Hiralall v. Sentosacare, LLC et al
OPINION re: 34 FIRST MOTION for Summary Judgment. Defendants' motion for summary judgment is hereby GRANTED in its entirety. This Order resolves the motion at ECF No. 34. The Clerk of the Court is directed to enter judgment accordingly and close this case. (As further set forth in this Order.) (Signed by Judge George B. Daniels on 3/18/2016) (adc)
UNITED ST ATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-againstSENTOSACARE, LLC; THROGS NECK
EXTENDED CARE FACILITY; THROGS NECK :
OPERA TING COMPANY, LLC; ERIC
ELEZOVIC; RIDDEL GARDNER;
CONFIDENCE MANAGEMENT SYSTEMS,
13 Civ. 4437 (GBD)
GEORGE B. DANIELS, United States District Judge:
On October 9, 2013, Plaintiff Bhairo Hiralall filed an Amended and Supplemental
Complaint (together, "Amended Complaint," (ECF Nos. 20, 20-1 )) against Defendants
Sentosacare, LLC ("SentosaCare"), Throgs Neck Extended Care Facility ("the Facility"), Throgs
Neck Operating Company, LLC ("the Operating Company"), Eric Elezovic, Riddel Gardner,
Confidence Management Systems, LLC ("Confidence"). Plaintiff alleges he was subjected to
disparate treatment and a hostile work environment based on his national origin and race, and
retaliated against because of complaints about such discrimination, in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2-3. (Am. Compl., at ,-i,-i 53, 68, 93.) Plaintiff also
asserts a common law claim for unspecified "emotional distress." (Id., at ,-i,-i 119-120.) Defendants
moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. (See Mot. for
Summ. J., (ECF No. 34); Mem. of Law in Supp. of Mot. ("Mem."), (ECF No. 35).)
Defendants' motion for summary judgment is GRANTED.
I. FACTUAL BACKGROUND
The following facts are taken from the parties' statements filed pursuant to Local Rule
56.1, (Pl.'s Rule 56.1 Statement ("Pl.'s 56.1 Stmt."), (ECF No. 79); Defs.' Rule 56.1 Statement
("Defs.' 56.1 Stmt."), (ECF No. 36)), and from Plaintiffs July 19, 2015 affidavit ("Pl.'s Aff.,"
(ECF No. 57)), submitted in support of his opposition to summary judgment. The facts are
undisputed, unless otherwise noted, or taken in the light most favorable to Plaintiff.
Plaintiff is a Guyanese male oflndian descent who was employed at Throgs Neck Extended
Care Facility ("the Facility") for over seventeen years. (Pl.'s Aff., at -ii 3.) Throgs Neck is a 205bed nursing home and rehabilitation facility in the Bronx. (Defs.' 56.1 Stmt., at -ii 37.) Plaintiff
began his tenure at Throgs Neck as a housekeeper on August 20, 1996. (Pl.'s Aff., at -ii 11.) In
July of 2001, Plaintiff was promoted to the Engineering Department (also known as the
"Maintenance Department," (Defs.' 56.1 Stmt., at -iJ 41)), as a painter and received a salary
increase. (Pl.'s Aff., at -iJ-i! 12-13, 15.) The Facility also employed Plaintiffs wife, Padmini
Hirallal, sister-in-law, Rohini Gunanathan, and brothers-in-law, Premenand Khubba and
Shivanathan Gunanathan, at the time Plaintiff commenced the instant action. (Defs.' 56.1 Stmt.,
at -ii-ii 82-94.) Plaintiffs family relations identify as Guayanese oflndian descent. (See id.)
Plaintiff's tenure appears to have been uneventful until late 2008. In December 2008,
Throgs Neck's Director of Environmental Services, Paul Gjelaj, transferred Plaintiff from
Maintenance back to Housekeeping, stating that the painter position was no longer needed. (Defs.'
56.1 Stmt., at-iJ 46; Pl.'s 56.1 Stmt., at-iJ 47.) Plaintiff experienced neither a reduction in wage rate
nor a reduction in benefits. (Defs.' 56.1 Stmt., at -iJ 48.) In Housekeeping, Plaintiffs duties
consisted of "special project work," which included cleaning, stripping, polishing, and burnishing
the facility floors with heavy machinery. (Id, at -iJ 63.)
Supervisory Structure at Throgs Neck
Gjelaj, of Montenegrin descent, (Pl.'s Aff., at -iJ 21), was a Throgs Neck employee who
oversaw the Maintenance, Housekeeping, and Security Departments. (Defs.' 56.1 Stmt., at -iJ 44.)
According to Defendants, Gjelaj transferred Plaintiff out of the Maintenance Department because
Plaintiff failed to turn off the main water valve at the Facility while attempting to replace another
valve, thereby causing a flood. (See id., at ii 47.)
Around the time of Plaintiff's transfer, Gjelaj hired his nephew, Defendant Eric Elezovic,
to work in Maintenance. (Id., at iJ 49.) Elezovic played no role in his uncle's decision to transfer
Plaintiff to Housekeeping. (Id. at iJ 52.) Elezovic replaced his uncle as Director of Environmental
Services in late May 2009. (See id. at irii 53-54.)
Defendant Riddel Gardner, of Jamaican descent, was Plaintiff's direct supervisor m
Housekeeping until Plaintiff's July 2013 termination. (See id. at iJ 61.) Gardner, in turn, directly
reported to Elezovic. (See id. at iJ 60.) From the time Gardner became Plaintiff's supervisor until
Plaintiff's termination, Gardner was paid by Defendant Confidence Management Systems, LLC.
(See id. at iiii 58-59.)
In 2009, Elezovic asked Plaintiff to partially resume some of the painting Plaintiff had
performed when he was in Maintenance. (Id., at ii 65.) Plaintiffs duties were therefore a mix of
Housekeeping and Maintenance responsibilities, but Plaintiff remained in Housekeeping. (See id.
at ii 66.) When Plaintiff later discovered that two other employees had been hired as painters, he
made at least two "informal complaints" that his transfer was unfair because of his seniority to
Jody Bonura, the Facility's administrator and Corporate Compliance Officer, and to his local union
shop steward. (See PI.'s Aff., at iii! 29-31; Oral Arg. Tr. ("Tr."), 37:24-38:12, 44:13-46:25.)
On May 13, 2010, Elezovic and Gardner increased Plaintiffs responsibilities to include
burnishing sixty rooms and all hallways. (Defs.' 56.1 Stmt., at iJ 101.) Gardner shouted at Plaintiff
when Plaintiff disagreed with the assignment. (Pl.' s Aff., at iJ 56.) Plaintiff got upset, was escorted
from the building by security, and was suspended from work for part of a day for refusing to
complete the assignment. (Defs.' 56.1 Stmt., at~ 100; Pl.'s Aff., at~ 74.)
Plaintiff wrote a
grievance to his union that same day complaining that his treatment was unfair and that Gardner
was "unprofessional," but his letter did not mention discrimination. (Pl.' s Aff., at ~ 95; see also
Opp'n, Ex. 6, (ECF No. 84); Tr. at 54:10-55:2.) The next day, Plaintiffs assignment was reduced
to thirty rooms. (Defs.' 56.l Stmt.,
More than a year later, in August 2011, Elezovic offered Plaintiff a position as a "floater"
who moved between the Housekeeping and Maintenance Departments, and asked Plaintiff to sign
a letter acknowledging this position. (See Defs.' 56.1 Stmt., at~ 68.) Plaintiff believed Elezovic
offered him the position in response to Plaintiff's previous informal complaints, and refused to
sign the letter because being a floater was "less desirable" and because it would affect his
availability for his second job as security officer for the Federal Building in Jamaica, New York.
(See Pl.'s Aff.,
After Plaintiff refused, Elezovic changed Plaintiff's duties from "special projects" to
routine housekeeping work on the facility's fifth floor, where Plaintiff replaced a white female of
Italian descent. (See Defs.' 56.1 Stmt.,
69.) Plaintiff asserts that this routine housekeeping
was less desirable than his previous special project work, and believes it was motivated by his
refusal to accept the floater position. (Pl. 's Aff.,
or benefits from this reassignment. (Defs.' 56.1 Stmt.,
Plaintiff experienced no loss of salary
On October 25, 2011, Elezovic accused Plaintiff of changing the posted work schedule and
of watching television during his shift. (See id.
102, 109.) When Plaintiff denied changing
the schedule, Elezovic said, "You people [are] only here to make trouble." (Id.
parties dispute whether Elezovic was referring to Guyanese of Indian ancestry. Elezovic testified
that he has never made any derogatory remarks regarding Guyanese persons either to Plaintiff or
in Plaintiff's presence. (Id. at~ 107.) Because Gardner advised Elezovic that he, not Plaintiff, had
changed the posted schedule, Plaintiff was not disciplined for the schedule change. (See id. at ~~
On October 26, Plaintiff wrote two informal grievances complaining that these
accusations left him "feeling victimized" and "mistreated," but did not mention any discrimination
based on his race or nationality. (See Defs.' Reply, Ex. E, (ECF No. 104), at 1-2.)
Around November 2, 2011, Plaintiff filed a formal grievance detailing his "demotion" to
Housekeeping and general mistreatment by Elezovic, including, the pressure to take the floater
position Elezovic had offered him. (See Dcfs. 56.1 Stmt., ~ 114; Pl. 's Aff.,
102; see also Defs.'
Reply, Ex. E, at 3.) However, Plaintiff's grievance did not complain of discrimination based on
his nationality. (See Defs.' Reply, Ex. E, at 3.) Plaintiff also complained that Elezovic enlisted
Jamaican and Haitian Housekeeping employees to help with tasks related to the Facility's roof
repairs for which Elezovic's construction company had been awarded a contract. (See Defs.' 56.1
Stmt., at~~ 118-125.) When Elezovic asked Plaintiff to clear roof debris, Plaintiff refused because
it was outside of his job responsibilities. (See id.
In April 2012, Plaintiff was reassigned to rotate lobby-cleaning shifts with employees who
were of Jamaican and Albanian descent. (Id.,
2013 Workplace Incidents and Plaintiff's Termination
About a year and a half after Plaintiff filed his formal union grievance, on February 11,
2013, Plaintiff received a verbal warning for a pattern of absenteeism around his wife's days off.
(See id. at~ 130 (citing Bonura Aff., at~ 8).) 1 That same month, Elezovic and Gardner spoke
The parties dispute the veracity and admissibility of Defendants' documentation of the incident because
Plaintiff says he had not seen the February notice of discipline, (Bonura Aff., Ex. D), before his
deposition. (Pl.'s 56.1 Stmt., at~ 130.)
with Plaintiff about a broken vacuum cleaner. (See id., at~ 131-3 5.) Plaintiff denied breaking the
vacuum cleaner because it broke on his day off. (Pl.'s 56.1 Stmt., at~~ 131-32.) He was not
disciplined. (Id.) Following this incident, Elezovic required all employees to sign out equipment
before using it. (See Defs.' 56.1 Stmt., at~~ 133-35.) Plaintiff complained about his treatment as
unfair in an informal letter, but did not allege it was because of his national origin. (See Defs.'
Reply, Ex. E, at 5.)
On March 12, 2013, Gardner asked Plaintiff about a broken hand sanitizer dispenser in the
Facility's lobby, where Plaintiff was assigned. (See Defs.' 56.1 Stmt., at~~ 136-38.) The record
does not indicate who broke the dispenser, but Plaintiff again was not disciplined. (See id.) On
March 14, Plaintiff reported Gardner to the Facility's Quality Assurance and Improvement Officer,
Felix Stevenson, because Gardner demanded that Plaintiffs wife ask Plaintiff to clean mildew in
the lobby bathroom-not Plaintiffs normal duty. (Id.
139; Pl.'s Aff.,
did not complain that this treatment was based on his race or nationality. (Pl.'s Dep., (ECF No.
103), at 199:9-200:8.) On March 28, when Plaintiff went to collect his and his wife's checks,
Gardner told Plaintiff he could no longer sign for his wife's check because Plaintiff had reported
Gardner. (Pl.'s Aff.,
Between April 3 and 5, 2013, Elezovic and Gardner increased Plaintiffs workload to
include clearing the bushes of trash and emptying garbage in the lobby and offices. (Pl. 's Aff. at
84-85.) On April 15, Elezovic required Plaintiff to document his hourly activities when Elezovic
asked Plaintiff to clean the Facility's conference room. (Defs.' 56.1 Stmt., at~~ 146-47.) Plaintiff
said that he did not have time to do so. (Id.) As a result of these two incidents, Plaintiff made a
formal grievance to his union and to Bonura. (Defs.' Reply, Ex. E, (ECF No. 104), at 6; Bonura
Dep., (ECF No. 46), at 162.) Plaintiff also filed his EEOC intake questionnaire on April 16
charging race and national origin discrimination, and the Facility received the notice of charge
around April 17. Plaintiff contends that his workload increased again on April 20. (See PI. 's 56.1
Stmt., at ii~ 143-44.)
On April 29, Elezovic warned Plaintiff for being near the Facility's Laundry Room during
his shift, although Plaintiff maintains he was merely giving his paycheck to his wife. (See Defs.'
56.1 Stmt., at~ 148; Pl. 's 56.1 Stmt., atif 148.) Elezovic also denied a month-long vacation request
Plaintiff previously submitted on April 15. (Pl. Dep., (ECF No. 71), at 284:10-25.) On May 8,
Elezovic again wrote up Plaintiff for not working during his shift. (Defs.' 56.1 Stmt., at
Pl.'s 56.1 Stmt., at~ 149.)2
Plaintiff reported the denial of vacation to his union, and on July 1, Elezovic approved
Plaintiff's request for almost three weeks of vacation from July 31 to August 19. (See Pl.'s 56.1
155.) On July 18, Plaintiff met with Elezovic, Gardner, and Pat Sikorski, the union
steward. (Defs.' 56.1 Stmt.,
158.) At the meeting, Plaintiff complained that the night shifts
failed to clean properly, thereby increasing his workload. (Id.
159.) Elezovic offered Plaintiff
the positions held by two Jamaican workers, but Plaintiff rejected this offer because both were
less-desirable "floater" positions. (Id. at ir 160-61.)
On July 29, Elezovic requested a meeting with Plaintiff. (Id.
Sikorski went to Elezovic' s office for the meeting. (Id. at
163.) Plaintiff and
165.) Plaintiff told Elezovic that he
was going to record the meeting. (Id. at ~ 167.) Elezovic asked Plaintiff to turn off his recording
device. (Id. at iJ 168.) Plaintiff refused, stating, "'It's part of my attorney's advice, every meeting
I have with you I must record." (Id. at
170.) Again, Elezovic asked Plaintiff to turn off the
The parties also dispute the veracity and authenticity of Elezovic' s May 2013 write-up because Plaintiff
had never seen the document prior to his deposition.
device and then asked Sikorski to explain to Plaintiff that if Plaintiff failed to cooperate with
Elezovic's directive, Plaintiff would be fired. (Id. at
171.) Sikorski told Plaintiff, outside
Elezovic's office, to cooperate, but Plaintiff refused to do so. (Id. at ~if 172-73.) Plaintiff returned
to Elezovic's office, turned on the device, and refused to turn it off after Elezovic asked twice
174.) Elezovic then terminated Plaintiff. (Id.
175.) Until his termination,
Plaintiff was the highest paid non-supervisory employee in the Housekeeping Department. (Defs.'
56.1 Stmt., at if 90.)
II. PROCEDURAL HISTORY
In Plaintiff's April 16, 2013 intake questionnaire filed with the New York City office of
the EEOC, he complained of discrimination by "Thro gs Neck Extended Care Facility." (Defs.'
56.1 Stmt., at~~ 22-23, 27.) The questionnaire did not name SentosaCare, Throgs Neck Operating
Company, or Confidence Management Systems, LLC as employers. (See id.
Although Plaintiff did not file a formal discrimination charge, the EEOC construed the
questionnaire as such when it notified the Facility of the discrimination charge on April 17, 2013.
(Chaiet Aff. in Supp. of Mot. for Summ. J. ("Chaiet Aff."), (ECF No. 42),
9; Chaiet Aff., Ex.
J, (ECF No. 43)). The Facility was the only Defendant to receive formal copies of these documents
until after the instant action was filed. (Defs.' 56.1 Stmt.,
23, 26, 29.)
On April 18, 2013, the EEOC issued Plaintiff a Dismissal and Notice of Rights stating,
"[b ]ased upon its investigation, the EEOC [wa]s unable to conclude that the information obtained
establishes violations of the statutes." (Id.
31-32.) After obtaining counsel on June 7, 2013,
Plaintiff requested that the EEOC reconsider its decision, and the EEOC again found "no indication
that, upon further investigation, the Commission would conclude that discrimination had
Plaintiff commenced this action on June 26, 2013, within ninety days of his receipt of the
April 18 letter, (see Compl., (ECF No. 1)), alleging employment discrimination, retaliation, and
emotional distress perpetrated by Sentosacare, LLC, "Throgs Neck Extended Care Facility a/k/a
Throgs Neck Extended Care Facility Family and Friends Association, Inc.," Throgs Neck
Operating Company, LLC, Elezovic, and Gardner. (Compl., at
On October 10, 2013,
Plaintiff filed an Amended and "Supplemental" Verified Complaint, adding Defendant Confidence
Management Services, LLC. (See Am. Compl., at iii! 12-16.)
III. LEGAL STANDARD
Summary judgment is appropriate where the record establishes that there is no "genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56( a). A genuine dispute exists "if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court "is not to weigh the evidence but is instead required to view the evidence in the light
most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor
of that party, and to eschew credibility assessments." Weyant v. Okst, 101 F.3d 845, 854 (2d Cir.
1996); Mormol v. Costco Wholesale Corp., 364 F.3d 54, 56 (2d Cir. 2004).
To defeat a motion for summary judgment, the nonmoving party must provide "hard
evidence," D'Amico v. City of NY, 132 F.3d 145, 149 (2d Cir. 1998), "from which a reasonable
inference in [its] favor may be drawn," Binder & Binder PC v. Barnhart, 481 F.3d 141, 148 (2d
Cir. 2007) (internal quotation marks omitted). "To satisfy Rule 56( e), affidavits must be based
upon 'concrete particulars,' not conclusory allegations. To the extent that these affidavits contain
bald assertions and legal conclusions-for example, that [a co-worker] 'was always making racial
slurs about minorities,' and that [the plaintiff] 'was working in a hostile or abusive working
environment'-the district court [can] properly refuse to rely on them." Schwapp v. Town of
Avon, 118 F.3d 106, 111 (2d Cir. 1997) (citations omitted); see Hicks v. Baines, 593 F.3d 159, 167
(2d Cir. 201 O); Fletcher v. Atex, Inc., 68 F .3d 1451, 1456 (2d Cir. 1995).
IV. PROPER DEFENDANTS TO THIS ACTION 3
Defendants argue that this Court should dismiss Plaintiff's Title VII claims against
Defendants Sentosacare and Confidence Management because they were not Plaintiff's employer.
(See Mem. at 19 (citing Defs.' Rule 56. 1 Statement, at~~ 2-21).) Plaintiff was undisputedly hired
by the Facility defendant, which has been owned and run by the Operating Company defendant
since 2004. (Defs.' 56.1 Stmt., at il~ 38-39.) Plaintiff is not on SentosaCare or Confidence
Management's payrolls. (Id.)
Generally, an employer-employee relationship exists for Title VII purposes when a
plaintiff appears on the employer's payroll (the "payroll method"). See Walters v. Metro. Educ.
Enters., Inc., 519 U.S. 202, 206 (1997). However, courts in this Circuit have recognized two
exceptions to the payroll method. First, the joint employer doctrine allows a formal employee of
one entity to impose liability for violations of employment law on another legal entity when the
Defendants argue that Elezovic and Gardner are not proper parties, (see Mem. at 18), to this lawsuit
because Title VII does not provide for causes of action based on supervisory liability. See Marmol v. Costco
Wholesale Corp., 364 F.3d 54, 59 (2d Cir. 2004) (holding that the District Court properly dismissed
plaintiff's Title VII claim against an individual supervisor) (citing Gregory v. Daly, 243 F.3d 687, 689 n. I
(2d Cir. 2001 )). Plaintiff withdrew claims against Elezovic and Gardner as individuals at oral argument.
(Tr., at 14:14-18.)
Defendants also raise this argument as to Throgs Neck Extended Care Facility Family and Friends
Association. (See Mem. at 3, 19.) Outside of one mention in the Amended Complaint, (Am. Comp!., at 'I]
6), Plaintiff makes no arguments or provides any evidence regarding this entity, and the record establishes
that the Facility has never been known as "Throgs Neck Extended Care Family and Friends Association"
("the Association"). (Defs.' 56.1 Stmt., 'l]'IJ 2-6.) Plaintiff also conceded at oral argument the Association
is not a proper defendant. (Tr., at 2: 1 1-18.)
entities "handle certain aspects of their employer-employee relationship jointly." Echevarria v.
Insight Med., P.C, 72 F. Supp. 3d 442, 459 (S.D.N.Y. 2014) (internal quotation marks omitted),
and "the joint employer knew or should have known of the [discriminatory] conduct and failed to
take corrective measures within its control." Lima v. Addeco, 634 F. Supp. 2d 394, 400 (S.D.N.Y.
2009), aff'd sub nom, Lima v. Adecco &/or Platform Learning, Inc., 375 F. App'x 54 (2d Cir.
2010); see also Coleman v. Nonni 's Foods, LLC, No. 15 CV 2791, 2015 WL 8773467, at *4
(S.D.N.Y. Dec. 14, 2015).
The second exception, the single employer or integrated employer doctrine, applies when
a plaintiff demonstrates a sufficient interrelationship between the immediate corporate employer
and the affiliated corporation to justify liability. Echevarria, 72 F. Supp. 3d at 458 (internal
This Circuit considers four factors: "(1) interrelation of operations, (2)
centralized control of labor relations, (3) common management, and (4) common ownership or
financial support." Lima, 634 F. Supp. 2d at 400 (internal quotation marks omitted); see also Cook
v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240--41 (2d Cir. 1995) (adopting four-factor test).
The four-factor test may be satisfied by showing "an amount of participation [that] is sufficient
and necessary to the total employment process, even absent total control or ultimate authority over
hiring decisions." Cook, 69 F.3d 1241 (citation and internal quotations omitted).
Plaintiff conclusorily argues that SentosaCare and Confidence Management are
"intertwined by agreement, by ownership, and by management, in making, implementing, and
overseeing compliance with Title VII" with the Facility, and therefore should be held liable for the
Facility's actions. (Opp'n at 3-4 (citing Philipson Aff., (ECF No. 37), at iii! 2, 5-6)).
A reasonable jury, could not find, under either exception, that Confidence Management
had any control over the terms and conditions of Plaintiffs employment. See Cook, 69 F.3d at
1240. While Confidence Management provides training to the Facility's management and staff
regarding government compliance, and had Defendant Gardner on its payroll for the time Plaintiff
worked at the Facility, (Opp'n at 5), Plaintiff has presented no other evidence showing interrelation
of operations, centralized control of labor relations, common management, and common
ownership or financial support. See Lima, 634 F. Supp. 2d at 402.
The Facility's relationship with SentosaCare is closer than its relationship with Confidence
Management. However, Plaintiff still has not demonstrated a sufficient degree of interrelatedness
under either theory of joint liability. First, Plaintiff fails his evidentiary burden as to the joint
employer test because he has provided no evidence to show that Bent Philipson, managing partner
of the Facility, Jeff Goldstein, the SentosaCare management consultant who helped hire Bonura,
or any other SentosaCare personnel "knew or should have known of the [discriminatory] conduct
and failed to take corrective measures within its control." See Lima, 634 F. Supp. 2d at 399
(internal citation omitted). Second, as to the integrated employer test, only one of the Cook factors
tips in Plaintiffs favor: Philipson owns 22.5% of the Operating Company and 50% of
SentosaCare, (Defs.' 56. l Stmt., at~~ 11-13), demonstrating a degree of common ownership (the
fourth factor). See Lima, 634 F. Supp. 2d at 400 (internal citations omitted). The degree of
interrelation of operations and common management-the first and third Cook factors-that
Plaintiff has demonstrated, however, is insufficient to conclude that SentosaCare and the Facility
are integrated with regard to Plaintiff's employment. See Lima, 634 F. Supp. 2d at 400 (internal
citations omitted). SentosaCare appears to have played a role in hiring Jody Bonura and Paul
Gelaj. (See Sept. 9, 2014 Bonura Depo., (ECF No. 75-1 ), at 10: 13-12: 16, 92: 13-93-5; Bonura Aff.,
(ECF No. 40),
2-4.) But, the focus of these theories of joint liability is on how SentosaCare
affected Plaintiff's employment-not on whether SentosaCare merely participated in the Facility's
hiring of Elezovic, who later terminated Plaintiff. See Lima, 634 F. Supp. 2d at 401. SentosaCare
did not contract Plaintiff's employment to the Facility or vice versa. (See Tr. at 7:21-9:11.) 5
SentosaCare's contract with the Facility provides that "[t]he Facility shall direct and supervise, in
its sole discretion, all personnel of the Facility," including Plaintiff. (See Philipson Aff., Ex. B, at
6.) Pursuant to that same contract, "[t]he Facility retain[ed] direct, independent authority over the
appointment and/or dismissal, in its sole discretion, of the Facility's personnel." (See id. at 7.)
Even when viewed in the light most favorable to Plaintiff, SentosaCare's relationship is too
attenuated to create a genuine issue of material fact at trial.
Defendants SentosaCare and Confidence Management are therefore improper parties to
this action. 6
V. TITLE VII CLAIMS
Title VII of the Civil Rights Act of 1964 forbids employment discrimination against any
individual based on that individual's "race, color, religion, sex, or national origin." Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 56 (2006) (citing 42 U.S.C. § 2000e-2(a)). A
plaintiff may base a discrimination claim on two types of prohibited acts: (1) the employer's
disparate treatment, or 2) the employer's maintenance of a hostile work environment. See
Plaintiffs counsel conceded as much at the oral argument:
The Court: [D]oes your client have any direct relationship with any other entity other than Throgs
Neck Extended Care Facility? Do you have any other relationship other than through his
employment with Throgs Neck Extended Care Facility?
Ms. Vale: Other than his employment, no.
(Tr., at 9:6-11.)
Defendants also contend that Plaintiff did not name Defendants SentosaCare or Confidence Management
in his EEOC charge, thereby failing to provide notice, serve Defendants, and exhaust his administrative
remedies as to those Defendants. (See Mem. at 20.)
Littlejohn, v. City of New York, 795 F.3d 297, 312, 320 (2d Cir. 2015). Title VII also provides
that an employer may not retaliate against or punish an employee's opposition to employment
discrimination. See Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2525 (2013) (citing
Title VII, § 2000e-3(a)).
As an initial matter, Defendants argue that any incidents on which Plaintiff bases his Title
VII claims occurring before June 20, 2012, are time-barred by the three-hundred-day statute of
limitations for filing discrimination complaints with the EEOC. (See Mem. at 9, 13, 19-20.) In
Title VII actions, a plaintiff may sue in federal court only after filing timely administrative charges
with the EEOC and receiving a right-to-sue letter. See 42 U.S.C. § 2000e-5(f)(l); Holowecki v.
Fed. Express Corp., 440 F.3d 558, 562-63 (2d Cir. 2006). To be timely, a Title VII plaintiff must
file charges within three-hundred days of the occurrence of the allegedly discriminatory action. 42
U.S.C. § 2000e-5(e)(l); Nat 'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); see also
Weiss v. Morgan Stanley Inv. Mgmt., No. 05 CV 3310, 2008 WL 821813, at *4 (S.D.N.Y. Mar.
27, 2008), aff'd, 345 F. App'x 713 (2d Cir. 2009). In this case, Plaintiff submitted his intake
questionnaire to the EEOC on April 16, 2013 and received his right-to-sue letter on April 18, 2013.
(Defs.' 56.1 Stmt., at ,-i,-i 22-24, 31.) The relevant period for Plaintiffs actionable Title VII claims
therefore began on June 20, 2012, three hundred days prior to Plaintiff filing his EEOC charge.
See 42 U.S.C. § 2000e-5(e)(l).
Discrete discriminatory or retaliatory acts that occur prior to the three-hundred day period
are not actionable under Title VII even if they relate to other timely filed charges. See Morgan,
536 U.S. at 113; see also Chin v. Port Auth. of NY & NJ, 685 F.3d 135, 157 (2d Cir. 2012)
(holding the same).
However, time-barred incidents '"may constitute relevant background
evidence in a proceeding in which the status of a current practice is at issue,"' Morgan, 536 U.S.
at 112 (quoting United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977)).
Plaintiff contends that claims relating to incidents occurring prior to June 20, 2012 are
preserved by the continuing violation doctrine, and therefore should not be time-barred. (See
Opp'n at 10.) "[A] plaintiff who files a timely EEOC charge about a particular discriminatory act
committed in furtherance of an ongoing policy of discrimination extends the limitations period for
all claims of discriminatory acts committed under that policy even if those acts, standing alone,
would have been barred by the statute of limitations." Lightfoot v. Union Carbide Corp., 110 F.3d
898, 907 (2d Cir. 1997) (internal citations omitted). However, "[a]s a general rule, courts in the
Second Circuit have viewed continuing violation arguments with disfavor." Bernstein v. The
MONY Grp., Inc., 228 F. Supp. 2d 415, 418 (S.D.N.Y. 2002) (quoting Curtis v. Airborne Freight
Corp., 87 F. Supp. 2d 234, 244 (S.D.N.Y. 2000) (internal citation and quotation marks omitted)).
Plaintiff presents no evidence of specific ongoing policies or practices of discrimination or
retaliation, such as discriminatory seniority lists or employment tests. See Lightfoot, 110 F.3d at
907. Here, Plaintiff merely offers conclusory statements that "discrimination has been pervasive,
and continuous at the facility from 2008 through current, through nepotism, cronyism, and their
ally [sic] -disparate treatment." (See Opp'n at 10.) Thus, Plaintiffs claims of discrimination or
retaliation arising from incidents occurring prior to June 20, 2012 are time-barred.
To determine the timeliness of hostile work environment claims, the Second Circuit
employs a different test set forth in McGullam v. Cedar Graphics, Inc., 609 F.3d 70 (2d Cir.
2010), because, in direct contrast to discrete acts, hostile work environments occur over a series
of days or even years. See Morgan, 536 U.S. at 115 (internal quotation marks omitted). Courts
should determine (1) whether the plaintiff alleged any discriminatory act within the limitations
period, and (2) whether the acts that took place within the limitations period "were sufficiently
related to" acts outside of the limitations period "to be part of the same alleged hostile work
environment practice." McGullam, 609 F.3d at 76-77.
Within the limitations period, Plaintiff points to incidents starting in February 2013 that
he claims contributed to a hostile work environment. Plaintiff states Gardner falsely accused
him of breaking equipment on February 11 and March 12, and Elezovic increased Plaintiff's
workload and required him, and only him, to document his hourly activities starting on April 15.
(Defs.' 56.1 Stmt., at iii! 130-35, 144-46). For continuing violation purposes, Plaintiff's
December 2008 transfer to Housekeeping by Gjelaj, the May 2010 disagreement between
Plaintiff and Gardner that resulted in Plaintiff being escorted from the Facility and suspended for
half a day, the "floater" offer from Elezovic in August 2011, and Elezovic' s October 2011
accusation that Plaintiff tampered with the posted work schedule, are not sufficiently related to
the timely incidents to make them part of the same hostile work environment to bring the older
incidents within the statute of limitations. See McGullam, 609 F.3d at 77. The only relationship
between the timely and untimely incidents is that Elezovic was the adversarial party in most of
the incidents. The intervening gap of almost a year and a half (October 25, 2011 until February
11, 2013) between the last untimely incident and the first timely incident is too lengthy to find
that that all of these incidents are part of one continuing violation, such as to withstand the time
bar. Accordingly, the incidents occurring prior to June 20, 2012 are not justiciable for purposes
of analyzing Plaintiff's hostile work environment claim.
A. RACIAL AND NATIONAL ORIGIN DISPARATE TREATMENT
Courts analyze disparate treatment claims using the three-part burden-shifting framework
set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Littlejohn, 795 F.3d at
312. To defeat a motion for summary judgment under this framework, a plaintiff must establish a
prima facie case of discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993).
Accordingly, a plaintiff must show (1) membership in a protected class, (2) qualification for the
position he held, (3) an adverse employment action, and (4) that the adverse employment action
occurred under circumstances that give rise to an inference of discrimination. Littlejohn, 795 F.3d
at 312. A plaintiffs burden at this stage is de minimis. Tomassi v. Insignia Fin. Grp., Inc., 478
F.3d 111, 114 (2d Cir. 2007).
If a plaintiff establishes a prima facie case, the defendant must articulate a legitimate,
nondiscriminatory reason for the adverse employment action. Feingold v. N. Y, 366 F.3d 138, 157
(2d Cir. 2004) (citation omitted).
While an employer "must clearly set forth, through the
introduction of admissible evidence, the reasons for the plaintiffs [adverse employment action],"
the employer "need not persuade the court that it was actually motivated by the proffered reasons."
Tex. Dep 't ofCmty. Affairs v. Burdine, 450 U.S. 248, 254-255 (1981).
If the defendant articulates a legitimate, non-discriminatory business justification for the
adverse employment action, "the presumption of ... discrimination dissolves, and the burden shifts
back to the plaintiff' who must prove that the employer's stated reasons are mere pretext for a
discriminatory motive. Weiss, 2008 WL 821813, at *4. To defeat a motion for summary judgment,
"[i]t is not enough ... to disbelieve the employer; the fact[-]finder must [also] believe the plaintiffs
explanation of intentional discrimination." Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.
2000) (internal quotation marks omitted).
The parties do not dispute two of the four elements of a prima facie case: whether Plaintiff
belongs to a protected class, as Plaintiff is Guyanese of Indian descent, and whether he was
qualified for the position he held. See Ruiz v. Cnty. Of Rockland, 609 F.3d 486, 491-92 (2d Cir.
2010). However, Plaintiff has not demonstrated that the circumstances surrounding the allegedly
adverse employment actions raise an inference of discrimination.
An adverse employment action is "more disruptive than a mere inconvenience or an
alteration of job responsibilities." Littlejohn, 795 F.3d at 312 n. l 0 (internal quotation marks
Rather, it is "a materially significant disadvantage" with respect to the terms and
conditions of a plaintiffs employment, Williams v. R.H Donnelley, Corp., 368 F.3d 123, 128 (2d
Cir. 2004 ), such as termination, demotion, "a less distinguished title, a material loss of benefits,
lor] significantly diminished material responsibilities." Kessler v. Westchester Cty. Dep 't of Soc.
Servs., 461F.3d199, 204 (2d Cir. 2006) (citing Williams, 368 F.3d at 128).
Plaintiffs first timely incident was being accused of breaking a vacuum in February 2013.
(Defs.' 56.1 Stmt., at ii 131.) Gardner similarly accused Plaintiff in March of 2013 of breaking a
hand sanitizer. (Pl.'s Aff., at ii 80; Defs.' 56.1 Stmt., at iiii 136-38.) The parties do not dispute that
Plaintiff was not disciplined in response to either incident. (Defs.' 56.1 Stmt., at iiii 131-32, 138.)
Plaintiff also complains that on April 15, 2013, Elezovic forced him to keep an hourly log of his
activities and that his workload increased after Plaintiff refused Elezovic' s request to clean the
Facility's conference room. (See Pl. 's 56.1 Stmt., at
iiii 143-44; Defs.' 56.1 Stmt., at iiii 144-46
(citing Pl.'s Dep., (ECF No. 45), at 204:20-205:25; 206:3-22).) Two weeks later, on April 29,
Elezovic denied a month-long vacation request Plaintiff had previously submitted on April 15.
(Defs.' 56.1 Stmt., at ii 154; Pl.'s Dep., (ECF No. 71), at 284:10-25.) Also on April 29, Elezovic
yelled at Plaintiff and issued a written warning when Plaintiff was in the doorway of the Facility's
laundry room to give his wife his paycheck. (Pl.'s Aff., at
ii 112.) On May 8, Elezovic issued
another written warning for having a non-work-related conversation with another employee in the
copy room, (see Bonura Aff, Ex. F), a written warning which, at his deposition, Plaintiff attested
he had never seen before. (Pl.'s Dep., (ECF No. 71), at 328:8-12.)7
This Circuit does not recognize the incidents, however unpleasant, occurring prior to
Plaintiff's July 29 termination as adverse employment actions. See Figueroa v. City of N. Y, 198
F. Supp. 2d 555, 568 (S.D.N.Y. 2002) ("While adverse employment actions extend beyond readily
quantifiable losses, 'not everything that makes an employee unhappy is an actionable adverse
action.'") (quoting Phillips v. Bowen, 278 F.3d 103, 117 (2d Cir. 2002)).
regarding the broken vacuum and hand sanitizer dispenser, for which Plaintiff received no
disciplinary action, do not constitute adverse employment actions. See Hawana v. City of N. Y,
230 F. Supp. 2d 518, 528 (S.D.N.Y. 2002) ("Negative evaluations can be adverse employment
actions only if they give rise to material adverse changes in work conditions.") (citing Figueroa,
198 F. Supp. 2d at 568). Similarly, the written warnings Plaintiff received on April 29 and May 8
for allegedly shirking his duties, which Plaintiff does not contend were accompanied by changes
to his employment, cannot amount to adverse employment actions. See id; Boyd v. Presbyterian
Hosp. in City of N. Y, 160 F. Supp. 2d 522, 537 (S.D.N.Y. 2001) ("To the extent that Plaintiff
argues [his supervisor] wrongfully included incidents and errors on Plaintiff's performance
evaluations that never took place, these alleged actions do not constitute an adverse employment
action."). The denial of Plaintiffs initial vacation request, which only occurred once, is also not
Defendants note that Plaintiff does not argue that racial discrimination was a reason for his July 29, 2013
termination. He only argues retaliation. (See Defs.' Mem. at 12; Pl.'s Opp'n, at 19 ("Retaliation was
swift and strong. From increased work-load [sic], to stalking, to accusations, to denial of vacation time,
to [Plaintiffs] termination on July 30 [sic], 2013."); Pl.'s Aff., at iJ 117 ("The firing for insubordination
was nothing more than a pre-text [sic] to retaliate against me for my complaint to the EEOC.").)
an adverse employment action. Boyd, 160 F. Supp. 2d at 53 7 (finding that denial of vacation
request is not cognizable adverse employment action).
As Plaintiff has failed to establish the third prong of his prima facie case of discrimination
under Title VII, Defendants' motion for summary judgment as to this claim is GRANTED. 8
VI. HOSTILE WORK ENVIRONMENT CLAIM
To prevail on a hostile work environment claim, a plaintiff must demonstrate that "the
workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim's employment and create an abusive
working environment." Littlejohn, 795 F.3d at 320-21 (citing Harris, 510 U.S. at 21). A
plaintiff must also show "that a specific basis exists for imputing the conduct that created the
hostile environment to the employer," Schwapp, 118 F.3d at 110 (internal quotation marks and
alterations omitted), and that the conduct occurred because of his membership in a protected
class. Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002). "Title VII does not prohibit
employers from maintaining nasty, unpleasant workplaces .... " Krasner v. HSH Nordbank
A.G., 680 F. Supp. 2d 502, 513 (S.D.N.Y. 2010), and "simple teasing, offhand comments, and
isolated incidents (unless extremely serious) will not amount to discriminatory changes in the
terms and conditions of employment." Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998) (internal citations and quotations omitted).
Defendants correctly argue that Plaintiff's evidence regarding his supervisors'
unprofessional behavior does not demonstrate an actionable hostile work environment. (Mem. at
Even if this Court were to find that Plaintiff had established the first three elements of a prima facie case of
disparate treatment, Plaintiff has not demonstrated circumstances giving rise to an inference of discrimination. The
record establishes that the Facility employs other Guyanese workers of Indian descent, including Plaintiffs wife and
other family members, who continued to work at the Facility after Plaintiffs termination. (See Defs.' 56.1 Stmt., at
~~ 89, 92-99.)
13.) Plaintiff has not shown any admissible evidence that Elezovic or Gardner had a pattern of
activities specifically motivated by animus towards Guyanese of Indians descent. See Alfano,
294 F.3d at 374; (Tr. at 57: 19-59:2). Plaintiff's sole "smoking gun" incident, in which Elezovic
accused him of tampering with the posted work schedule and yelled "You people lare] only here
to make trouble," 9 (Defs.' 56.1 Stmt., at~ 105), is far from the "steady barrage of opprobrious
racial comments" or extremely serious isolated incidents that are actionable under Title VII. See
Schwapp, 118 F.3d at 110-11 (citation omitted). It is also time-barred. A(fano, 294 F.3d at 372.
Plaintiff also contends that Elezovic' s practice of hiring his relatives, all of Albanian or
Montenegrin descent, shows that he discriminated against Guyanese of Indian descent, as well as
non-Indians of Guyanese descent who are not Albanian or Montenegrin. (Tr. at 57:24-58-1.)
Nepotism, in this case, is not evidence of actionable discrimination because showing a
preference for one's family members, to the detriment of several other races or nationalities, does
not amount to disparate treatment against a protected class. See Attenborough v. Constr. & Gen.
Bldg. Laborers' Local 79, 691 F. Supp. 2d 372, 384 (S.D.N.Y. 2009) (finding evidence of
nepotism and cronyism insufficient to show that defendant's practices "actually caused disparate
impact on minority union members"); Rebele v. Potter, 818 F. Supp. 2d 534, 538 (E.D.N.Y.
2011) ("Pernicious though [nepotism] is, it does not constitute a form of discrimination under
Title VII."). Having failed to show a sufficient frequency of events motivated by racial animus
towards Plaintiff, Defendants' motion for summary judgment on this claim is GRANTED.
At Elezovic 's deposition, neither party asked Elezovic if he was referring to Indians or persons of
Guyanese descent when he made that statement. (See Elezovic Dep., (ECF No. 46), Ex. P; Elezovic Dep.,
(ECF 81-2), Ex. 4.)
VII. RETALIATION CLAIMS
Section 704(a) of Title VII prohibits an employer from retaliating against employees for
opposing any practice that violates Title VII. See Littlejohn, 795 F.3d at 315 (quoting 42 U.S.C.
§ 2000e-3(a)). Retaliation claims, like disparate treatment claims, are analyzed using the three-
part test outlined in McDonnell-Douglas. See id. To demonstrate a prima facie case ofretaliation,
"a plaintiff must submit sufficient admissible evidence to allow a trier of fact to find: (i) conduct
by the plaintiff that is protected activity under Title VII; (ii) of which the employer was aware;
(iii) followed by an adverse employment action of a nature that would deter a reasonable employee
from making or supporting a discrimination claim; (iv) that was causally connected to the protected
activity." Cox v. Onondaga Cty. Sheriff's Dep 't, 760 F.3d 139, 145 (2d Cir. 2014) (internal citation
Once a plaintiff establishes a prima facie case, the burden of production shifts to the
employer to put forth evidence of a non-retaliatory rationale for the adverse action. See id (citing
Holt v. KMI-Continental, 95 F.3d 123, 130 (2d Cir. 1996)). Once the defendant has done so, the
plaintiff may prevail by demonstrating that the stated rationale is pretextual. Jute v. Hamilton
Sundstrand Corp., 420 F.3d 166, 173, 179-80 (2d Cir. 2005). The employee at all times bears the
burden of persuasion to show a retaliatory motive. Cosgrove v. Sears, Roebuck & Co., 9 F.3d
1033, 1039 (2d Cir. 1993).
1. Protected Activity About Which Defendants Were Aware
''Protected activity" under Title VII refers to a plaintiff's action "taken to protest or
oppose statutorily prohibited discrimination." Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d
Cir. 2000) (citing 42 U.S.C. § 2000e-3), superseded on other grounds by N.Y.C. Local L. No.
85. Opposition need not be formal to receive statutory protection and includes such informal
protests as "making complaints to management, writing critical letters to customers, protesting
against discrimination by industry or by society in general, and expressing support of co-workers
who have filed formal charges." Littlejohn, 795 F.3d at 317 (quoting Sumner v. US Postal
Serv., 899 F.2d 203, 209 (2d Cir. 1990)). For an employee's opposition to be protected, it must
relate to the defendant's alleged violations of Title VII such as race, gender, or other prohibited
discrimination or the creation of a hostile work environment on the basis thereof. See id.
Many of the operative facts on which Plaintiff bases his retaliation claim are the same
ones on which he bases his disparate treatment claims, and are subject to the same time bar
excluding incidents prior to June 20, 2012. On March 14, 2013, Gardner took Plaintiff's wife to
a restroom and asked her to tell Plaintiff he had to clean the mildew there even though Plaintiff is
not normally responsible for that task. (Pl.' s Aff.,
81-84.) Plaintiff reported Gardner to
Stevenson and Bonura, for the March 14 incident. (Id.) On March 28, Gardner told Plaintiff he
could no longer sign for his wife's check because Plaintiff had reported him to Stevenson. (Id)
Plaintiff offers no admissible evidence that his March 2013 complaint to Stevenson and
Bonura protested discrete acts of race or national origin-based discrimination or a hostile work
environment caused by such discrimination. (Compare Am. Comp!.,
102; Pl.' s Aff.,
with Defs.' Reply, Ex. E, at 5.) Thus, the March 2013 internal complaint does not constitute
protected activity cognizable by Title VII. See Littlejohn, 795 F.3d at 317.
Around April 15, Plaintiff filed an undated union grievance complaining about increases
in his workload and being made to document his hourly activities for Elezovic. (See Opp'n, Ex. 6
at 2.) Plaintiff's union grievance also fails to mention any type of activity on the part of Defendants
motivated by racial or similar animus. (See id) Viewing Plaintiff's time-barred May 2010 union
grievance as permissible background evidence regarding a discriminatory policy does not help
Plaintiff either, as that grievance does not protest specific acts or policies of impermissible racial
discrimination. (See id., at 1.) Rather, Plaintiffs union grievance protests being escorted from the
building by security after confronting his supervisors for their rudeness and "harassment," which
Plaintiff believed was a form of revenge motivated by his complaints to Bonura about his revised
work schedule and increase in workload. (See id.) Thus, Plaintiff has not provided sufficient
admissible evidence that would enable a reasonable jury to find that the April 2013 union grievance
constituted a protected activity. See Littlejohn, 795 F.3d at 317.
Plaintiffs April 16, 2013 EEOC intake questionnaire alleging racial and national origin
discrimination constitutes protected activity sufficient to demonstrate the first prong of a prima
facie case. See Raniola v. Bratton, 243 F .3d 610, 624-25 (2d Cir. 2001 ). Furthermore, Defendants
received notice of the charge of discrimination around April 17, satisfying the second element of
a prima facie case of retaliation. See Cox, 760 F.3d at 145.
2. Adverse Employment Action
In the retaliation context, this Circuit defines "adverse employment action" more broadly
than in the discrimination context. See Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010) (citing
Kessler, 461 F.3d at 207); Paul v. Postgraduate Ctr.for Mental Health, 97 F. Supp. 3d 141, 196
(E.D.N.Y. 2015). Materially adverse actions for the purposes ofaprimafacie retaliation case are
those that are "harmful to the point that they could well dissuade a reasonable worker from making
or supporting a charge of discrimination." Hicks, 593 F.3d at 162.
The parties do not dispute that Plaintiffs termination on July 29, 2013 constituted an
adverse employment action. (Defs.' 56.1 Stmt., at~~ 164-175.) They do, however, disagree about
the incidents occurring between the April 15 filing of the intake questionnaire and Plaintiffs
termination. Even in light of the lower threshold, much of the conduct Plaintiff contends are
retaliatory adverse employment actions are objectively too trivial to dissuade a reasonable
employee from making or supporting a charge of discrimination. See White, 548 U.S. at 68. For
example, "petty slights, minor annoyances, and simple lack of good manners will not create such
deterrence." Id. Elezovic's April 29 denial of Plaintiff's vacation request and written warning,
and his May 8 written warning to Plaintiff, (Bonura Aff., Ex. E-F), (Defs.' 56.1 Stmt.,
are too trivial deter a reasonable employee from speaking out against Title VII violations. See
White, 548 at 68.; Jackson v. NYS Dep 't of Labor, 709 F. Supp. 2d 218, 228 (S.D.N.Y. 2010)
(citing Anemone v. Metro. Transp. Auth., 410 F. Supp. 2d 255, 266 (S.D.N.Y. 2006) (collecting
cases)). While the parties dispute 10 the accuracy and veracity of Elezovic's write-ups, none of the
disputes are material. Even when an accusation in a disciplinary notice is allegedly false, this
Circuit has not found such false accusations, without more, to be a cognizable retaliatory adverse
employment action. See Cody v. Cty. of Nassau, 345 F. App'x 717, 719 (2d Cir. 2009).
On the other hand, the Second Circuit has recognized that an increase in workload may
sometimes be an adverse action for the purposes of a retaliation claim if the increase is heavily
disproportionate to other employees similarly situated. See Paul, 97 F. Supp. 3d at 196 (citing
Torres v. Pisano, 116 F.3d 625, 640 (2d Cir. 1997)).
Plaintiff claims Elezovic increased his workload on April 20, after the Facility received
notice of Plaintiff's charge of discrimination. (Pl.' s Aff., at~ 105). Plaintiff states that Elezovic
Elezovic wrote in the April 29 disciplinary action notice that Plaintiff was in the "Label Room" "hanging
out" when he should have been working, (Bonura Aff., Ex. E), and Defendants' Rule 56.1 Statement places
the incident in "the doorway to the Facility's Laundry Room." (See iJ 148.) Plaintiff contends that he was
by the "doorway ... [of] the laundry room" only to give his wife his paycheck while on his break. (Pl.
Dep., at 207:13-18.)
and Gardner added the following on April 3, 11 prior to filing the EEOC intake questionnaire:
clearing the bushes of trash and cleaning "all the garbage pails in the lobby area and offices, a
project that had been done routinely by another employee as a special project." (Id, at~~ 84-85).
Plaintiff also states that on April 20, he suffered the same increase in workload: "[t]rash had to be
cleaned from the bushes" and he was "told [he J was to clean all the garbage pails in the lobby area
and offices, a project that had been done routinely by another employee as a special project." (Id.,
108-109; Pl.'s 56.l Stmt,
143.) Although it is a district court's duty in the context of
summary judgment to assess the facts presented in a light most favorable to the non-movant, Paul,
97 F. Supp. 3d at 178, Plaintiff cannot have had the same increase twice, if his previous workload
already included those tasks. Nonetheless, even if a reasonable jury could find that the increase
in workload occurred after the filing of the intake questionnaire, Plaintiff has not shown sufficient
evidence that his increase in workload was disproportionate to other similarly situated employees
in his department. See Feingold, 366 F.3d at 153; (see Pl.'s Aff.,
105 (stating that a Jamaican
employee had the same routine on alternating weekends); Opp'n, Ex. 18 (Plaintiffs work
Therefore, aside from his termination, Plaintiff has not sufficiently demonstrated any facts
with which a reasonable jury could conclude that the other events between April 15 and his
termination were cognizable adverse employment actions.
During his deposition, when introduced to Defendant's Exhibit 42, a copy of his new, increased
assignment dated April 5, 2013 (prior to when he filed the intake questionnaire at the EEOC), Plaintiff
stated that the exhibit showed the additional tasks he had been assigned. (See Pl. Dep., (ECF No. 45), Ex.
N, at 341.)
3. Causal Connection to Protected Activity
To support a prima facie case of retaliation, Plaintiff argues that his July 29, 2013
termination 12 was causally connected to the EEOC questionnaire he filed on April 16. (Opp'n at
19.) "[A] plaintiff making a retaliation claim under [Title VII] must establish that his or her
protected activity was a but-for cause of the alleged adverse action by the employer." Nassar,
133 S.Ct. at 2534. This Circuit has held that Nassar's but-for retaliation causation standard
allows a plaintiff "to demonstrate causation at the primafacie stage on summary judgment or at
trial indirectly through temporal proximity." Kwan v. Andalex Group LLC, 737 F.3d 834, 845
(2d Cir. 2013).
While about three and a half months passed between the Facility's receipt of the notice of
charge and Plaintiff's termination, periods as long as five months have been deemed sufficiently
proximate in time to allege a causal relationship for a prima facic case of retaliation. See
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010). Also, although Bonura
told Plaintiff that the Facility had received a copy of his EEOC charge and that he would receive
a hearing regarding his April 15 union grievance on April 30, 2013, the hearing never occurred.
See Eldaghar v. City of N. Y. Dep 't of Citywide Admin. Servs., No. 02 Civ. 9151, 2008 WL
2971467, at* 12-13 (S.D.N.Y. July 31, 2008) (finding evidence of procedural irregularities to
raise "genuine issues of material fact regarding ... retaliatory motivation"); (Pl.'s Aff.,
Thus, a reasonable jury could conclude that Plaintiffs termination had a causal connection to his
EEOC complaint, and that Plaintiff has established a prima facie case of retaliation.
Plaintiff also contends the disciplinary write-ups he received in late April and early May of 2013 within
two weeks of the Facility receiving notice of his charge of discrimination are causally connected.
4. Non-Retaliatory Rationale
Once an employee establishes a prima facie case, the burden of production shifts to the
employer to put forth evidence of a non-retaliatory rationale for the adverse employment action.
See Cox, 760 F.3d at 145 (citing Holt, 95 F.3d at 130).
Defendants proffer that Plaintiff was terminated for insubordination. More specifically,
Plaintiff brought a recording device to the July 29 meeting and informed Elezovic that he was
going to record the meeting. (See Defs.' 56.1 Stmt.,
167-170.) Elezovic asked Plaintiffto
turn off the device, and then asked Patricia Sikorski, a former union shop steward, to explain to
Plaintiff that if he did not follow Elezovic' s directive, he would be terminated. (Id., at ~ 171.)
Sikorski explained as much to Plaintiff, but Plaintiff insisted on recording the conversation as
advised by his attorney. (Id., at ~~ 172-73.) Elezovic asked Plaintiff twice more to turn off the
recording device, and when Plaintiff continued to refuse, Elezovic terminated him. (Id., at ~~
Generally, insubordination and conduct that disrupts the workplace are legitimate reasons
for firing an employee. Richardson v. Comm 'non Human Rights & Opportunities, 532 F.3d
114, 125-26 (2d Cir. 2008) (affirming grant of summary judgment on retaliation claim where
district court found that Plaintiff was terminated because of insubordination and hostile
behavior). Here, Defendants presented undisputed evidence of Plaintiffs insubordination at the
July 29 meeting. (See Defs.' 56.1 Stmt.,
171-75.) Furthermore, it is also undisputed that,
as a former union shop steward himself, Plaintiff was aware that disagreeing with a workplace
directive is properly handled not with insubordination, but rather by following the directive, and
then filing a grievance later. (Id.
111-13; Mem. at 17 n.8.) Defendants have therefore
proffered a legitimate, non-retaliatory reason for terminating Plaintiff.
Once the employer has provided a legitimate non-retaliatory reason for the adverse
employment action, the employee may still prevail by demonstrating that the stated rationale is
mere pretext. Jute, 420 F.3d at 173, 179-80. The employee at all times bears the burden of
persuasion to show a retaliatory motive. Cosgrove, 9 F.3d at 1039.
Plaintiff does not dispute the facts surrounding his insubordination. (See Pl. 's 56.1 Stmt.,
167-175.) Plaintiff provides no factual evidence that Defendant's proffered reason,
insubordination, is merely a pretext for retaliation. Instead, Plaintiff provides a recitation of
incidents where Elezovic's behavior towards Plaintiff became unpleasant every time Plaintiff
complained about something. (Opp'n at 19 (citing Pl. 's Aff.,
104-117).) However, as this
Circuit has recognized, "a party cannot create a triable issue of fact merely by stating in an
affidavit the very proposition they are trying to prove." Hicks, 593 F.3d at 167. Nor does Title
VII "set forth 'a general civility code for the American workplace,"' as this Circuit has reminded
plaintiffs, time and again. See e.g., Redd v. N. Y. Div. of Parole, 678 F.3d 166, 176 (2d Cir.
2012) (quoting White, 548 U.S. at 68 (internal citation omitted)).
Plaintiff also argues that the meeting was not necessary, and therefore, pretextual.
According to Plaintiff, Elezovic could have written a note stating that Plaintiff was to stop
cleaning Bonura' s office as it contained documents concerning his EEOC complaint and this
litigation. (Tr. at 72:1-6.) Plaintiff also noted that Elezovic did not have to fire Plaintiff for
refusing to turn off the recording device, but could have declined to have the meeting. (Id. at
70:3-4.) However, "bad management is not the same thing as ... discrimination," retaliation, or
other actions prohibited by Title VII. Dobrynio v. Cent. Hudson Gas & Elec. Corp., 419 F.
Supp. 2d 557, 566 (S.D.N.Y. 2006). Furthermore, courts in this District have recognized that
disagreement with the validity of the proffered reason for an adverse employment decision "does
create a triable issue of fact." Risco v. McHugh, 868 F. Supp. 2d 75, 104 (S.D.N.Y.
2012) (quoting Fleming v. MaxMara USA, 644 F. Supp. 2d 247, 266 (E.D.N.Y. 2009)).
Without more specific evidence of a retaliatory motive, such as factual discrepancies
regarding Defendants' proffered reasons, Plaintiff has not carried his burden of production or
persuasion as to whether insubordination was merely a pretext for retaliation on this record. See
D 'Amico, 132 F .3d 149 (holding that, to show a genuine dispute of material fact, the nonmoving
party must provide "hard evidence"). Defendants' motion for summary judgment as to
Plaintiffs retaliation claim is GRANTED.
VI. EMOTIONAL DISTRESS CLAIMS
Plaintiff brings an unspecified inflicted emotional distress claim against Defendants.
(Opp 'n at 8-9.) This Court addresses both negligent and intentional theories of liability.
To prevail on a claim for negligent infliction of emotional distress, Plaintiff must show
either that 1) he suffered an emotional injury resulting from Defendants' breach of a duty that
unreasonably endangered his physical safety (the "direct duty" theory); or, 2) Defendants'
negligence threatened him with physical harm, and as a result, he suffered emotional injury from
witnessing the death or serious bodily injury of an immediate family member (the "bystander"
theory). Mortise v. U.S., 102 F.3d 693, 696 (2d Cir. 1996) ("Under New York law, a plaintiff
may establish [a claim for negligent infliction of emotional distress] in one of two ways: (1) the
'bystander' theory; or (2) the 'direct duty theory."'). With respect to Plaintiffs claims of
negligent infliction of emotional distress, Defendants correctly argue that Plaintiff has provided
no evidence Defendants threatened him with physical harm or endangered his safety in any way.
See Mortise, 102 F .3d at 696. Plaintiff is therefore unable to demonstrate a genuine issue of
material fact as to this claim.
To prevail on an intentional infliction of emotional distress claim, Plaintiff must show:
"(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability
of causing, severe emotional distress; (iii) a causal connection between the conduct and injury;
and (iv) severe emotional distress." Howell v. NY Post Co., 596 N.Y.S.2d 350, 353 (1993).
"Liability has been found only where the conduct has been so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community." Id (citations omitted); see also
Martin v. Citibank, NA., 762 F.2d 212, 220 (2d Cir. 1985) (rejecting intentional infliction of
emotional distress claim in case involving employer's alleged racial discrimination); cf
Silberstein v. Advance Magazine Publishers, Inc., 988 F. Supp. 391, 394 (S.D.N.Y. 1997) ("[I]t
seems to this Court extraordinarily unlikely that [New York courts] would allow liability for
employment discrimination on the intentional infliction theory in the face of the Legislature's
enactment of a more limited [statutory] remedy.").
Plaintiff has also failed to provide evidence that shows a genuine issue of material fact
regarding "extreme or outrageous conduct" toward him so as to be "beyond all possible bounds
of decency." See Howell, 596 N.Y.S.2d at 353. Nor is Plaintiff's submission of two doctors'
notes (dated April 18 and April 25, 2013) a sufficient factual basis for a reasonable juror to find
that Plaintiffs stress was severe enough to satisfy the second element. (See Opp'n, Ex. 8.)
Therefore, Defendants' motion for summary judgment as to Plaintiffs claims for negligent and
intentional infliction of emotional distress is GRANTED.
Defendants' motion for summary judgment is hereby GRANTED in its entirety. 13 This
Order resolves the motion at ECF No. 34.
The Clerk of the Court is directed to enter judgment accordingly and close this case.
Dated: New York, New York
March 18, 2016
To the extent that Plaintiff brings a claim under the Federal Nursing Home Reforms Act ("FNHRA"), which was
contained in the Omnibus Budget Reconciliation Act of 198, this claim is dismissed because FNHRA does not
afford litigants a private cause of action, Defendants are not state actors, and the statute benefits residents, not
employees. Baum v. Northern Dutchess Hosp., 764 F. Supp. 2d 410, 419-420, 422 n.13, 423-433 (N.D.N.Y. 2011).
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