Lugo v. Le Pain Quotidien
Filing
48
OPINION AND ORDER re: 35 MOTION for Summary Judgment . filed by Le Pain Quotidien. For the foregoing reasons, Defendant's motion for summary judgment is GRANTED, and the Complaint is dismissed in its entirety. The Clerk of Court is directed to terminate Docket No. 35, to close the case, and to mail Plaintiff a copy of this Opinion and Order. SO ORDERED. (Signed by Judge Jesse M. Furman on 4/13/2015) (ajs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- X
:
NORBERTO LUGO,
:
:
Plaintiff,
:
:
-v:
:
LE PAIN QUOTIDIEN,
:
:
Defendant.
:
:
---------------------------------------------------------------------- X
04/13/2015
13-CV-6450 (JMF)
OPINION AND ORDER
JESSE M. FURMAN, United States District Judge:
Plaintiff Norberto Lugo, proceeding pro se, sues his former employer, Defendant Le Pain
Quotidien (“LPQ”), under Title VII of the Civil Rights Act of 1964 (“Title VII”), Title 42,
United States Code, Section 2000e et seq., and the Age Discrimination in Employment Act (the
“ADEA”), Title 29, United States Code, Section 621 et seq. LPQ now moves for summary
judgment. For the reasons stated below, Defendant’s motion is granted and Plaintiff’s Complaint
is dismissed in its entirety.
BACKGROUND
When considering a motion for summary judgment, the Court views the evidence in the
light most favorable to the non-moving party. See Overton v. N.Y. State Div. of Military & Naval
Affairs, 373 F.3d 83, 89 (2d Cir. 2004). In light of this duty and mindful of the Court’s
obligation to grant “special solicitude” to pro se litigants who oppose motions for summary
judgment, Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988), the Court has considered the
evidence in the record despite Plaintiff’s failure to submit a statement pursuant to Local Civil
Rule 56.1. See Wali v. One Source Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009) (“[W]here a
pro se plaintiff fails to submit a proper Rule 56.1 statement in opposition to a summary judgment
motion, the Court retains some discretion to consider the substance of the plaintiff’s arguments,
where actually supported by evidentiary submissions.” (citing Holtz v. Rockefeller & Co., 258
F.3d 62, 73 (2d Cir. 2001))). Except where noted, the following facts are undisputed.
LPQ owns and operates a chain of “bakery-cafés.” (Decl. Leslie Ferrier (Docket No. 38)
(“Ferrier Decl.”) ¶ 3). LPQ hired Plaintiff, who is Puerto Rican, as a porter at one of its cafés in
November 2006. (Decl. Brian Noonan, Esq. (Docket Nos. 41-43) (“Noonan Decl.”), Ex. C
(“Lugo Dep.”) 16; Compl. (Docket No. 2) 4). As a porter, Plaintiff’s responsibilities included
cleaning and stocking the café, making catering deliveries, and other miscellaneous tasks. (Decl.
Mario Vasquez (Docket No. 40) (“Vasquez Decl.”) ¶¶ 4, 23; see Ferrier Decl. ¶ 5). Plaintiff’s
first several years at LPQ appear to have been positive and certainly without incident. He
received multiple raises, from $8.50 per hour to $10.25 per hour and finally to $11.00 per hour
— the upper limit for porters, making Plaintiff among the highest paid employees at his position.
(Lugo Dep. 91; Ferrier Decl. ¶¶ 17-18). In addition, Ivan Jimenez — the café’s then-general
manager, who is Dominican —gave Plaintiff at least one positive performance evaluation.
(Noonan Decl., Ex. E; Lugo Dep. 125-29; id. at 62-63, 66-67).
At some point in 2011 or 2012, however, Plaintiff started having problems with Jimenez,
and came to the conclusion that Jimenez wanted to terminate him. (Lugo Dep. 208-09; Compl.
7). In particular, Plaintiff felt that Jimenez was being “very disrespectful” and treating him as if
he was a “nobody.” (Lugo Dep. 210, 212). Around the same time, Plaintiff also noticed that his
paychecks were missing some of the tips he had received from his catering deliveries. (Id. at
252, 265-66, 427, 429). Plaintiff then complained about the missing tips as well as his problems
with Jimenez to Ryan Kilgariff, LPQ’s district manager. (Affirmation Opp’n Mot. (Docket No.
2
44) (“Lugo Affirmation”) 3; Lugo Dep. 316-18). At some point, apparently after Plaintiff’s
conversation with Kilgariff, Jimenez emailed Mario Vasquez and Mykel Gleez, the café’s
assistant managers, and instructed them to make sure that the tips were processed promptly.
(Lugo Affirmation, Ex. 2 at 7; Vasquez Decl. ¶ 2; Decl. Mykel Gleez (Docket No. 39) (“Gleez
Decl.”) ¶ 2). Following Plaintiff’s complaint to Kilgariff, LPQ started including Plaintiff’s tips
in his paychecks again — although it is unclear whether that was before or after Jimenez’s email
to Vasquez and Gleez. (Lugo Affirmation 3).
In November 2012, Plaintiff took a trip to Puerto Rico. (Lugo Dep. 12). Plaintiff
maintains that on or about November 1, 2012, he requested a week off beginning November 19th
by placing a note in an envelope on Jimenez’s door, which apparently was the standard method
by which café employees requested vacation time. (Lugo Affirmation 4; Lugo Dep. 145-46,
149-50). LPQ asserts that its employees did not receive the note. (Def. Le Pain Quotidien’s
Local R. 56.1(a) Statement Undisputed Material Facts (Docket No. 37) (“Def.’s 56.1 Statement”)
¶¶ 90, 92, 96, 101). On November 14, 2012 — the Wednesday before Plaintiff planned to leave
for Puerto Rico — Vasquez posted a preliminary schedule for the week of November 19th,
showing Plaintiff working his usual 7:30 a.m. to 2:00 p.m. shift. (Vasquez Decl. ¶¶ 14-15).
Shortly thereafter, Vasquez posted a final schedule listing the same shift for Plaintiff. (Id.).
Plaintiff never contacted Vasquez or any other member of LPQ’s management to tell them that
he could not work the hours for which he was scheduled. (Id. ¶ 16; Gleez Decl. ¶ 7).
On Saturday, November 17, 2012, another employee informed Vasquez that Plaintiff
would be away the following week. (Vasquez Decl. ¶ 17). Later that day, Vasquez called
Plaintiff on his cell phone. (Id. ¶ 18). Plaintiff, who was already in Puerto Rico at the time,
confirmed that he would not be coming to work that week. (Id.). When Plaintiff returned to
3
work on November 26, 2012, Jimenez fired him for taking an unauthorized vacation. (Noonan
Decl., Ex. F at 1; Ferrier Decl. ¶¶ 9, 12). Following his termination, Plaintiff filed a complaint
with LPQ’s human resources department, alleging that Jimenez had treated him unfairly and that
his termination was improper. (Id. ¶ 9). LPQ upheld Plaintiff’s termination after concluding that
there was no evidence to support Plaintiff’s claim that he provided the café’s management with
notice of his vacation. (Id. ¶ 11). On January 7, 2013, Plaintiff filed simultaneous complaints
with the New York State Division of Human Rights (“NYDHR”) and the Equal Employment
Opportunity Commission (“EEOC”). (Noonan Decl., Exs. I & J). The NYDHR determined that
there was no probable cause to sue. (Id., Ex. K). The EEOC also declined to bring suit on
Plaintiff’s behalf and issued Plaintiff a notice of right to sue on August 27, 2013. (Id., Ex. L).
This case followed.
LEGAL STANDARDS
Summary judgment is appropriate where the admissible evidence and the pleadings
demonstrate “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); see also Johnson v. Killian, 680 F.3d 234, 236 (2d Cir.
2012) (per curiam). A dispute over an issue of material fact qualifies as genuine 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); accord Lyons v. Lancer Ins. Co., 681 F.3d 50, 5657 (2d Cir. 2012). The movant bears the initial burden of demonstrating the absence of a
genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In cases
such as this one, in which the non-movant bears the burden of proof at trial, “the movant may
point to evidence that negates its opponent’s claims or . . . identify those portions of its
opponent’s evidence that demonstrate the absence of a genuine issue of material fact, a tactic that
4
requires identifying evidentiary insufficiency and not simply denying the opponent’s pleadings.”
Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006) (citing Celotex, 477 U.S. at 323).
As noted, the Court must construe all evidence in the light most favorable to the nonmovant, see LaBounty v. Coughlin, 137 F.3d 68, 71 (2d Cir. 1998) (citing Anderson, 477 U.S. at
247-48), which requires “drawing all reasonable inferences in [the non-movant’s] favor,”
Nicholas v. Miller, 189 F.3d 191, 193 (2d Cir. 1999) (per curiam) (internal quotation marks
omitted). To defeat a summary judgment motion, the non-movant must proffer more than a
“scintilla of evidence” in support of his version of events, Anderson, 477 U.S. at 252, and raise
more than “some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Because the non-movant here is pro se, the Court
must afford him “special solicitude” in the construction of pleadings and motions and in the
enforcement of procedural rules. See Tracy v. Freshwater, 623 F.3d 90, 100-04 (2d Cir. 2010)
(“[I]n light of the particular difficulties presented by a motion for summary judgment . . . a
district court errs by failing to advise a pro se litigant of the nature of such a motion and the
consequences of failing to respond to it properly.”). This special solicitude is not unlimited,
however, and does not “relieve [a] plaintiff of [his or her] duty to meet the requirements
necessary to defeat a motion for summary judgment.” Jorgensen v. Epic/Sony Records, 351 F.3d
46, 50 (2d Cir. 2003) (internal quotation marks omitted). Nor is “the duty to liberally construe a
[pro se] plaintiff’s [filing] . . . the equivalent of a duty to re-write it.” Geldzahler v. N.Y. Med.
Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (internal quotation marks omitted).
DISCUSSION
Plaintiff asserts claims for wrongful termination and retaliation under both Title VII and
the ADEA. All four claims are governed by the well-established burden-shifting framework
5
adopted in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Bucalo v.
Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012) (noting that the
McDonnell Douglas framework applies to discrimination and retaliation claims under Title VII
and the ADEA). Under that framework, Plaintiff must first make out a prima facie case in
support of his claim. See, e.g., Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010).
To establish a prima facie claim in support of his discrimination claims, Plaintiff must show that
he “(1) is a member of a protected class; (2) was performing his duties satisfactorily; (3) was
discharged; and that (4) his discharge occurred under circumstances giving rise to an inference of
discrimination on the basis of his membership in the protected class.” Graham v. Long Island
R.R., 230 F.3d 34, 38 (2d Cir. 2000). To establish a prima facie case in support of his retaliation
claims, Plaintiff must show (1) that he was participating in a protected activity known to his
employer; (2) that he was subject to an adverse employment action that would deter a reasonable
employee from pressing a discrimination claim; and (3) a causal connection between the
protected activity and the challenged employment action. See Cox v. Onondaga Cnty. Sheriff’s
Dep’t, 760 F.3d 139, 145 (2d Cir. 2014). “The requirements [of] establish[ing] a prima facie
case are minimal and a plaintiff’s burden is therefore not onerous.” Bucalo, 691 F.3d at 128
(internal quotation marks and citation omitted).
If the plaintiff establishes a prima facie case, “the burden then shifts to the defendant to
offer a legitimate nondiscriminatory reason for the termination.” Ruiz, 609 F.3d at 492. If the
defendant offers such a reason, the burden then shifts back to the plaintiff, who must show that
the defendant’s proffered reason was pretextual. See, e.g., Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981); Bucalo, 691 F.3d at 128-29. To do so, Plaintiff must
produce “not simply some evidence, but sufficient evidence to support a rational finding that the
6
legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely
than not discrimination was the real reason” for the challenged actions. Van Zant v. KLM Royal
Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (emphasis added) (internal quotation marks
omitted). Moreover, for a retaliation claim, a plaintiff must prove “but-for causation” — that is,
“that the unlawful retaliation would not have occurred in the absence of the alleged wrongful
action or actions of the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533
(2013). “Put slightly differently, Plaintiff must produce sufficient evidence to show that [LPQ’s]
proffered reason for his termination . . . was pretextual and that he would not have been
terminated but for his alleged complaints about discrimination.” Chukwueze v. NYCERS, No.
10-CV-8133 (JMF), 2014 WL 3702577, at *7 (S.D.N.Y. July 25, 2014).
With that introduction to the relevant standards, the Court turns first to Plaintiff’s claims
of discrimination and then to his claims of retaliation.
A.
Plaintiff’s Discrimination Claims
Plaintiff’s discrimination claims under Title VII and the ADEA fail for the simple reason
that there is no evidence to support an inference of discrimination. 1 To be sure, Plaintiff
suggests that Jimenez was hostile toward him. (Compl. 4, 7). But hostility alone is not
actionable. See, e.g., Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (noting that
“mistreatment at work . . . is actionable . . . only when it occurs because of an employee’s . . .
1
In the alternative, Plaintiff’s claims would fail at the third stage of the McDonnell
Douglas analysis for largely the same reasons. That is, LPQ has indisputably proffered a
legitimate, non-discriminatory reason for Plaintiff’s termination — namely, his unauthorized
absence from work during the week of November 19, 2012. Under McDonnell Douglas, “the
burden would thus shift back to Plaintiff, who would have to show — without the presumption
of discrimination generated by the prima facie case — that Defendant’s proffered reason is a
mere pretext for discrimination.” Chukwueze, 2014 WL 3702577, at *5 (citing Weinstock v.
Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000)). Plaintiff has failed to do so.
7
protected characteristic”); Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999) (“Title
VII is not a general civility code.” (internal quotation marks omitted)); Pacheco v.
Comprehensive Pharmacy Servs., No. 12-CV-1606 (AJN), 2013 WL 6087382, at *10 (S.D.N.Y.
Nov. 19, 2013) (stating that, without more, “rude and unprofessional conduct merely indicates
personal enmity rather than discrimination” (internal quotation marks omitted)). And Plaintiff’s
conclusory assertions aside, there is not a scintilla of evidence that Jimenez was hostile because
of Plaintiff’s race, national origin, or age. See, e.g., Holcomb v. Iona Coll., 521 F.3d 130, 137
(2d Cir. 2008) (“Even in the discrimination context . . . a plaintiff must provide more than
conclusory allegations to resist a motion for summary judgment.”); Yu v. N.Y. State Unified
Court Sys. Office of Court Admin., No. 11-CV-3226 (JMF), 2013 WL 3490780, at *5 (S.D.N.Y.
July 12, 2013) (stating that discrimination claims based solely on “personal opinion and
‘feeling’” cannot survive summary judgment).
Indeed, Plaintiff testified that the only time Jimenez even mentioned his national origin
was during their first meeting, when Jimenez asked Plaintiff where he was from. (Lugo Dep. 6970; see also id. at 330 (“Q[:] Is there anything Mr. Jimenez said that indicated that his actions
were based on your national origin? A[:] He didn’t make no statement, no.”)). Mere “curiosity
about a co-worker” and “such quotidian workplace interactions,” however, are not sufficient to
give rise to an inference of discrimination. Higgins v. NYP Holdings, Inc., 836 F. Supp. 2d 182,
191 (S.D.N.Y. 2011) (internal quotation marks omitted); see Maqsood v. Bell Sec., Inc., 249 Fed.
App’x 229, 230 (2d Cir. 2007) (summary order) (holding that sporadic comments made two
years prior to the plaintiff’s termination did not support a claim under Title VII for
discrimination). And while Plaintiff did testify that Jimenez occasionally called him “old man,”
he conceded that “it was like more of a joke,” that he himself “thought it was funny or
8
something,” and that he did not take offense to the comments. (Lugo Dep. 336-37). Given that,
and given the absence of any other evidence of discriminatory intent, such stray remarks alone
do not raise an inference of discrimination. See, e.g., Rosenfeld v. Hostos Cmty. Coll., No. 10CV-3081 (JMF), 2013 WL 1285154, at *5 (S.D.N.Y. Mar. 29, 2013) (implying that potentially
“ageist” comments that were “comical and made in the spirit of good fun” would not raise an
inference of discrimination), aff’d, 554 Fed. App’x 72 (2d Cir. 2014) (summary order). That is,
such “stray remarks, without more, and with no nexus to the adverse employment action in this
case, [do] not support . . . an inference” of discrimination. Id. (internal quotation marks omitted);
see also Danzer, 151 F.3d at 56 (“[S]tray remarks . . . without more, cannot get a discrimination
suit to a jury.” (emphasis omitted)); Deluca v. Bank of Tokyo-Mitsubishi UFJ, Ltd., No. 06-CV5474 (JGK), 2008 WL 857492, at *8 (S.D.N.Y. Mar. 31, 2008) (“[T]he comments by Mr. Baba
that the plaintiff was an ‘old man’ are too remote and disconnected from the termination to raise
an inference of discrimination.”).
Plaintiff cites several other ways in which he feels LPQ treated him unfairly — for
example, in refusing to purchase a delivery cart for him, failing to give him additional wage
increases after 2010, and failing to include his tips on some paychecks. (Compl. 4, 7). With
respect to Plaintiff’s salary, however, the evidence makes clear that Plaintiff was paid the
maximum wage for a porter and thus was not, as a matter of company policy, eligible for, much
less entitled to, additional raises. (Ferrier Decl. ¶ 18). With respect to the tips, Plaintiff himself
concedes that these tips were included in his paychecks after he brought the issue to LPQ’s
attention. (Lugo Affirmation 3). In any event, even assuming arguendo that Plaintiff was
treated unfairly in these ways, there is — again — no evidence aside from Plaintiff’s conclusory
assertions indicating that LPQ’s actions were on account of Plaintiff’s race, national origin, or
9
age. Cf. Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009) (providing examples of
how a plaintiff in a discrimination suit might raise inference of discrimination); Gaffney v. Dep’t
of Info. Tech. & Telecomms., 536 F. Supp. 2d 445, 456 (S.D.N.Y. 2008) (same). Accordingly,
no reasonable jury could conclude that LPQ’s actions, even taken together, raise an inference of
discrimination, let alone that they could support an ultimate finding of discrimination.
Plaintiff’s allegation that LPQ treated him differently than employees who were younger
or not Puerto Rican does not call for a different result. (See, e.g., Compl. 4). “A plaintiff may
support an inference of . . . discrimination by demonstrating that similarly situated employees
[outside his protected class] were treated more favorably,” but “[i]n order to make such a
showing, the plaintiff must compare [him]self to employees who are similarly situated in all
material respects.” Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999)
(emphasis added) (internal quotation marks omitted); see also Ruiz, 609 F.3d at 494 (defining
“similarly situated” to mean that there is “a reasonably close resemblance of the facts and
circumstances of plaintiff’s and comparator’s cases” (internal quotation marks omitted)). Here,
no reasonable jury could find that requirement is met. For instance, Plaintiff points to the fact
that two Dominican employees, Benjamin Roldan and Mirtha Monge, were allowed to work
overtime, when he was not. (Compl. 12; Lugo Dep. 366, 373, 377). But Roldan and Monge
were both “kitchen preps,” positions that required more skill and experience than the position
Plaintiff held. (Ferrier Decl. ¶ 10; Lugo Dep. 42; Vasquez Decl. ¶¶ 4-5). See, e.g., Cooper v.
Morgenthau, No. 99-CV-11946 (WHP), 2001 WL 868003, at *7 (S.D.N.Y. July 31, 2001)
(holding that employees were not similarly situated where they “held different positions [with
10
the employer] and did not share common job descriptions.”). 2 At bottom, there is no evidence
that Plaintiff was treated differently than any similarly situated comparator, let alone that other
employees who took unauthorized absences were treated more favorably. See, e.g., Graham,
230 F.3d at 40 (holding that to support a claim for differential treatment, plaintiffs and members
of the comparison group must have engaged in conduct of “comparable seriousness” and
received markedly different discipline).
In short, there is no evidence from which a reasonable jury could infer discrimination in
the first instance, let alone find that LPQ’s non-discriminatory reason for firing Plaintiff was a
pretext for discrimination. If anything, the evidence in the record undermines any inference that
Jimenez discriminated against Plaintiff. After all, Jimenez and Plaintiff apparently got along
well for a significant time after Jimenez became general manager of the café (see Lugo Dep. 208,
209), even giving him a positive performance review. (Noonan Decl., Ex. E; Lugo Dep. 12529). As Jimenez knew Plaintiff’s age and Puerto Rican ethnicity at the time, that tends to
undermine any inference of discrimination. See, e.g., Chukwueze, 2014 WL 3702577, at *5
(holding that an employer’s knowledge of the plaintiff’s religion for years without taking any
adverse action and “rat[ing of] [the plaintiff’s] job performance throughout that time as
consistently ‘satisfactory,’” undermined any inference of discrimination); see also, e.g., Altman
2
Plaintiff asserts that Jimenez wanted to replace him with Roldan, who is younger,
because Jimenez asked Roldan to clean the café after firing him. (Lugo Dep. 332-35; see also
Compl. 4). But there is no evidence either that Jimenez wanted Roldan to replace Plaintiff or
that Roldan was doing anything other temporarily assuming Plaintiff’s responsibilities until
Jimenez could find a full-time replacement. Moreover, Roldan himself was 43 in 2012 (Ferrier
Decl. ¶ 14: see Mem. Law Supp. Def. Le Pain Quotidien’s Mot. Summ. J. Pursuant Fed. R. Civ.
P. 56 (Docket No. 36) (“Def.’s Mem.”) 19), and thus a member of the same protected class. See,
e.g., Montanile v. Nat’l Broad. Co., 211 F. Supp. 2d 481, 487 (S.D.N.Y. 2002) (“That a plaintiff
is replaced by another in the same protected class weighs heavily against the inference that [he]
suffered discrimination.”).
11
v. New Rochelle Public Sch. Dist., No. 13-CV-3253 (NSR), 2014 WL 2809134, at *13 (S.D.N.Y.
June 19, 2014) (discussing the “same actor inference,” which applies when the same actor both
hires and fires an employee alleging discriminatory termination, on the theory that “it is suspect
to claim that the same manager who hired a person in the protected class would suddenly
develop an aversion to members of that class” (internal quotation marks omitted)). Additionally,
at the time Plaintiff was fired, there were at least four other employees, including another porter,
who were over forty years old. (Ferrier Decl. ¶ 13: see Def.’s Mem. 19). And finally, after
firing Plaintiff, Jimenez apparently hired another Puerto Rican individual to replace him.
(Vasquez Decl. ¶ 22). Together with the other evidence or lack thereof, that defeats any
inference of discrimination. See, e.g., Pearson v. Lynch, No. 10-CV-5119 (RJS), 2012 WL
983546, at *8 (S.D.N.Y. Mar. 22, 2012) (“An inference of discriminatory intent does not exist
when the plaintiff and his or her replacement are of the same protected category.”).
For the foregoing reasons, Defendant’s motion for summary judgment with respect to
Plaintiff’s discrimination claims under Title VII and the ADEA must be and is granted.
B.
Plaintiff’s Retaliation Claims
Plaintiff’s retaliation claims fail for various reasons, including the fact that there is no
evidence indicating that he engaged a protected activity known to his employer. 3 Although
3
Substantially for the reasons stated in Defendant’s brief (Def.’s Mem 20-22), Plaintiff’s
retaliation claims may also be subject to dismissal for failure to exhaust administrative remedies.
That is, although Plaintiff filed claims of discrimination with the EEOC and the NYDHR, he
does not appear to have alleged that he was subject to retaliation for engaging a protected activity
known to LPQ. (Compl. 4, 8). See, e.g., Mathirampuzha v. Potter, 548 F.3d 70, 76-78 (2d Cir.
2008) (holding that a retaliation claim was not reasonably related to an exhausted discrimination
claim where the charge described an alleged act of discrimination and did not “assert or imply a
retaliatory motive”). Nevertheless, the Court need not and does not reach the issue here, as the
exhaustion requirement is not a jurisdictional prerequisite but rather a condition precedent to
bringing a claim in federal court. See, e.g., Francis v. City of N.Y., 235 F.3d 763, 767 (2d Cir.
12
informal complaints can constitute protected activity, see, e.g., Treglia v. Town of Manlius, 313
F.3d 713, 720 n.5 (2d Cir. 2002), such complaints cannot be so vague or “generalized” that the
employer could not “reasonably have understood . . . that the plaintiff’s complaint was directed
at conduct prohibited by Title VII.” Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d
98, 108 (2d Cir. 2011) (emphasis omitted); see also, e.g., Galdieri-Ambrosini v. Nat’l Realty &
Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998) (“[I]mplicit in the requirement that the employer
have been aware of the protected activity is the requirement that it understood, or could
reasonably have understood, that the plaintiff’s opposition was directed at conduct prohibited by
Title VII.”). Moreover, the burden is on a plaintiff to show that he complained “of unfair
treatment due to his membership in a protected class” and not that he complained “merely of
unfair treatment generally.” Aspilaire v. Wyeth Pharm., Inc., 612 F. Supp. 2d 289, 308-09
(S.D.N.Y. 2009). “To the extent that an employee complains about perceived ‘unfair’ treatment
relating to job responsibility, hiring practices, or corporate policy, but fails to link the treatment
to unlawful discrimination or to his protected status, he fails to establish that he was engaged in
protected activity.” Penberg v. HealthBridge Mgmt., 823 F. Supp. 2d 166, 191 (E.D.N.Y. 2011).
In this case, the only act on Plaintiff’s part that could even remotely qualify as a protected
activity was his complaint about Jimenez to Kilgariff, LPQ’s district manager. But Plaintiff
conceded in his deposition that he did not suggest to Kilgariff that he had encountered any race
or national origin discrimination. (Lugo Dep. 417 (Q[:] Did you say anything like you felt
[Jimenez] was disrespecting you because you were Puerto Rican? A[:] No. No. No.”); id. at
339; see also Lugo Affirmation 3 (stating that Plaintiff complained to Kilgariff about the missing
2000); cf. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998) (holding that a
court may not assume subject-matter jurisdiction and resolve a case on the merits).
13
tips and that Jimenez “was treating me like I was a nobody,” but not mentioning anything about
national origin discrimination)). Similarly, Plaintiff affirmatively denied complaining to
Kilgariff that Jimenez was discriminating against him on the basis of Plaintiff’s age. (Lugo Dep.
417 (“Q[:] Did you say you felt like he was disrespecting you because you were an old man?
A[:] No.”). Given that Plaintiff failed to put LPQ on notice that he believed he was being
discriminated against on the basis of race, national origin, or age, his retaliation claims fail as a
matter of law. See, e.g., Galdieri-Ambrosini, 136 F.3d at 292 (holding that plaintiff failed to
make a prima facie case as to the protected-activity prong where “none of [plaintiff’s testimony]
suggested any complaint of . . . discrimination”); Chukwueze, 2014 WL 3702577, at *6 (granting
summary judgment where the plaintiff failed “to show that he complained, whether formally or
informally, in sufficiently specific terms so that [the defendant] was put on notice that he
believed he was being discriminated against on the basis of [a protected class]” (internal
quotation marks omitted)) Castro v. City of N.Y., 24 F. Supp. 3d 250, 269-70 (E.D.N.Y. 2014)
(dismissing a retaliation claim on the ground that while plaintiff’s statements to his employer
“may reflect plaintiff’s perception that his experiences in the Council Member’s office were
unpleasant, they cannot be understood to be statements made in an effort to oppose
discrimination” and citing cases).
CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is GRANTED,
and the Complaint is dismissed in its entirety. The Clerk of Court is directed to terminate Docket
No. 35, to close the case, and to mail Plaintiff a copy of this Opinion and Order.
SO ORDERED.
Date: April 13, 2015
New York, New York
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?