Martin v. Walgreen Co. et al
Filing
58
ORDER AND OPINION GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGEMENT re: 37 MOTION for Summary Judgment . filed by Mike Conway, Walgreen Co., Duane Reade Inc., Michael Geyer. For the reasons stated above, Defendants' mot ion for summary judgment is granted. Oral argument currently scheduled for August 14, 2018 is cancelled. The Clerk shall terminate the motion (Dkt. No. 37), grant judgment in Defendants' favor, dismissing the complaint, with costs to be taxed by the Clerk. The Clerk shall mark the case closed. SO ORDERED. (Signed by Judge Alvin K. Hellerstein on 8/9/2018) (rj)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------- X
TEASIA MARTIN,
Plaintiff,
-againstWALGREEN CO., DUANE READE INC.,
ALAMGIR KABIR, Individually, MICHAEL
GEYER, Individually, VIVIAN GHOBRIAL,
Individually, and MIKE CONWAY, Individually,
Defendant.
-------------------------------------------------------------- X
ORDER AND OPINION
GRANTING DEFENDANTS'
MOTION FOR SUMMARY
JUDGMENT
16 Civ. 9658 (AKH)
USDCSDNY
DOCUMENT
ELECTRO NI CALLY FILED
DOC#:
. IlATE ~-,
IL_E_~_:-~.....,,.1/1/i="f_f_ _
ALVIN K. HELLERSTEIN, U.S.D.J.:
Plaintiff Teasia Martin brought this action under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. (Count I and II), and the New York City Human Rights Law
("NYCHRL"), N.Y.C. Admin. Code§ 8-101 et seq. (Count III, IV, V, VI), alleging that her
employer, Defendants Walgreen Co. and Duane Reade Inc. (together "Duane Reade"), 1 and her
managers and supervisors, Defendants Alamgir Kabir, Michael Geyer, Vivian Ghobrial, and
Mike Conway, engaged in unlawful discriminatory and retaliatory practices. In particular,
Martin alleges that, beginning around May 2015, after working for Duane Reade since 2007, her
coworkers would "harass Plaintiff Martin by holding their noses with two fingers whenever she
walked by them, suggesting that Plaintiff Martin smells. Each time this would occur, everyone
who was present, including Defendant Kabir, would then all begin to laugh." Complaint at~ 26.
Plaintiff logged various complaints with her supervisors about these workplace issues. On
October 27, 2015, Plaintiff and coworker Dilruba Khanam had a verbal and physical altercation
1
Walgreen and Duane Reade have common management and share centralized control of labor relations.
Complaint at ,r 11.
while servicing customers at the Duane Reade store where they worked. Martin's employment
was suspended on November 2, 2015, and ultimately terminated on November 23, 2015.
Defendants now move for summary judgment, see Dkt. No. 37, arguing that they took
appropriate action in response to Plaintiffs complaints, and that they ultimately terminated
Plaintiff because of her unprofessional conduct on October 27, a legitimate non-discriminatory
and non-retaliatory reason.
I agree with Defendants. There are no material issues of fact, and, for the reasons
described below, I grant Defendants' motion and give judgment to Defendants. Defendant
Ghobrial has never been served in this case, and Defendant Kabir, who is no longer represented
by counsel, did not join in the instant motion for summary judgment. I find, however, that the
arguments presented herein apply equally to all Defendants, and I therefore dismiss the
Complaint in its entirety.
COMPLAINT
Backgroun d
Plaintiff Teasia Martin began working for Duane Reade in 2007 at the 385 Fifth Avenue
location, and worked there until her termination in 2015. See Rule 56.1 Statements at~ 1. 2
Since 2014, Defendant Kabir has been the store manager at 385 Fifth Avenue.
~
11.
Since 2011, Dilruba Khanam has been the head cashier, but Khanam did not have supervisory
authority over Martin.
~~
13-14. Khanam, Chanmatie Rampersaud, and Babul Shakar were
Martin's coworkers.
Around May 2015, Martin approached Khanam about her belief that Shakar "held his
nose at Martin." , 15. Later that day, Martin met with Kabir, and with assistant store managers
2
Unless otherwise noted, paragraph symbols("~[") refer to paragraphs in Defendants' Statement of Undisputed
Facts, Dkt. No. 37, and corresponding paragraphs in Plaintiff's Opposition Statement, Dkt. No. 44. Unless
otherwise notes, the stated facts are not disputed by the parties.
2
,.
Gus Geter and Ahsan Nasimu l, to discuss Martin's allegations.
,r 20.
The manage rs reviewe d
the store's video footage, which did not corrobo rate Martin's allegatio ns, and no actions
were
taken against Shakar.
,r,r 21-22.
About two days later, Martin claimed to Khanam that Ramper saud was touching her
nose
when Martin passed by. ,; 25. Martin did not complai n to manage ment about these
allegations.
,r 27.
About two weeks later, Martin accused Khanam of holding her nose at Martin.
,r 28.
Khanam averred that that she could not have touched her nose since both she and Martin
were at
their own registers.
incident that day.
before."
,r 29.
,r 30.
Khanam , Martin, and the assistan t store manage rs discusse d the
The followin g day, Martin "hugged Khanam and apologiz ed for the day
,r 34.
At some (unident ified) later date, Kabir spoke with Martin about the nose-ho lding
allegatio ns.
incident s.
,r 43.
Martin could not provide dates and times of, or witnesse s to, the alleged
,r,r 44--45.
Kabir advised Martin and Khanam not to argue with one another.
,r 50.
Kabir also consulte d with Human Resourc es General ist Vivian Ghobria l on how to proceed
.
,r
53.
On July 1, 2015, Martin reached out to her Union, Local 338 RWDSU /UFCW , to discuss
the coworke r issues she was having.
,r 56.
Martin spoke with Union Represe ntative Holly
Hanraha n in mid-Jul y 2015 during Hanraha n's visit to the store. Hanraha n contacte
d Defenda nt
Geyer of Human Resourc es.
did not know Martin.
,r 65.
,r 64.
Geyer did not cover the 385 Fifth Avenue location, and he
Hanraha n then reached out to Ghobrial.
,r 66.
On July 17, 2015, Ghobria l spoke with Kabir about Martin's allegatio ns.
20, Ghobria l notified Martin that she would be handling Martin' s complai nts.
and Martin met in person to discuss the complai nts.
3
,r 72.
,r 68.
,r 70.
On July
Ghobria l
Ghobria l testified that "the only thing
'I.
that [Martin] mentio ned was [Khanam] holding her nose. She didn't mentio
n any other
complaints, just her holding her nose, that's it."
,r 73.
Ghobrial investigated Martin 's complaints and spoke with other employees
at the store.
80. Ghobrial conclu ded that Martin 's allegations were unfounded.
,r 84.
,r
Ghobrial told Martin
that, if she had any issues, she should speak with the store manage r, the union
representative or
Ghobrial, but not with Khanam.
,r 87.
Ghobrial provide d Martin with the option to transfer to a
different store location. Martin declined the offer.
Soon after speakin g with Ghobrial, Martin reached out to Defend ant Michae
l Conway,
the District Manag er of Pharma cy and Retail Operations for Duane Reade.
,r 91.
Per Conwa y's
request, Martin sent a letter dated July 27, 2015, which detailed her allegati
ons that her
coworkers, includi ng Shakar and Khanam , were holding their noses at her and
making fun of her,
and that the store manag er would "laugh as if it was funny."
,r,r 96,
101. In the letter, Martin
also alleges that a "femal e co-wor ker" (presumably Khanam ") called Martin
a "monk ey."
,r 98.
Martin forwarded the letter to Ghobrial, and Ghobrial investigated the allegati
ons in the letter.
Khanam denied calling Martin a "monk ey."
,r 111.
October 27 Incident
A few months later, on Octobe r 27, 2015, there was an incident betwee n Martin
and
Khanam. Martin was speaking with a cowork er while a custom er was waiting
to be serviced.
122. Khanam asked Martin and the other cowork er whethe r they were "blind.
"
,r 123.
,r
In the
ensuing momen ts, there was a verbal and near-physical altercation betwee n
Martin and Khanam.
Martin yelled profanities at Khanam, accused her of having sex with her manage
rs, came behind
the register where Khanam was standing, and invaded her physical space.
,r,r 124, 127.
A
coworker, Rampersaud, stood betwee n Martin and Khanam to preven t a physica
l fight from
following.
,r 132.
A surveillance video, review ed by the Court and attached as Exhibit Y to the
4
....
Declaration of Aaron Warshaw, Dkt. No. 40, recorded the incident. Assistan t store manage
r
Geter sent Martin and Khanam home for the day.
,r 13 5.
Suspension of Martin
On Novemb er 2, 2015, after confirming with Ghobrial, Kabir suspend ed Martin and
Khanam over their unprofessional conduct on October 27, 2015. Ghobrial investigated
the
October 27 incident, and contacted Hanrahan. , 145-46.
Followi ng her suspension, Martin sent a letter to Duane Reade's Human Resources
Departm ent (Novem ber 2 nd Letter) and, on the same day, filed a complai nt with the New
York
State Departm ent of Labor (NYSDO L Complaint).
if 147-48. The Letter and Complaint
mirrored the complaints Martin made in her July 27 th Letter, and further alleged that Khanam
called Martin a "black dog" and a "prostitu te" during the October 27 incident.
,r 151.
The Novemb er 2 nd Letter was forwarded to Ghobrial who investigated the allegations.
No witnesses to the October 27 incident recounte d hearing Khanam use the terms "black
dog" or
"prostitu te."
,r 153.
Khanam, who had also been suspended, contacted her union representative (Hanrahan),
who reached out to Ghobrial to discuss Khanam 's suspension.
,r 154.
Khanam , Ghobrial, and
Hanraha n met on Novemb er 9, 2015, and Ghobrial questioned Khanam about Martin's
namecalling allegations, which Khanam denied.
,r 155-158.
Khanam claimed that Martin had called
her those names, and that Martin was the aggressor in the altercation. Id. Notwith standing
Khanam 's denials, Ghobrial recomm ended that she be terminated for unprofessional conduct
in
arguing in front of customers.
,r 159.
Hanraha n disagreed with Ghobria l' s decision, and, after
bringin the matter to Vice President of Local 338 Jack Caffey and to Ghobria l's manage
r Paul
Logosso, achieved a reconsideration of Ghobria l' s decision to terminate Khanam.
Khanam returned to work on Novemb er 24, 2015.
Termination of Martin
5
,r 167.
,r 160-166.
On Decemb er 1, Ghobria l recomm ended to Kabir, Conway, and Logosso that Martin's
employm ent be terminated.
~
172. Martin was termina ted on Decemb er 2.
~
173.
A grievanc e meeting was held between Ghobrial, Martin, and Lisa Polise (who replaced
Hanraha n as Martin' s union representative) on Decemb er 8. ~ 177. Followi ng the meeting
,
Martin's employm ent was not reinstated.
~
182.
Martin testified that both her race and national origin are "black. "~ 192.
Claims
The Compla int contains six causes of action: unlawful discrimi nation under Title VII,
42
U.S.C. § 2000e et seq. (Count I); retaliati on under Title VII (Count II); discrimi nation
under the
New York City Human Rights Law (NYCH RL), N.Y. Adminis trative Code§ 8-107(1
) et seq.
(Count III); retaliati on under NYCHR L (Count IV); aiding abetting discrimi natory practice
s
under NYCHR L, § 8-107(6) (Count V); and employe r liability for employe es' discrimi
natory
conduct under NYCHR L, § 8-107(13) (Count VI).
LEGAL STANDARD
A court should grant summar y judgme nt ifthere "is no genuine dispute as to any material
fact and the movant is entitled to judgme nt as a matter oflaw." Fed. R. Civ. P. 56(a);
Celotex
Corp. v. Catrett, 477 U.S. 317,322 (1986). A genuine issue of material fact exists "if the
evidenc e is such that a reasona ble jury could return a verdict for the nonmov ing party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). The court must "view the evidenc
e
in the light most favorable to the party opposin g summar y judgme nt ... draw all reasonab
le
inferences in favor of that party, and ... eschew credibil ity assessm ents." Amnesty Am.
v. Town
of West Hartford, 361 F.3d 113, 122 (2d Cir. 2004). However, the non-mo ving party may
not
rely on conclus ory allegations or unsubstantiated speculat ion to defeat the summar y judgme
nt
motion. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
6
DISCUSSION
I.
The Discrimination Claims are Dismissed
a. Legal Standards
"All of [Plainti ffs] claims, save her claim under the NYCHRL, are analyzed under the
burden-shifting framework of McDonn ell Douglas Corp. v. Green, 411 U.S. 792 (1973)."
Simmon s v. Akin Gump Strauss Hauer & Feld, LLP, 508 F. App'x 10, 12 (2d Cir. 2013).
"Under
the McDonnell Douglas framework, [Plaintiff is] required to make out a prima facie case
of
discrimination by showing: (1) membership in a protected class, (2) satisfactory job
performance, (3) adverse employment action, and (4) circumstances giving rise to an inferenc
e
of discrimination on the basis of her membership in that class." Id.
If a plaintiff establishes a prima facie case, a presumption of discrimination is created and
the burden of production shifts to the defendant to articulate some legitimate, nondiscriminato
ry
reason for the adverse employment action or termination. See McDonnell Douglas, 411 U.S.
at
802-03. "If the defendant bears its burden of production, the presumption drops out of the
analysis and the defendant will be entitled to summary judgment ... unless the plaintiff can
point
to evidence that reasonably supports a finding of prohibited discrimination." Farias v.
Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001) (internal citations and quotation
marks
omitted). To do so, Plaintiff must produce "not simply some evidence, but sufficient evidenc
e to
support a rational finding that the 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. KIM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir.1996
)
(internal quotation marks omitted).
7
"[Plain tiffs] claim under the NYCHRL requires an independent analysis, as the
New
York statute, amended by the Local Civil Rights Restoration Act of 2005, was
intended to
provide a remedy reaching beyond those provided by the counterpart federal civil
rights laws. To
prevail on its motion for summary judgment, the [Defendant isJ required to meet
its burden of
showing that, based on the evidence before the court and drawing all reasonable
inferences in
[Plaint iffs] favor, no jury could find that the [Defendant] treated [Plaintiff] 'less
well' than other
employees at least in part because of her race." Simmons, 508 F. App'x at 1 (quotin
g Williams v.
NYC Haus. Auth., N.Y.S.2d 27, 39 (1st Dep't 2009)).
"In assessing the inferences that may be drawn from the circumstances surroun
ding a
termination of employment, the court must be alert to the fact that [e]mployers
are rarely so
cooperative as to include a notation in the personnel file that their actions are motiva
ted by
factors expressly forbidden by law." Chambers v. TRM Copy Centers Corp.,
43 F .3d 29, 37 (2d
Cir. 1994) (internal quotation marks omitted). "[C]aution must be exercised in
granting summary
judgment where intent is genuinely in issue .... " Id at 40. The Second Circuit
has "repeatedly
expressed t4e need for caution about granting summary judgment to an employ
er in a
discrimination case where, as here, the merits turn on a dispute as to the employ
er's intent."
Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008). "Even in the discrim
ination context,
however, a plaintiff must provide more than conclusory allegations to resist a
motion for
summary judgment." Id.
b. Application
Defendants have adequately rebutted Plainti ffs prima facie case (if any) of racial
discrimination by articulating a legitimate non-discriminatory reason for their
business decision.
Plaintiff engaged in unprofessional conduct on October 27, 2015, which led immed
iately to her
8
suspen sion and ultimat ely to her termina tion. Plainti ff has not produc ed eviden
ce to suppor t a
rationa l finding that "the legitim ate, nondis crimina tory reasons proffer ed
by the employ er were
false, and that more likely than not discrim ination was the real reason" for
the challen ged
actions. Van Zant, 80 F.3d at 714. Ghobri al, who recomm ended that Martin
be termina ted, also
recomm ended that Khana m be termina ted. That Khanam was ultimat ely
reinsta ted does not cast
doubt on the conclu sion that Defend ants had a legitim ate reason to termina
te Martin . In fact,
Martin conced es in her brief that her termina tion was motiva ted by nondis
crimina tory reasons . 3
This admiss ion is fatal to Plainti ffs discrim ination claims.
To suppor t her discrim ination claims, Plainti ff points not to her termina tion,
which she
conced es was not motiva ted by discrim ination , but to the comme nts of Khanam
and Kabir,
which Martin refers to as the "adver se employ ment actions ." But such comme
nts are not
themselves employ ment actions. They are best analyze d under the hostile work
environ ment
framew ork discuss ed below.
II.
The Hostile Work Environment Claims are Dismissed
a. Legal Standards
"A hostile work environ ment claim require s a showin g (1) that the harassm
ent was
sufficie ntly severe or pervasi ve to alter the conditi ons of the victim 's employ
ment and create an
abusive workin g environ ment, and (2) that a specifi c basis exists for imputin
g the objecti onable
conduc t to the employ er." Alfano v. Costello, 294 F.3d 365, 373 (2d Cir.
2002) (internal
quotati on marks omitted ) (quotin g Perry v. Ethan Allen, Inc., 115 F.3d 143,
149 (2d Cir.199 7)).
3
"In their motion, Defendants argue that Ms. Martin's employment was terminat
ed for a legitimate nondiscriminatory reason, i.e., violation of company policy and due to her own miscond
uct. However, Ms. Martin has
not alleged that Defendants' decision to terminate her employment was due to
Defendants' discriminatory animus.
Plaintiff does not allege that she has suffered discriminatory termination, but suffered
a retaliatory termination....
Ms. Martin does allege that he adverse employment action she suffered were
Khanam's and Defendant Kabir's
racially discriminatory comments, discussed supra." See Opposition at 8.
9
"The plainti ff must show that the workplace was so severely permeated with
discriminatory
intimidation, ridicule, and insult that the terms and conditions of her employment
were thereby
altered." Id The Second Circuit has "directed courts to determine whether an
environment is
sufficiently hostile or abusive by looking at all the circumstances, including the
frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humilia
ting, or a mere
offensive utterance; and whether it unreasonably interferes with an employee's
work
performance." Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)
(internal quotation
marks omitted) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
"[A] plaintiff
alleging a hostile work environment must demonstrate either that a single inciden
t was
extraordinarily severe, or that a series of incidents were sufficiently continuous
and concerted' to
have altered the conditions of her working environment." Alfano, 294 F.3d at
374 (internal
quotation marks omitted).
b. Application
Martin alleges that Defendants created a hostile work environment, 4 pointing
to (a) her
coworkers holding their noses at Martin; (b) Kabir' s single comment around July
2015 calling
Martin a "monkey"; and (c) Khana m's single comment on October 27 calling
Martin a "black
dog." Reviewing the record in the light most favorable to Plaintiff, as I discuss
below, I cannot
find that the work environment was "sufficiently severe or pervasive to alter the
conditions" of
employment. Nor can I find a specific basis for imputing the objectionable conduc
t to the
employer.
4
The Complaint does not specifically allege hostile work environment, but only
"discrimination" under Title VII
and NYCHRL. Read liberally, I construe the Complaint to include the (associat
ed) hostile work environment
claims.
10
When she met with Kabir in the summer of 2015, Plaintif f was unable to provide specific
dates or times of the alleged nose-holding, and Plaintif f has similarly not furnished the
record
with such details. Martin testified to a few instances of her coworkers holding their noses,
but in
each instance the coworke rs denied the allegations and the supervisors met with the respecti
ve
coworkers to investigate the allegations. Martin was consistently in touch with Ghobria
l who
offered Martin the opportu nity to transfer locations. Further, regardin g the commen ts
by Kabir
and Khanam, such sporadic comments, alleged to have each occurred only once, are not
"pervas ive" enough to create a hostile work environment. I consider "the frequency of
the
discriminatory conduct; its severity; whether it is physically threaten ing or humiliating,
or a mere
offensive utterance; and whether it unreasonably interferes with an employee's work
perform ance." Faragher, 524 U.S. at 787-88. I cannot say that these scattered incident
s
"altered the conditio ns" of employm ent or that they were anything more than "offensi ve,"
as
opposed to discriminatory, conduct and speech. Nor can I say, even under the broader
standards
ofNYC HRL, that Martin was treated "less well" on the basis of her race.
Furthermore, a plaintiff must also show a basis for imputing the conduct to the employe
r.
Alfano, 294 F.3d at 373. Where "the alleged harasser is in a supervis ory position over the
plaintiff, the objectionable conduct is automatically imputed to the employe r." Gorzyns
ki v.
JetBlue Airways Corp., 596 F.3d 93, 103 (2d Cir. 2010). "[W]he n the harassm ent is attributa
ble
to a coworker, rather than a supervisor, ... the employer will be held liable only for its
own
negligence. Accordingly, [the plaintiff] must demonstrate that her employe r failed to
provide a
reasonable avenue for complai nt or that it knew, or in the exercise of reasona ble care should
have known, about the harassm ent yet failed to take appropriate remedial action." Duch
v.
Jakubek, 588 F.3d 757, 762 (2d Cir. 2009) (internal citations and quotation marks omitted)
.
11
Here, while Kabir was a supervisor, Khanam and the other cowork ers were
not. When
the actions of such cowork ers were brough t to Duane Reade' s attention, it
procee ded with
appropriate action and initiated investigations through the various manage rs
and personnel. Any
discrim inatory action by the employ ees cannot be impute d here to the employ
er.
For much the same reasons, Count VI of the Compl aint, seeking to hold the
employ er
liable under NYCH RL § 8-107(13)(b) fails. Section 8-107( 13)(b) impose s
vicarious liability on
an employ er for discrim inatory acts by its employ ees or agents where: "(1)
the employ ee or
agent exercis ed manage rial or supervi sory responsibility; or (2) the employ
er knew of the
employ ee's or agent's discrim inatory conduct, and acquies ced in such conduc
t or failed to take
immed iate and appropriate corrective action; an employ er shall be deemed
to have knowle dge of
an employ ee's or agent's discrim inatory conduc t where that conduc t was known
by another
employ ee or agent who exercis ed manage rial or superv isory responsibility;
or (3) the employ er
should have known of the employ ee's or agent's discrim inatory conduc t and
failed to exercise
reasona ble diligence to preven t such discriminatory conduc t." Plainti ff has
failed to raise a
triable issue of fact that the employ er acquies ced to discriminatory conduc
t or failed to exercise
reasona ble diligence to preven t it.
III.
The Retaliation Claims are Dismis sed
a. Legal Standards
Retalia tion claims are also analyze d under the burden shifting framew ork of
McDoddell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, the plainti
ff must first
establis h a prima facie case of retaliat ion by showin g that ( 1) he was engage
d in protect ed
activity; (2) the defend ant was aware of the protect ed activity; (3) he suffere
d a materia lly
adverse action; and (4) there is a causal connec tion betwee n his protect ed activity
and the
12
material adverse action. See Lore v. City ofSyracuse, 670 F.3d 127, 157 (2d Cir. 2012). "[P]roof
of causation can be shown either: (1) indirectly, by showing that the protected activity was
followed closely by discriminatory treatment, or through other circumstantial evidence such as
disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through
evidence of retaliatory animus directed against the plaintiff by the defendant." Gordon v. New
York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000).
If the plaintiff establishes a prima facie case, then the burden shifts to the employer to
articulate a legitimate, non-retaliatory reason for the adverse action. Jute v. Hamilton
Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005). Once the employer offers such proof, the
burden shifts back to the employee, who "must show that retaliation was a substantial reason for
the adverse employment action." Id. At step three, the plaintiff must demonstrate "that the
desire to retaliate was the but-for cause of the challenged employment action," and if she fails to
do so, her claims are dismissed. See Ya-Chen Chen v. City Univ. of New York, 805 F.3d 59, 70,
73 (2d Cir. 2015).
"[T]he retaliation inquiry under the [NY]CHRL is 'broader' than its federal counterpart.
Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 723 (2d Cir. 2010) (quoting Williams
v. NY City Haus. Auth., 872 N.Y.S. 2d 27, 34 (1st Dep't 2009)). Under the NYCHRL,
retaliation "in any manner" is prohibited, and "[t]he retaliation ... need not result in an ultimate
action with respect to employment ... or in a materially adverse change in the terms and
conditions of employment." N.Y.C. Admin. Code§ 8-107(7). However, "[t]he functional
difference, if any, between the [NY]CHRL standard and that used for federal and state retaliation
claims has never been fully articulated." Fincher, 604 F.3d at 723.
b. Application
13
Here, Plaintiff's retaliation claims fail at step one. Plaintiff argues that
she submitted
complaints on July 27, 2015 and later on November 2, 2015, and that
she was ultimately
terminated on December 2, 2015, in retaliation for her complaints. The
"materially adverse
action" (her termination) occurred four months after her July 27 compl
aint, and the November 2
complaint occurred after the events giving rise to her termination (i.e.,
the October 27 incident).
The circumstantial evidence does not show any "causal connection betwe
en
[Plaintiff's]
protected activity and the material adverse action." Lore, 670 F.3d at
157.
Furthermore, even if Plaintiff had made out a prima facie case of retalia
tion, Defendants
have adequately rebutted it by articulating a legitimate non-discriminatory
reason for their
business decision. Plaintiff engaged in unprofessional conduct on Octob
er 27, 2015, which led
immediately to her suspension and ultimately to her termination. Plaint
iff has not produced
evidence to support a rational finding that the "that retaliation was a substa
ntial reason for the
adverse employment action." Jute, 420 F.3d at 173. Plaintiff fails to
raise a triable issue of fact
to support a claim under Title VII or even under the more favorable standa
rds of the NYCHRL.
IV.
Aidin g and Abetti ng
An individual defendant may also be held personally liable under the
NYCHRL if he
participates in the conduct giving rise to the discrimination claim. Schan
jield v. Sojitz Corp. of
Am., 663 F. Supp. 2d 305,3 44 (S.D.N.Y. 2009). "However, liability
under the [NY]HRL and the
NYCHRL must first be established as to the employer/principal before
an individual may be
considered an aider and abettor." Sowemimo v. D.A.O.R. Sec., Inc., 43
F.Supp.2d 477,4 90
(S .D .N. Y.1999).
Here, the only defendant alleged to have engaged in discriminatory condu
ct is Kabir.
However, as mentioned above, Kabir's conduct is insufficient to suppo
rt a claim for
14
,.
discrimination, hostile work environment, or retaliation
. Further, as discussed above, there is no
viable claim against the employer/principal. The aidin
g and abetting claims therefore fail.
CONCLUSION
For the reasons stated above, Defe ndan ts' motio n for summ
ary judgm ent is granted. Oral
argument currently scheduled for Augu st 14, 2018 is cance
lled. The Clerk shall terminate the
motio n (Dkt. No. 37), grant judgm ent in Defe ndan ts' favor
, dismissing the complaint, with costs
to be taxed by the Clerk. The Clerk shall mark the case
closed.
Dated:
Augu st , 2018
New Y rk, New York
United States District Judge
15
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