Yan v. Ziba Mode Inc. et al
Filing
33
OPINION AND ORDER re: 21 FIRST MOTION to Dismiss Amended Complaint filed by Ziba Mode Inc. IT IS HEREBY ORDERED that Plaintiff's complaint is DISMISSED. The Clerk of the Court is respectfully directed to terminate the motion pending at docket number 21 and close this case. (As further set forth in this Opinion and Order.) (Signed by Judge Richard J. Sullivan on 3/29/2016) (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
_____________________
No. 15-cv-47 (RJS)
_____________________
KWOK LEUNG YAN,
Plaintiff,
VERSUS
ZIBA MODE INC., et al.,
Defendants.
__________________
OPINION AND ORDER
March 29, 2016
__________________
RICHARD J. SULLIVAN, District Judge:
Plaintiff Kwok Leung Yan brings this
action against his former employer, a hair
salon, and its owner alleging that
Defendants discriminated against him based
on his race and national origin, created a
“hostile work environment,” and retaliated
against him when he complained of the
unlawful discrimination. Now before the
Court is Defendants’ motion to dismiss the
First Amended Complaint for failure to state
a claim. (Doc. No. 21.) For the reasons that
follow, Defendants’ motion is granted.
I. BACKGROUND
A. Facts
In July 2012, Plaintiff began working as
a hair stylist at Defendant Ziba Mode Inc.
(“Ziba”) in Manhattan, which is owned by
Defendant Alonso Salguero.1 (FAC ¶¶ 13,
19.) Plaintiff, who is Chinese, alleges that
1
The following facts are taken from the First
Amended Complaint. (Doc. No. 10 (“FAC”).) The
Court also considers arguments in Defendants’
memorandum of law (Doc. No. 24 (“Mem.”)),
Plaintiff’s opposition (Doc. No. 26 (“Opp’n”)),
Defendants’ reply (Doc. No. 27 (“Reply”)), and the
accompanying declarations (Doc. Nos. 23, 25).
Because Plaintiff may not augment his pleading
through his submissions opposing dismissal, see
Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d
Cir. 1998), the Court disregards allegations raised for
the first time in his opposition papers (see Opp’n 8–9;
Doc. No. 25-1 ¶¶ 5–7). And since the Court must
assume the First Amended Complaint’s allegations to
be true, the Court also disregards Defendants’
averments that Plaintiff performed his job
unsatisfactorily (Mem. 2) and disregards the
employee handbook introduced by Defendant (Doc.
No. 23-4), given that Defendants provide no evidence
Plaintiff relied on it in bringing suit, see Chambers v.
Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).
Salguero then angrily responded, “You
know what? This is the reason to fire
[Plaintiff] and do it right now. Okay? I
want you to fire [Plaintiff] right now and I
want you to now state that reason. We’re
not going to be intimidated, okay? And this
is not how we treat our employees so I am
not going to take that. You are fired.” (Id. ¶
32 (emphasis removed).) Plaintiff was
terminated that day. (Id. ¶¶ 38–40.)
almost immediately following his hiring,
Defendants began to treat him differently
than
his
non-Chinese
co-workers.
Specifically, Plaintiff alleges that coworkers commented on his foreign accent
and his claimed inability to communicate
with the salon’s clients. (Id. ¶¶ 21–22.)
Plaintiff further alleges that on one occasion
he was required to pay for the haircut of a
dissatisfied customer.
According to
Plaintiff, Ziba’s white employees were not
similarly forced to pay for the haircuts of
dissatisfied customers. (Id. ¶ 23.)
B. Procedural History
On July 3, 2014, nearly five months after
his termination, Plaintiff filed an
administrative complaint with the EEOC
alleging discrimination based on race and
national origin. (Id. ¶ 5.) He received a
right-to-sue letter from the EEOC on
October 8, 2014 (id. ¶ 8), and on January 6,
2015, Plaintiff commenced this action (Doc.
No. 1), bringing claims for discrimination,
hostile work environment, and retaliation in
violation of 42 U.S.C. § 1981 (“Section
1981”), Title VII of the Civil Rights Act of
1964 (42 U.S.C. § 2000e, et seq.) (“Title
VII”), the New York State Human Rights
Law (N.Y. Exec. L. § 296) (“NYSHRL”),
and the New York City Human Rights Law
(N.Y.C. Admin. Code § 8–107, et seq.)
(“NYCHRL”). In addition, Plaintiff brings a
claim for “interference with protected
rights” pursuant to NYCHRL.
On February 6, 2014, Plaintiff told
Ziba’s manager, Olivia Pezeron, that he felt
he was being discriminated against because
of his race and national origin and that he
was planning to file a complaint of
discrimination with the City of New York.
(Id. ¶ 25.) Later that day, Plaintiff had a
conversation with Pezeron and Salguero,
who participated via telephone. During that
conversation,
the
parties
discussed
statements made by Plaintiff’s immediate
supervisor, Jeffrey Foo, during his
evaluation of Plaintiff’s skills as a haircutter. (Id. ¶ 27.) Specifically, Salguero
told Plaintiff: “I think what he (Jeffrey Foo)
meant is that he has your back. What that
means is that he definitely believes in you.”
(Id. ¶ 28.) Pezeron then added: “[Foo]
thinks you are a good technician and we
think the same thing too.” (Id. ¶ 29.)
Salguero also stated that Foo “is giving you
another chance . . . [s]ince you are not up to
the standards of the quality we need, so you
are either going to comply with everything
we put on your plate or you have to leave
the salon. . . . So you need to come to
classes and if you’re not, then you’re out.”
(Id. ¶ 30.)
At that point during the
conversation, Pezeron told Salguero that
Plaintiff was “threatening to do a lawsuit to
go to the NYPD and blah blah blah because
he said we’re racist against him because he’s
Asian.” (Id. ¶ 31 (emphasis removed).)
On March 25, 2015, Plaintiff filed the
First Amended Complaint. (Doc. No. 10.)
Defendants filed their motion to dismiss on
June 3, 2015 (Doc. No. 21), which was fully
briefed on June 24, 2015 (Doc. Nos. 26, 27).
II. STANDARD OF REVIEW
To survive a motion to dismiss pursuant
to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, a complaint must “provide
the grounds upon which [the] claim rests.”
ATSI Commc’ns, Inc. v. Shaar Fund, Ltd.,
2
However, individuals may be liable
under Section 1981, so long as a plaintiff
shows “some affirmative link to causally
connect the actor with the discriminatory
action.”
Whidbee v. Garzarelli Food
Specialties, Inc., 223 F.3d 62, 75 (2d Cir.
2000).
Similarly, under NYSHRL an
individual may be subject to liability if he
“actually participates in the conduct giving
rise to a discrimination claim.” Feingold v.
New York, 366 F.3d 138, 158 (2d Cir. 2004))
NYCHRL also contemplates individual
liability for “an employee or an agent of the
employer in question.”
Gorman v.
Covidien, LLC, No. 13-cv-6486 (KPF), 2015
WL 7308659, at *11 (S.D.N.Y. Nov. 19,
2015) (citations and internal quotation
marks omitted). Accordingly, Plaintiff’s
claims against Salguero brought under
Section 1981, NYSHRL, and NYCHRL are
not automatically dismissible.
493 F.3d 87, 98 (2d Cir. 2007); see also Fed.
R. Civ. P. 8(a)(2) (“A pleading that states a
claim for relief must contain . . . a short and
plain statement of the claim showing that the
pleader is entitled to relief . . . .”). To meet
this standard, plaintiffs must allege “enough
facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A
claim has facial plausibility when the
plaintiff pleads factual content that allows
the court to draw the reasonable inference
that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). In reviewing a Rule
12(b)(6) motion to dismiss, a court must
accept as true all factual allegations in the
complaint and draw all reasonable
inferences in favor of the plaintiff. ATSI
Commc’ns, 493 F.3d at 98. However, that
tenet “is inapplicable to legal conclusions.”
Iqbal, 556 U.S. at 678. Thus, a pleading that
offers only “labels and conclusions” or “a
formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550
U.S. at 555. If the plaintiff “ha[s] not
nudged [its] claims across the line from
conceivable to plausible, [his] complaint
must be dismissed.” Id. at 570.
B. Discrimination Based on Race and
National Origin
Plaintiff
claims
that
he
was
discriminated against, and ultimately
terminated, on the basis of his Chinese
ethnicity. (FAC ¶ 33–38.) Section 1981
provides that “[a]ll persons within the
jurisdiction of the United States shall have
the same right . . . to make and enforce
contracts . . . and to the full and equal
benefit of all laws and proceedings . . . as is
enjoyed by white citizens.” 42 U.S.C.
§ 1981(a). Thus, Section 1981 “outlaws
discrimination with respect to the enjoyment
of benefits, privileges, terms, and conditions
of a contractual relationship, such as
employment.” Patterson v. Cty. of Oneida,
N.Y., 375 F.3d 206, 224 (2d Cir. 2004).
Title VII similarly makes it unlawful for an
employer “to discriminate against any
individual . . . because of such individual’s
race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e–2(a)(1). Because “[t]he
III. DISCUSSION
A. Individual Liability
Before proceeding to the substance of
Plaintiff’s claims, the Court notes that
“individuals are not subject to liability under
Title VII.” Wrighten v. Glowski, 232 F.3d
119, 120 (2d Cir. 2000) (per curiam); see
also Cook v. Arrowsmith Shelburne, Inc., 69
F.3d 1235, 1241 n.2 (2d Cir. 1995)
(“Supervisory personnel may not be held
individually liable under Title VII.”).
Accordingly,
Plaintiff’s
claims
for
discrimination, hostile-work environment,
and retaliation brought under Title VII
against Salguero are dismissed.
3
employment action, and [4] has at least
minimal support for the proposition that the
employer was motivated by discriminatory
intent.” Littlejohn, 795 F.3d at 311.
same core substantive standards that apply
to claims of discriminatory conduct in
violation of Title VII are also applicable to
claims of discrimination in employment in
violation of [Section] 1981,” Wiercinski v.
Mangia 57, Inc., 787 F.3d 106, 113 (2d Cir.
2015) (citations and internal quotation
marks omitted), the Court analyzes them in
tandem unless otherwise noted.
Here, there is no dispute that Plaintiff
has satisfied the first three prima facie
requirements: (1) Plaintiff is a member of a
protected class on account of his Chinese
nationality; (2) he was qualified for the
position sought in light of his prior
experience and training, and the fact that he
was hired by Defendants; and (3) his
termination is, of course, “a materially
adverse change in the terms and conditions
of employment,” as required to meet the
third element. Henry v. NYC Health &
Hosp. Corp., 18 F. Supp. 3d 396, 404
(S.D.N.Y. 2014) (quoting Mathirampuzha v.
Potter, 548 F.3d 70, 78 (2d Cir. 2008)).
A plaintiff alleging employment
discrimination in violation of Section 1981
and Title VII must “include reference to
sufficient facts to make its claim plausible
. . . in light of the presumption that arises in
the plaintiff’s favor [set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802
(1973)] in the first stage of the litigation.”
Littlejohn v. City of New York, 795 F.3d
297, 310 (2d Cir. 2015). “[W]hile a
discrimination complaint need not allege
facts establishing each element of a prima
facie case of discrimination [under
McDonnell Douglas] to survive a motion to
dismiss, it must at a minimum assert
nonconclusory factual matter sufficient to
nudge its claims across the line from
conceivable to plausible to proceed,” EEOC
v. Port Auth. of N.Y. & N.J., 768 F.3d 247,
254 (2d Cir. 2014) (citations and internal
quotation marks omitted), and courts within
the Second Circuit often use the prima facie
case’s elements as “an outline of what is
necessary
to
render
[a
plaintiff’s
employment discrimination] claims for relief
plausible,” Johnson v. Morrison & Foerster
LLP, No. 14-cv-428 (JMF), 2015 WL
845723, at *3 (S.D.N.Y. Feb. 26, 2015)
(quoting Sommersett v. City of New York,
No. 09-cv-5916 (LTS) (KNF), 2011 WL
2565301, at *5 (S.D.N.Y. June 28, 2011)).
Accordingly, “what must be plausibly
supported by facts alleged in the complaint,”
consistent with the McDonnell Douglas
framework, “is [1] that the plaintiff is a
member of a protected class, [2] was
qualified, [3] suffered an adverse
As for the fourth element, Plaintiff
alleges that he was “treated differently
because he was Chinese.” (FAC ¶ 21.)
However, to support this assertion, Plaintiff
provides merely two examples of the
purported differential treatment.
First,
Plaintiff vaguely alleges that his co-workers
“often made comments about Plaintiff not
being able to communicate with his clients
because of his accent.” (Id. ¶ 22.) Second,
Plaintiff alleges that after a dissatisfied
client refused to pay for a haircut provided
by Plaintiff, Defendants required Plaintiff to
pay for the haircut out of his own pocket.
(Id. ¶ 23.) Plaintiff avers that Ziba’s white
employees were not similarly forced to pay
for dissatisfied customers’ haircuts. (Id.)
With respect to Plaintiff’s co-workers’
remarks, verbal comments may evince
discriminatory motivation when a plaintiff
shows that “a nexus exists between the
allegedly discriminatory statements and a
defendant’s decision to discharge the
plaintiff.” Zhang v. Barr Labs., Inc., No.
98-cv-5717 (DC), 2000 WL 565185, at *4
4
Defendants’ decision to terminate Plaintiff.
Woodward v. TWC Media Sols., Inc., No.
09-cv-3000 (BSJ) (AJP), 2011 WL 70386, at
*7 (S.D.N.Y. Jan. 4, 2011) (finding that
“derogatory statements” were merely “stray
remarks” where, as here, Plaintiff did not
demonstrate “how such comments affected
or were related to the termination
decision.”); see also Mesias v. Cravath,
Swaine & Moore LLP, 106 F. Supp. 3d 431,
438 (S.D.N.Y. 2015) (same); Manko, 554 F.
Supp. 2d at 479 n.36 (same).
(S.D.N.Y. May 8, 2000). In assessing
whether a remark is “probative of
discriminatory intent,” courts frequently
weigh the following factors: “(1) who made
the remark,” (i.e., whether it was a
“decision-maker, a supervisor,” or a lowlevel colleague); “(2) when the remark was
made in relation to the employment decision
at issue; (3) the content of the remark (i.e.,
whether a reasonable juror could view the
remark as discriminatory); and (4) the
context in which the remark was made (i.e.,
whether it was related to the decisionmaking process).” Henry v. Wyeth Pharms.,
Inc., 616 F.3d 134, 149 (2d Cir. 2010)).
Similarly, Plaintiff’s allegation that
Defendants disparately enforced their
“unsatisfactory-hair cut policy” is equally
inadequate to raise an inference that he was
terminated on account of his race. To be
sure, “[a] showing of disparate treatment –
that is, a showing that the employer treated
plaintiff less favorably than a similarly
situated employee outside his protected
group – is a recognized method of raising an
inference of discrimination for purposes of
making out a prima facie case.” Mandell v.
Cty. of Suffolk, 316 F.3d 368, 379 (2d Cir.
2003) (citation and internal quotation marks
omitted).
However, 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) (quoting Shumway v.
United Parcel Serv., Inc., 118 F.3d 60, 64
(2d Cir. 1997)). The “similarly situated”
standard “varies somewhat from case to case
and . . . must be judged based on (1) whether
the plaintiff and those he maintains were
similarly situated were subject to the same
workplace standards and (2) whether the
conduct for which the employer imposed
discipline was of comparable seriousness.”
Graham v. Long Island R.R., 230 F.3d 34,
40 (2d Cir. 2000). “There should be an
objectively
identifiable
basis
for
comparability.” Id. (citation and internal
quotation marks omitted). Thus, “[t]he
Here, Plaintiff’s allegation that his coworkers made critical comments regarding
his accent fails to raise an inference of
discriminatory motivation. As for the first
factor, the remarks at issue were made by
unnamed and unnumbered co-workers, and
there are no allegations that the comments
were made by supervisors or decisionmakers or that Salguero encouraged, or even
knew about, the unspecified statements.
With respect to the second factor, the First
Amended Complaint contains no allegations
concerning the frequency or temporal
proximity of the comments to Plaintiff’s
termination. Under the third factor, the fact
that co-workers “commented upon”
Plaintiff’s accent and his difficulty
communicating with clients (FAC ¶ 22) may
weigh very slightly in Plaintiff’s favor. See
Manko v. Deutsche Bank, 554 F. Supp. 2d
467, 478 n.36 (S.D.N.Y. 2008) (finding that
employer’s comments regarding employee’s
accent “may be probative of discriminatory
intent.”). However, with respect to the
fourth factor, the First Amended Complaint
provides no details regarding the context in
which the remarks were made and whether
they were related to Defendants’ decision to
terminate Plaintiff. After carefully weighing
these factors, the Court finds that these
remarks lack the requisite “causal nexus” to
5
Plaintiff’s employment discrimination
claim is further undermined by his
allegations regarding the conversation that
took place immediately prior to his
termination. Specifically, Plaintiff alleges
that just moments before his termination,
Salguero told him that Defendants “ha[ve]
[his] back” and “definitely believe[] in him”
and think he is a “good technician.” (FAC
¶¶ 28–29.) These comments belie any
inference of discriminatory motivation in his
firing. See James v. N.Y. Racing Ass’n, 233
F.3d 149, 153 (2d Cir. 2000) (noting that “it
is difficult to impute bias against plaintiff's
protected class where the actor who made
the adverse employment decision against
plaintiff also made a recent favorable
employment decision regarding plaintiff”
(citing Grady v. Affiliated Cent., Inc., 130
F.3d 553, 560 (2d Cir.1997)).
standard for comparing conduct requires a
reasonably close resemblance of the facts
and circumstances of plaintiff’s and
comparator’s cases, rather than a showing
that both cases are identical.” Id.
Here, the First Amended Complaint fails
to raise even a minimal inference of
discriminatory intent based on disparate
treatment. First, Plaintiff alleges only a
single episode of disparate treatment.
Foxworth v. Am. Bible Soc’y, No. 03-cv3005 (MBM), 2005 WL 1837504, at *9 n.9
(S.D.N.Y. July 28, 2005) (dismissing
discrimination claim while noting that
“Plaintiff’s single concrete example of
disparate treatment . . . shows the relative
weakness of plaintiff’s claim”), aff’d sub
nom. Mitchell-Foxworth v. Am. Bible Soc’y,
180 F. App’x 294 (2d Cir. 2006). Moreover,
while Plaintiff alleges “on information and
belief” that Defendant ZIBA’s white
employees were not similarly forced to pay
out-of-pocket for non-paying customers’
haircuts (FAC ¶ 23), “the Amended
Complaint is otherwise silent as to these
comparators,” Henry, 18 F. Supp. 3d at 408,
and fails to plead any facts regarding how
these employees’ identities, experience
levels, and conduct compared to Plaintiff’s,
id.; see also Williams v. N.Y.C. Health &
Hosp. Corp., No. 08-cv-4132 (RRM) (LB),
2010 WL 2836356, at *4 (E.D.N.Y. July 16,
2010) (dismissing Title VII claim where
plaintiff merely alleged that “‘[u]pon
information and belief, males got paid when
they were out sick but females [did] not,”
and failed to “specify any facts to support
her claim that males were indeed treated
differently than females in regard to sickleave pay.”); see also T.P. ex rel. Patterson
v. Elmsford Union Free Sch. Dist., No. 11cv-5133 (VB), 2012 WL 860367, at *6
(S.D.N.Y. Feb. 27, 2012) (“[T]o withstand a
motion to dismiss, a plaintiff must allege
specific examples of others similarly
situated who were treated more favorably.”).
For these reasons, Plaintiff fails “to give
plausible support to a minimal inference of
discriminatory motivation.” Littlejohn, 795
F.3d at 311. Accordingly, Plaintiff’s Title
VII and Section 1981 claims alleging
employment discrimination based on race
and national origin are dismissed.
C. Hostile Work Environment
Plaintiff next asserts that Defendants’
actions led to a hostile work environment
based on his race and national origin.
(Opp’n at 7–10.) In order to establish a
hostile-work-environment claim under Title
VII and Section 1981, “a plaintiff must show
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 (citation and internal quotation marks
omitted). In other words, a plaintiff must
show “either that a single incident was
extraordinarily severe, or that a series of
6
“commented” on his foreign accent and
inability to communicate with customers are
clearly insufficient to establish “a workplace
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 (citation and internal quotation
marks omitted).
incidents were sufficiently continuous and
concerted to have altered the conditions of
her working environment.” Desardouin v.
City of Rochester, 708 F.3d 102, 105 (2d
Cir. 2013) (citation and internal quotation
marks omitted). Generally, a hostile-workenvironment claim is assessed based on “the
totality of the circumstances, including ‘the
frequency of the discriminatory conduct; its
severity; whether it is physically threatening
or humiliating, or a mere offensive
utterance; and whether it unreasonably
interferes with an employee’s work
performance.’” Littlejohn, 795 F.3d at 321
(quoting Harris v. Forklift Sys., Inc., 510
U.S. 17, 23 (1993)); Williams v. Cty. of
Westchester, 171 F.3d 98, 100–01 (2d Cir.
1999) (holding that, to meet his burden, a
plaintiff must show “more than a few
isolated incidents” and that “evidence solely
of ‘sporadic racial slurs’ does not suffice”).
Similarly, although Plaintiff also alleges
that he once had to pay out-of-pocket for a
non-paying customer’s haircut, in contrast to
white employees, a “single isolated instance
of harassment will not suffice to establish a
hostile work environment unless it was
extraordinarily severe.” Howley v. Town of
Stratford, 217 F.3d 141, 153 (2d Cir. 2000)
(citation and internal quotation marks
omitted). Here, Plaintiff’s allegation that he
was singled out to pay out of pocket for one
haircut does not come close to the level of
harassment courts in this circuit have found
to be “extraordinarily severe.”
AlbertRoberts v. GGG Constr., LLC, 542 F. App’x
62, 64 (2d Cir. 2013) (affirming dismissal of
hostile-work-environment claim where
plaintiff’s colleague once referred to
plaintiff’s husband using a racist epithet).
Here, the facts alleged in support of
Plaintiff’s hostile-work-environment claims
are clearly deficient.
As with his
discrimination claims, Plaintiff points to the
comments about his accent (Opp’n at 8), but
he fails to specify how often these
comments were directed at him. Moreover,
the remarks at issue are not so severe as to
create an abusive working environment,
since it is well established that “‘[s]imple
teasing, offhand comments, or isolated
incidents of offensive conduct (unless
extremely serious) will not support’ a hostile
work environment claim.” Gallo v. AlitaliaLinee Aeree Italiane-Societa per Azioni, 585
F. Supp. 2d 520, 536 (S.D.N.Y. 2008)
(quoting Petrosino v. Bell Atlantic, 385 F.3d
210, 223 (2d Cir. 2004)); see also Harris,
510 U.S. at 21 (“mere utterance of an . . .
epithet which engenders offensive feelings
in an employee does not sufficiently affect
the conditions of employment to implicate
Title VII.” (citation and internal quotation
marks admitted)).
Thus, Plaintiff’s
allegations
that
his
co-workers
In sum, Plaintiff has not pointed to any
single incident that could be considered
extraordinarily severe and has failed to show
that his workplace was permeated with
continuous
and
concerted
hostility.
Accordingly, the Court dismisses Plaintiff’s
Title VII and Section 1981 hostile-workenvironment claims.
D. Retaliation
Plaintiff next contends that Defendants
retaliated against him in violation of Title
VII and Section 1981 (FAC ¶¶ 47–48, 50,
56), which prohibit an employer from
retaliating against an employee because he
7
that Plaintiff’s belief be objectively
reasonable ensures that “a retaliation claim
is not a ‘tactical coercive weapon that may
be turned against the employer as a means
for the asserted victims to advance their own
retaliatory motives and strategies.’” Wolf v.
Time Warner, Inc., No. 09-cv-6549 (RJS),
2011 WL 856264, at *8 (S.D.N.Y. Mar. 3,
2011) (quoting Spadola v. New York City
Transit Auth., 242 F. Supp. 2d 284, 292
(S.D.N.Y. 2003)).
“The objective
reasonableness of an employee’s belief that
the employer has violated Title VII must ‘be
measured against existing substantive law,’
because a failure to do so would ‘eviscerate
the
objective
component
of
our
reasonableness inquiry.’” Sosa v. Local
Staff, LLC, 618 F. App’x 19, 19–20 (2d Cir.
2015) (quoting Clover v. Total Sys. Servs.,
Inc., 176 F.3d 1346, 1351 (11th Cir. 1999)).
has engaged in a protected activity. See
Littlejohn, 795 F.3d at 315. To establish a
prima facie case of retaliation under those
statutes,
a
plaintiff
must
show:
“(1) participation in a protected activity;
(2) that the defendant knew of the protected
activity; (3) an adverse employment action;
and (4) a causal connection between the
protected activity and the adverse
employment action.” Id. at 316 (citation and
internal quotation marks omitted). As with a
discrimination claim, “[t]he allegations in
the complaint need only give plausible
support to the reduced prima facie
requirements that arise . . . in the initial
phase of [employment discrimination]
litigation.” Id.
With respect to the first element of a
prima facie case – engagement in a
protected activity – a plaintiff suing for
retaliation “need not prove that the
conditions against which he protested
actually amounted to a violation of Title
VII.” Bampoe v. Coach Stores, Inc., 93 F.
Supp. 2d 360, 371 (S.D.N.Y. 2000); see also
Kelly v. Howard I. Shapiro & Assocs.
Consulting Eng’rs, P.C., 716 F.3d 10, 14
(2d Cir. 2013). Rather, Plaintiff need only
demonstrate that he had a “good faith,
reasonable belief that the underlying
challenged actions of the employer violated
[the] law.” Kelly, 716 F.3d at 16 (quoting
Treglia v. Town of Manlius, 313 F.3d 713,
719 (2d Cir. 2002)). In other words, the
federal anti-retaliation provisions “protect[]
not only those employees who opposed
employment practices made unlawful by the
statute but also those who have ‘a good
faith, reasonable belief that the underlying
challenged actions of the employer violated
the law’ even if those actions were not, in
fact, unlawful.” Morris v. David Lerner
Assocs., 680 F. Supp. 2d 430, 442 (E.D.N.Y.
2010) (quoting McMenemy v. City of
Rochester, 241 F.3d 279, 283 (2d Cir.
2001)). At the same time, the requirement
On the current record, Plaintiff’s
allegations of mistreatment are insufficient
to support a plausible inference that he
possessed an objectively reasonable, goodfaith belief that he was experiencing
discrimination.
Once again, Plaintiff’s
allegations of race discrimination and hostile
work environment are premised entirely on
the vague, stray remarks concerning his
accent and the single episode in which he
was required to pay out-of-pocket for a
dissatisfied customer’s haircut. Whatever
Plaintiff’s subjective beliefs at the time,
these incidents are simply inadequate to
support an objectively reasonable belief of
discrimination. With respect to the remarks
by Plaintiff’s colleagues regarding his
accent, the Court finds these to be, at most,
“inappropriate but not abhorrent,” and not
enough to support “in the mind of an
objective listener” a violation of the law.
Sosa v. Medstaff, Inc., No. 12-cv-8926
(NRB), 2014 WL 4377754, at *7 (S.D.N.Y.
Sept. 4, 2014), aff’d sub nom. Sosa, 618 F.
App’x at 19; see also Holmes v. Long Island
R.R. Co., No. 96-cv-6196 (NG), 2001 WL
8
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