [E]ven in the fact-intensive context of discrimination
cases," "Lilt is now beyond cavil that summary judgment may
be appropriate.

1f

Abdu-Brisson v. Delta Air Lines, Inc.,

239 F.3d 456, 466 (2d Cir. 2001), cert. denied, 534 U.S.
993 (2001)i see also Weinstock v. Columbia Univ., 224 F.3d
33, 40 (2d Cir. 2000)

(instructing that "trial courts

should not 'treat discrimination differently from other
ultimate questions of fact'")

(quoting Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 148 (2000)).
Accordingly, a plaintiff alleging Title VII discrimination
claims "cannot escape summary judgment merely by vaguely
asserting the existence of some unspecified disputed
material facts

. or defeat the motion through mere
v. Hirschfeld, 348 F.

speculation or conjecture."
Supp. 2d 50, 59 (S.D.N.Y. 2004).

Rather, Rule 56 mandates summary judgment "against a
party who fails to make a showing sufficient to establish
the existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
3

trial."

Celotex, 477 U.S. at 322.

" [T]here is no issue

for trial unless there is sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that
party.

If the evidence is merely colorable or is not

significantly probative, summary judgment may be granted."
Anderson v. Liberty Lobby, 477 U.S. 242, 249-50
(internal citations omitted).

(1986)

In the face of insufficient

evidence, "there can be 'no genuine issue as to any
material fact,' since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial./I
Celotex Corp. v. Catrett, 477 U.S. 317, 322 23

(1986).

In accordance with this standard, the Court agrees
that Plaintiff's race-based termination claims under Title
VII and the NYSHRL must fail.

Plaintiff did not offer

specific timely objections to this part of the Report, but
even if he had, the facts Plaintiff seeks to re
characterize as

sputed do not overcome the non­

discriminatory reasons proffered by the Defendant for
Plaintiff's termination.

His merely asserting them to be

"pretext" does not make them so.

See Jones, 348 F. Supp.

2d at 59.
Plaintiff also objects to the Report's analysis of his
disparate treatment claim.

To state a
4

facie case for

=.:::::....:.~~--=---

disparate treatment discrimination, Plaintiff must
demonstrate:

(1) membership in a protected class;

he was qualified for his position;

(2) that

(3) that he experienced

an adverse employment action; and (4) that circumstances
surrounding the adverse employment decision give rise to an
inference of discrimination.
F.3d 140, 151 (2d Cir. 2006).

See Demoret v.

Ii, 451

---------------=~-----

Claims of disparate

treatment are analyzed under the burden-shifting framework
set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-04 (1973).

See id.

If Plaintiff establishes a

facie case, Defendant may proffer a legitimate, non­

~----------

discriminatory reason for the alleged adverse employment
action.

If Defendant meets this burden, Plaintiff must

then establish, by a preponderance of the evidence, that
Defendant's stated reasons are merely pretext for
discrimination.

See id.

Upon review, however, Plaintiff's objections are
meritless.

In addition to rehashing arguments rejected by

the Report, Plaintiff asserts that the Report fails to
consider evidence that his white predecessor was permitted
to use a lower volume store as his home base as sufficient
to establish the fourth element

a prima facie case.

while the Plaintiff is correct that the Report does not
specifically note this claim, plaintiff's concerns are

5

covered by the Report's general conclusion, upon
consideration of all Plaintiff's evidence, that "he has not
presented evidence establishing the criteria under which
other AOMs were evaluated or the criteria [Defendant]
employed for designating home base stores" and that such
"evidence is needed to assess whether, in the circumstance
of this case, an inference of discrimination may be drawn
either from an inconsistent application of the criteria
among white and black AOMs or a failure to employ the
criteria at all with respect to the white AOMs."
at 29 30.)

(Report

Even taking Plaintiff's contention regarding

his predecessor as true, it is mere conjecture and
speculation without more considering the amount of time
between his predecessor's departure in 2004 and the denial
of Plaintiff's request in 2008.
Additionally, the Court agrees with the Report's
analysis under the McDonnell Douglass standard of
Defendant's proffered reasons for disparity in salary among
Cablevision AOMs, Report at 30-31, and declines to
entertain Plainti

's apparently new claim for relief under

the Equal Pay Act of 1963, 29 U.S.C.

§

206 (d) (1), for

disparate pay on account of his sex, see PI.'s Objs. at 3.
Throughout this case, Plaintiff's allegations have been
limited to claiming that he was discriminated against on
6

account of his race and that he was retaliated against for
engaging in protected activity.
proceedings

I

At this stage in the

Plaintiff is not entitled to assert an

entirely new theory of liability that was never pleaded or
briefed.

----'----'--''''-­

Screen Gems Film CO.
(S.D.N.Y. Oct. 18
Furthermore

1

Columbia Pictures Indus.

I

I

Inc.

1

2001 WL 1254838

1

I

Inc. v.

at *9

2001).
this Court agrees with the Report/s

I

analysis and conclusions regarding Plaintiff/s hostile work
environment claim

l

including its conclusions about the

evidence regarding statements made by Bob Cockerill after
Plaintiff/s termination

l

as recounted in the deposition

testimony of Kathryn Nivins.
facel

(Report at 25-28.)

On their

Cockerill/s comments to Nivins are race neutral.

the Report points OUtl

"

As

[Nivins] testified at her

deposition that she did not understand what Cockerill meant
and she did not ask him to explain them.1I
27.)

(Report at

While Plaintiff is correct that "employers rarely

shout from the roof tops [sic] their intentions to
discriminate against employees

ll
l

this does not absolve

Plaintiff of the burden to present sufficient evidence to
elevate his interpretation of the comments attributed to
Cockerill to a level beyond mere conjecture or speculation
in order to survive summary judgment.
7

Finally, the Court also agrees with the Report's
recommendations that Plaintiff's retaliatory discharge and
NYCHRL claims survive.

In order to survive summary

judgment on a Title VII retaliation claim, Plaintiff must
offer sufficient evidence to permit a reasonable jury to
find that

(1) he engaged in a protected activity known to

Defendant;

(2) Defendant took an adverse employment action

against him; and (3) that "a causal connection exists
between the protected activity and the adverse action,
i.e., that a retaliatory motive played a part in the
adverse employment action."

Kessler v. Westchester Cnty

Dep't of Soc. Servs., 461 F.3d 199, 205-06 (2d Cir. 2006)
(citation omitted).

Retaliation claims also are analyzed

under the McDonnell Douglas burden-shifting framework.
Plaintiff's NYCHRL claim is analyzed using a substantially
similar, though more liberalized framework.
DeMarco v. CooperVision, Inc., 369 Fed. Appx. 254, 255 (2d
Cir. 2010) i Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d
27, 33-34 (1st Dep't 2009) .
As for Defendant's objections to the Report's
recommendations on the retaliatory termination claim,
although Defendant's apparent willingness to "[give}
Plaintiff .

another chance with a new manager,"

(Def.'s

Memo. of Law in Support of Its Objections ("Def.'s Objs.")
8

at 9), after one of his complaints may suggest the absence
of retaliatory animus, that Plaintiff continued his duties
under a new manager but was still later subjected to
retaliatory termination is not beyond the realm of
possibility as a matter of law.

Additionally, though the

Report only briefly addresses the causal element of a
retaliation claim, Plaintiff has satisfied the threshold
here.

As explained in Gorzynski v. JetBlue Airways Corp.,

the Court of Appeals "has not drawn a bright line defining,
for the purposes of a prima facie case, the outer limits
beyond which a temporal relationship is too attenuated to
establish causation," and it has specifically "held that
five months is not too long to find the causal
relationship."

596 F.3d 93, 110 (2d Cir. 2010)

(citing

Gorman Bakos v. Cornell Coop. Extension of Schenectady
Cnty., 252 F.3d 545, 555 (2d Cir. 2001)).

As Defendant

acknowledges, some of Plaintiff's alleged complaints
occurred within five months of his formal termination in
December 2008.

(Def.'s Objs. at 8.)

While the exact

number of complaints lodged by Plaintiff, the dates of
those complaints, and the content of the same may
eventually come to bear on Plaintiff's ability to show
causation at trial, such remain in dispute between the
parties and are genuine issues of material fact beyond the
9

purview of this Court when considering a motion for summary
judgment.
As for Plaintiff's NYCHRL claims, Defendant
mischaracterizes the Report as relying solely on Albunio v.
City of New York, 16 N.Y.3d 472

(2011), a case decided

after the parties submitted their papers on summary
judgment.

The Report merely uses a phrase from Albunio to

summarize the portion of the New York City Administrative
Code,

§

8-130, it had just quoted.

See Report at 32.)

The fact that the NYCHRL must be viewed more broadly than
its federal and state counterparts predates the parties'
motions for summary judgment.

See Williams, 872 N.Y.S.2d

at 31 34 (a case also cited in the Report at 21 n.4) .
Whereas Defendant urges the Court to hold that Plaintiff
abandoned the argument that

tIe VII and the NYSHRL

represent "a floor below which the [NYCHRL] cannot fall,
rather than a ceiling above," see id. at 31, the Court
refuses to accept Defendant's invitation to harness a pro
se plaintiff with a heightened standard for analyzing his
NYCHRL claims.

Therefore, the Court accepts the Report's

reasoning on this issue.

10

CONCLUSION

Having found Judge Fox's decision to be correct and

appropriate upon de novo review, see Fed. R. Civ. P. 72(b),
his Report is hereby ADOPTED.

Plaintiff's motion for

summary judgment is DENIED in its entirety.
motion for summary judgment is GRANTED,

Defendant's
part, by

dismissing Plaintiff's time-barred claims as well as his
Title VII and NYSHRL claims alleging race-based
termination, hostile work environment, and disparate
treatment.

Defendant's motion is DENIED as it pertains to

Plaintiff/s retaliatory discharge claim and all Plaintiff/s
claims under the NYCHRL.

SO ORDERED.

Dated:

September~,

2012

LO~E~~
Chief U.S. District Judge

11