George et al v. Professional Disposables International, Inc.
OPINION AND ORDER re: 142 MOTION for Reconsideration of the Portion of the Court's July 24, 2017 Opinion and Order Denying Summary Judgment on Plaintiff Saju George's Termination Claims and the Transcript of the Court's J uly 24, 2017 Opinion and Order filed by Professional Disposables International, Inc. For the reasons set forth above, Defendant's motion for reconsideration is denied. The Clerk of Court is respectfully directed to terminate the motion pending at Docket No. 142. (Signed by Judge Ronnie Abrams on 10/12/2017) (rj)
DATE FILED: 10/12/2017
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
No. 15-CV-3385 (RA)
INTERNATIONAL, INC.; DAVID
PENNELLA; JODI KIERNAN; JOSEPH
ZOCALLI; and CUSTER (JAY)
OPINION AND ORDER
RONNIE ABRAMS, United States District Judge:
Plaintiff Saju George brings this discrimination action against his former employer,
Defendant Professional Disposables, Inc., under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 1981, and the New York State Human Rights Law. Before the Court is Defendant's
motion for partial reconsideration of the Court's July 24, 2017 decision denying Defendant's
motion for summary judgment. For the reasons set forth below, Defendant's motion for partial
reconsideration is denied.
Plaintiff is a native of India and identifies his race as "Indian Asian," "Asian," or "nonCaucasian."
Def.'s Rule 56.1 Stmt. ("Def.'s 56.1")
manufacturer and distributor of sanitized wet wipes. See id.
Defendant is a
On January 6, 1997, Defendant
The Court assumes familiarity with the facts underlying this case, which are recited in the Court's
prior orders. See, e.g., R. & R. (June 1, 2016) (Dkt. 84), adopted by Order (July 14, 2016) (Dkt. 96); R. & R.
(Aug. 3 1, 2016) (Dkt. 98), adopted by Op. & Order (Nov. 16, 2016) (Dkt. I 0 I); Op. & Order (May 2, 201 7)
hired Plaintiff as a machine operator at its Orangeburg, New York facility. See id. On January
16, 2014, Defendant terminated Plaintiff's employment, citing his failure to obtain permission
before taking an extended lunch break and his failure to clock out at the end of a shift as bases for
its decision. See id.
38; Deel. of David W. Garland in Supp. of Def.'s Mot. for Summ J.
("Garland Deel.") Ex. M (Dkt. 106). Plaintiff claims that he was subjected to discrimination and
a hostile work environment on the basis of his race, color, and national origin in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the New York State Human Rights
Law. See Am. Compl. (Dkt. 37). 2
In an oral ruling on July 24, 2017, the Court denied Defendant's motion for summary
judgment. See Tr. of Decision (Dkt. 149). With respect to Plaintiff's discrimination claims, the
Court determined that a reasonable juror could find both that Plaintiff had established a primafacie
case of discrimination and that Defendant's legitimate, non-discriminatory reasons for his
termination were pretext for discrimination. See id. at 3: 10-14: 5. Turning to Plaintiff's hostile
work environment claim, the Court concluded that a reasonable juror could, on the basis of
Plaintiff's testimony that his direct supervisor made offensive remarks regarding his race and
national origin at least five times per day, find that Plaintiff was subjected to a hostile work
environment. See id. at 14:6-15:25.
On August 7, 2017, Defendant filed a motion for partial reconsideration. See Def. 's Mot.
for Recons. (Dkt. 142). On August 21, 2017, Plaintiff filed an opposition to Defendant's motion,
see Pl.'s Mem. in Opp'n to Def.'s Mot. for Recons. ("Pl.'s Mem.") (Dkt. 146), and on August 25,
2017, Defendant filed a reply, see Def.'s Reply Mem. (Dkt. 147).
In his amended complaint, Plaintiff asserted several other claims against both PDI and four
individual defendants. See Am. Comp!. These claims have since been withdrawn or dismissed.
"Motions for reconsideration are governed by Local Civil Rule 6.3 and Federal Rule of
Civil Procedure 60(b)." Farmer v. United States, No. 12-CR-758 (AJN), 2017 WL 3448014, at
*2 (S.D.N.Y. Aug. 10, 2017) (quoting Shaw v. Mcdonald, No. 14-CV-5856 (NSR), 2016 WL
828131, at *1 (S.D.N.Y. Feb. 22, 2016)). "A motion for reconsideration is an extraordinary
remedy to be employed sparingly in the interests of finality and conservation of scarce judicial
resources." Cohen Lans LLP v. Naseman, No. 14-CV-4045 (JPO), 2017 WL 1929587, at *1
(S.D.N.Y. May 10, 2017) (quoting Pablo Star Ltd. v. Welsh Gov't, No. 15-CV-1167 (JPO), 2016
WL 2745849, at * 1 (S.D.N.Y. May 11, 2016)).
"In order to prevail on a motion for
reconsideration, a movant must demonstrate '(i) an intervening change in controlling law; (ii) the
availability of new evidence; or (iii) the need to correct clear error or prevent manifest injustice."'
Id. (quoting Pablo Star, 2016 WL 2745849, at *1).
"The standard governing motions for
reconsideration 'is strict, and reconsideration will generally be denied unless the moving party can
point to controlling decisions or data that the court overlooked."' Bldg. Serv. 32BJ Health Fund
v. GCA Servs. Grp., Inc., No. 15-CV-6114 (PAE), 2017 WL 1283843, at *1 (S.D.N.Y. Apr. 5,
2017) (quoting Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012)).
"A motion for reconsideration is 'not a vehicle for relitigating old issues, presenting the case under
new theories, securing a rehearing on the merits, or otherwise taking a second bite at the apple."'
Sea Trade Mar. Corp. v. Coutsodontis, No. 09-CV-488 (LGS), 2017 WL 13 78276, at* 1 (S.D.N. Y.
Apr. 14, 2017) (quoting Analytical Surveys, 684 F.3d at 52); see also de las Santos v. Fingerson,
No. 97-CV- 3972 (MBM), 1998 WL 788781, at *1 (S.D.N.Y. Nov. 12, 1998) ("[T]he proponent
of a motion for reconsideration is not supposed to treat the court's initial decision as the opening
of a dialogue in which that party may then use such a motion to advance new theories or adduce
new evidence in response to the court's rulings.").
A. Consideration of Joseph Zocalli's Alleged Statements
Defendant first argues that the Court incorrectly applied Second Circuit precedent by
determining that Joseph Zocalli's alleged remarks regarding Plaintiffs race, color, and national
origin give rise to an inference of discrimination. See Def.' s Mem. in Supp. of Mot. for Recons.
("Def.'s Mem.") at 4-13 (Dkt. 143); Tr. of Decision at 4:15-8:6. 3 Specifically, Defendant argues
that no reasonable juror could infer discrimination on the basis of Zocalli's alleged remarks
because there is no evidence that Zocalli played a meaningful role in Plaintiffs termination. This
argument is without merit.
Defendant is correct that, in determining whether a statement regarding an employee's
protected characteristics is probative of discrimination, courts often consider whether the speaker
played a "meaningful role" in the adverse employment action. See, e.g., Bickerstaff v. Vassar
Coll., 196 F.3d 435, 450 (2d Cir. 1999). In this case, the record contains sufficient evidence for a
reasonable juror to conclude that Zocalli did, in fact, play a meaningful role in Defendant's
decision to terminate Plaintiffs employment. There is no dispute that Zocalli was Plaintiffs direct
supervisor-and had been, according to Plaintiff, for a period of six years.
117:7-13; see also Def.' s 56.1
See Pl. Dep. Tr. at
ii 22 ("George, as a Mechanic, reported directly to Joseph Zocalli,
Maintenance Supervisor."); Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir. 2010)
As the Court explained, Plaintiff testified at his deposition that Zocalli made the following
statements to him during his employment: (i) "You are a nasty Indian," Letter from David W. Garland to
Ct. Ex. I ("Pl. Dep. Tr.") at 84:3-4 (Dkt. 125-1 ), (ii) "The Indian guy ... he's not talking properly," id. at
106:2-3, (iii) "You black, you Indian, you don't know how to behave, you don't know how to speak," id.
at 107:7-9, and (iv) "I don't like your color," id. at 118:22. Plaintiff also testified that Zocalli referred to
him as a "chalupa." See id. at 106:5, 109:23.
(explaining that, in determining whether a remark is probative of discrimination, courts consider
"who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker)" (emphasis
added)). The record also contains evidence suggesting that Zocalli had a significant role in the
investigation that ended in Plaintiff's termination. Indeed, Zocalli initiated the investigation by
summoning Plaintiff to an "empty office" to discuss the alleged performance issues that were
ultimately cited as the basis for his termination. Def.' s 56.1 ,-r 31. As the investigation continued,
a reasonable juror could conclude that Zocalli maintained an active role. Zocalli participated in
multiple meetings with Plaintiff and Jodi Kiernan, the Human Resources manager who signed
Plaintiff's termination letter. See, e.g., Def.' s 56.1 ,-r 32; Garland Deel. Ex. M; Pl. Dep. Tr. at
196: 10-22. The evidence suggests that Zocalli may have spoken during these meetings, see, e.g.,
Pl. Dep. Tr. at 199:22-25, and his statements were attached as "supporting documentation" to an
internal memorandum discussing Plaintiff's termination, see Garland Deel. Ex. L. Moreover,
while Defendant asserts that Kiernan played a far more significant role in the process than Zocalli,
a reasonable juror could conclude otherwise: Plaintiff testified, for example, that he did not meet
alone with Kiernan during the investigation, but was "always" with "Joe Zocalli or Jay Amarillo."
Pl. Dep. Tr. at 167:20-168:4. This evidence, consisting of both Zocalli's role as Plaintiff's direct
supervisor and as a key player in the termination process, provides a sufficient basis for a juror to
reasonably infer discrimination on the basis of Zocalli's alleged statements. See Rose v. New York
City Bd. ofEduc., 257 F.3d 156, 162 (2d Cir. 2001) (holding that alleged statements "made directly
to [the plaintiff] on more than one occasion by her immediate supervisor, who had enormous
influence in the decision-making process" were "direct evidence of discriminatory animus"). 4
See also, e.g., Brown v. Crowdtwist, No. 12-CV-6110 (HB), 2014 WL 1468145, at *3 (S.D.N.Y.
Apr. 15, 2014) (finding that alleged statements made by an individual who "was not Plaintiff's direct
supervisor" but "was one of the three main decisionmakers in the firm, and undisputedly had input into
Plaintiff's termination" probative of discriminatory intent); Ellis v. Century 21 Dep 't Stores, 975 F. Supp.
Defendant's argument that the Court's ruling conflicts with the Second Circuit's standard
for "cat's paw" liability is also unpersuasive. See Def.' s Mem. at 9-13.
As the Second Circuit
explained in Vasquez v. Empress Ambulance Service, Inc., 835 F.3d 267 (2d Cir. 2016), the "cat's
paw" theory of liability "refers to a situation in which an employee is fired or subjected to some
other adverse employment action by a supervisor who himself has no discriminatory motive, but
who has been manipulated by a subordinate who does have such a motive and intended to bring
about the adverse employment action." Id. at 272 (quoting Cookv. !PC Int'! Corp., 673 F.3d 625,
628 (7th Cir. 2012)). Vasquez further explained that the "cat's paw" theory accords with the
Second Circuit's "longstanding precedent" holding, as discussed above, that "a Title VII plaintiff
is entitled to succeed, even absent evidence of illegitimate bias on the part of the ultimate decision
maker, so long as the individual shown to have the impermissible bias played a meaningful role in
the decisionmaking process." Id. (alteration omitted) (quoting Holcomb v. Iona Coll., 521 F.3d
130, 143 (2d Cir. 2008)). Thus, the "cat's paw" theory ofliability extends an employer's potential
liability to circumstances in which there is no evidence that anyone with a "meaningful role" in
the decisionmaking process harbors any impermissible bias, but where there is evidence of
manipulation by a subordinate who does. See id.
Here, however, the Court had no need to rely
on the "cat's paw" theory, as there is sufficient evidence for a juror to reasonably conclude that
Zocalli both evinced "impermissible bias" against Plaintiff and played a "meaningful role" in the
2d 244, 275-76 (E.D.N.Y. 2013) (determining that alleged remarks made by a co-CEO, who "was not the
ultimate decision maker" in a challenged hiring decision but "played a role in the selection process" and
"had 'input' into the hiring decision" was sufficient to demonstrate a triable issue of fact as to discriminatory
intent); Quinones v. At!. Hyundai, No. 06-CV-1626 (TLM), 2010 WL 681671, at *2 (E.D.N.Y. Feb. 25,
2010) (relying on "evidence of discriminatory comments made to an employee by a supervisor who had
influence in the decision-making process" as evidence of an employer's discriminatory motive); Rolon v.
Pep Boys-Manny, Moe & Jack, 601 F. Supp. 2d 464, 468-69 (D. Conn. 2009) (finding that an individual's
"status as [the plaintiff's] supervisor," combined with the "proximity of the remarks to the termination" and
"the discriminatory content of the remarks" gave rise to an inference of discrimination and that the fact that
the speaker "did not make the decision to terminate [the plaintiff]" was "not determinative").
decisionmaking process. Id. Accordingly, Defendant's discussion of the "cat's paw" theory of
liability provides no basis for reconsideration.
B. Admissibility of Plaintiff's Statements Regarding the Reasons for his Termination
Defendant next argues that the Court erred in ruling that Plaintiffs deposition testimony
regarding the reasons for his termination is not admissible under Federal Rule of Evidence 701 (b ).
See Def.'s Mem. at 13-17; Tr. of Decision at 10:25-13:15. This argument is also unpersuasive.
Rule 701 provides that a lay witness may testify in the form of an opinion, provided that
his testimony is limited to one that is: (a) rationally based on the perception of the witness; (b)
helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c)
not based on scientific, technical, or other specialized knowledge within the scope of Rule 702."
Fed. R. Evid. 701.
The Second Circuit has held that, "[i]n employment discrimination actions,
'Rule 701(b) bars lay opinion testimony that amounts to a naked speculation concerning the
motivation for a defendant's adverse employment decision."' Village of Freeport v. Barrella, 814
F.3d 594, 611 (2d Cir. 2016) (quoting Hester v. BIC Corp., 225 F.3d 178, 185 (2d Cir. 2000)).
Thus, "[a]lthough witnesses may testify regarding 'their own observations of the defendant's
interactions with the plaintiff or with other employees,' they may not opine as to the motives, racial
or otherwise, underlying those interactions." Id. (quoting Hester, 225 F.3d at 185).
In moving for reconsideration, Defendant argues that this rule does not apply where, as
here, the witness who "opine[ s] as to the motives" of an employer is the plaintiff, rather than a
third party. Id.; see Def.' s Mem. at 14-17. By Defendant's own admission, however, "the Second
Circuit does not appear to have confronted the question directly." Id. at 15. As a result, Defendant
cannot claim that the Court overlooked any "controlling decisions," Bldg. Serv. 32BJ Health Fund,
2017 WL 1283843, at
or that any "intervening change in controlling law" warrants
reconsideration, Cohen Lans, 2017 WL 1929587, at *1 (quoting Pablo Star, 2016 WL 2745849,
at * 1). In any event, Defendant offers no principled basis for distinguishing between the opinion
testimony of a third party, such as a coworker, and that of a plaintiff regarding an employer's
motives. In either case, the witness is not, as a general matter, "involved in [the] decision-making
process" and can only offer "subjective impressions" regarding the reasons for the employer's
Hester, 225 F.3d at 184. Thus, in either case, '"the witness's opinion as to the
defendant's ultimate motivations will often not be helpful within the meaning of Rule 701 because
the jury will be in as good a position as the witness to draw the inference as to whether or not the
defendant' was motivated by an impermissible animus." Id. at 185 (quoting United States v. Rea,
958 F .2d 1206, 1216 (2d Cir. 1992)). 5 And in this case, Defendant does not explain why Plaintiff's
testimony is any more helpful, or any less subjective, than the testimony a third party might
provide. Thus, Defendant has not shown that the Court's ruling regarding the admissibility of
Plaintiff's testimony was clearly erroneous or contrary to any controlling decisions.
Rule 701 aside, Defendant appears to argue that Plaintiff's deposition testimony is entitled
to dispositive weight because it contradicts the allegations in his amended complaint. It is true
that, "in the rare circumstances where the plaintiff relies almost exclusively on his own testimony,
much of which is contradictory and incomplete, and where the facts alleged are so contradictory
that doubt is cast upon their plausibility," a district court may grant the defendant summary
Without expressly citing Rule 701, courts routinely conclude that a plaintiff's testimony regarding
the reasons for an adverse employment action is not sufficient to show the existence of a triable issue of
fact as to his employer's motivation. See, e.g., Moore v. NY State Div. of Parole, No. 06-CV-1973 (CPS),
2008 WL 4394677, at *10 (E.D.N.Y. Sept. 23, 2008) (concluding that a plaintiff's "own deposition
testimony" that she was discriminated against because of her race and gender was "an insufficient basis
from which to infer that the defendants' facially neutral acts were discriminatory"); Payne v. MTA NY.C.
Transit Auth., 349 F. Supp. 2d 619, 627 (E.D.N.Y. 2004) (finding plaintiff's "own unsubstantiated,
subjective belief, embodied in his deposition testimony, that white and black colleagues at the NYCT A
conspired to humiliate him and remove him from his position because of his race" was not sufficient to
create a triable issue of fact as to whether his reassignment was "the result of racial discrimination").
judgment on the grounds that "no reasonable person would undertake the suspension of disbelief
necessary to give credit to the allegations made in the complaint." Jeffreys v. City of New York,
426 F.3d 549, 554-55 (2d Cir. 2005) (alterations omitted) (internal quotation marks omitted);
accord Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 104-05 (2d Cir. 2011) (per
curiam). On the other hand, "the court considering a summary judgment motion should not
disregard" a plaintiff's allegations or testimony "if there is a plausible explanation for
discrepancies in [his] testimony." Langman Fabrics v. Graf!Californiawear, Inc., 160 F.3d 106,
112 (2d Cir. 1998).
Here, Plaintiff's apparent confusion, perhaps due to his difficulty
understanding English, provides a "plausible explanation" for discrepancies between his testimony
and the allegations in his amended complaint.
Id. 6 Throughout the testimony upon which
Defendant asks the Court to rely, Plaintiff provided answers suggesting that he did not understand
the questions being asked and, in some cases, outright stated that he was confused. For example,
when asked, "Do you think that your termination had anything to do with where you're from,"
Plaintiff responded, "Termination? I don't believe that because-I don't believe that. There's only
one person, Joe Zocalli, create all these things. He's the one behind it." Pl. Dep. Tr. at 179:5-10.
When defense counsel responded, "But to be clear, you don't believe that your national origin, the
fact that you're from India and the others were from the Dominican Republic, is the reason that
you were discharged," Plaintiff answered, "That's not correct." Id. at 179:14-180:8. And when
asked why this was not correct, Plaintiff responded, "Joe Zocalli created the problem." Id. at
180: 10. When defense counsel followed up with further questions, Plaintiff stated, "I don't follow
During Plaintiffs deposition, his counsel claimed that Plaintiff did not understand English. See,
e.g., Pl. Dep. Tr. at 10:9-10 ("[H]e doesn't understand much of English."); id. at 11 :7-8 ("He does not
understand English."). It does not appear that a translator was present.
the question." Id. at 181: 10-12. 7 In light of this confusion, and its obligation to view the evidence
in the light most favorable to Plaintiff, the Court cannot conclude that no reasonable juror would
credit the allegations made in the amended complaint. Accordingly, the discrepancies between
Plaintiffs amended complaint and his deposition testimony do not provide a basis for granting
Defendant summary judgment.
C. Consideration of "Comparator" Evidence
Finally, Defendant argues that the Court erred in "rejecting" evidence that other employees
were, according to Defendant, treated "exactly the same way" as Plaintiff. See Def.' s Mem. at 1718. Defendant mischaracterizes the Court's ruling. The Court did not "reject" evidence regarding
the treatment of other PDI employees. This evidence may be relevant and may well support
Defendant's position at trial. At the summary judgment stage, however, the Court concluded that
this evidence was not sufficient to demonstrate the absence of any dispute of fact as to whether
Plaintiff was terminated on the basis of his race or national origin. Defendant has not shown that
this conclusion was clearly erroneous or contrary to controlling law.
The confusion appears to have continued throughout this exchange. For example, when asked
whether he believed that his "color had anything to do with [his] termination," Plaintiff responded, "Only
Joe Zocalli worry about me. I don't know anything else. He is trying to - he raised my color, he's only one
person I'm telling." Pl. Dep. Tr. at 183:22-184:4. When asked again whether he believed that "the
company terminated [his] employment because of [his] color," Plaintiff answered, "No." Id. at 188:23189:2. Yet, when asked shortly thereafter whether he could say "that it was [his] race that caused [his]
discharge," Plaintiff responded, "It's part of the termination maybe." Id. at 192:6-9.
For the reasons set forth above, Defendant's motion for reconsideration is denied. The
Clerk of Court is respectfully directed to terminate the motion pending at Docket No. 142.
October 12, 2017
New York, New York
United States District Judge
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