Kaplan v. New York State Department of Labor et al
Filing
138
OPINION AND ORDER re: 117 MOTION for Summary Judgment filed by New York State Department of Labor. For the foregoing reasons, Defendant's motion for summary judgment is GRANTED IN PART and DENIED IN PART. Plaintiff's claim for discrimination in the form of a hostile work environment is dismissed, while Plaintiff's claim for retaliation is sustained. The Clerk of Court is directed to terminate the motion at docket entry 117. The parties are directed to meet and confer, and to submit a joint letter to the Court outlining proposed next steps in the case, on or before April 23, 2021. (Signed by Judge Katherine Polk Failla on 3/22/2021) (nb)
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 1 of 36
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FREDY KAPLAN,
Plaintiff,
18 Civ. 3629 (KPF)
v.
NEW YORK STATE DEPARTMENT OF
LABOR,
OPINION AND ORDER
Defendant.
KATHERINE POLK FAILLA, District Judge:
This case remains among the most unusual in the Court’s docket.
Plaintiff Fredy Kaplan and several of his female co-workers at the New York
State Department of Labor (“DOL” or “Defendant”) claimed harassment at the
hands of a junior male co-worker. The claims were investigated and
substantiated, and the co-worker was permitted to resign. Shortly thereafter,
Plaintiff either did or did not confess to fabricating his allegations about the coworker. A second investigation was commenced, at the end of which Plaintiff’s
employment at DOL was terminated. Plaintiff brought the instant lawsuit
against DOL and several of its current and former officers. Earlier motion
practice resulted in the termination of claims against the individual
defendants; DOL now moves for summary judgment as to the remaining claims
against it, which are claims under Title VII of the Civil Rights Act of 1964,
codified as amended at 42 U.S.C. §§ 2000e to 2000e-17 (“Title VII”), for
discrimination in the form of a hostile work environment and retaliation. For
the reasons set forth in the remainder of this Opinion, the Court grants in part
and denies in part DOL’s motion.
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 2 of 36
BACKGROUND 1
A.
Factual Background
1.
Plaintiff’s Hiring into DOL’s Labor Standards Division
The Court has discussed the factual and procedural histories of this case
in its prior Opinion resolving two motions to dismiss. (Dkt. #70). See Kaplan
v. N.Y.S. Dep’t of Lab., No. 18 Civ. 3629 (KPF), 2019 WL 3252911 (S.D.N.Y.
July 19, 2019) (“Kaplan I”). 2 However, because not all of Plaintiff’s allegations
have been borne out in discovery, the Court does not rely on its earlier factual
recitation.
Plaintiff is an attorney who self-identifies as a Jewish man. (Def. 56.1
¶ 4). In March 2015, Plaintiff was hired by Defendant to work in its Counsel’s
Office, which represents Defendant in a variety of administrative and litigation
1
The facts set forth in this Opinion are drawn from Defendant’s Local Civil Rule 56.1
Statement (“Def. 56.1” (Dkt. #124)); Plaintiff’s Local Civil Rule 56.1 Counterstatement,
which is included in Plaintiff’s opposition briefing (“Pl. 56.1” (Dkt. #127)); various
declarations submitted by the parties (including the exhibits attached thereto), which
are cited using the convention “[Name] Decl.”; and certain deposition transcripts, which
are cited using the convention “[Name] Dep.” For ease of reference, Defendant’s opening
brief is referred to as “Def. Br.” (Dkt. #118); Plaintiff’s opposition brief as “Pl. Opp.” (Dkt.
#127); and Defendant’s reply brief as “Def. Reply” (Dkt. #132).
Citations to a party’s Rule 56.1 Statement incorporate by reference the documents cited
therein. Where facts stated in a party’s Rule 56.1 Statement are supported by
testimonial or documentary evidence, and denied with only a conclusory statement by
the other party, the Court finds such facts to be true. See Local Civil Rule 56.1(c)
(“Each numbered paragraph in the statement of material facts set forth in the
statement required to be served by the moving party will be deemed to be admitted for
purposes of the motion unless specifically controverted by a corresponding numbered
paragraph in the statement required to be served by the opposing party.”); id. at 56.1(d)
(“Each statement by the movant or opponent ... controverting any statement of material
fact[] must be followed by citation to evidence which would be admissible, set forth as
required by Fed. R. Civ. P. 56(c).”). Additionally, to the extent that Plaintiff purports to
dispute facts in Defendant’s Rule 56.1 Statement with inadmissible evidence, or with
evidence that does not support the proposition for which it is advanced, the Court finds
such facts to be true.
2
The earlier opinion misspells Plaintiff’s first name as “Freddy.”
2
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 3 of 36
proceedings. (Id. at ¶ 3). Plaintiff worked out of DOL’s office on Varick Street
in lower Manhattan. (Id. at ¶¶ 2, 5). From at or about the time of his hiring
until September 2016, Plaintiff was assigned to litigate administrative
proceedings on behalf of the Labor Standards Division. (Id. at ¶ 5; Pl. 56.1
¶ 5).
Several months after hiring Plaintiff, Defendant hired three recent law
school graduates to work in the same unit and location as Plaintiff. One, JohnRaphael (“J.R.”) Pichardo II, identified as male, while the other two, Roya Sadiqi
and Taylor Waites, identified as female. (Def. 56.1 ¶ 6). In theory, all four
attorneys were supervised by Kathleen Dix, an attorney in the Counsel’s Office
who was resident in Defendant’s Albany office. (Id. at ¶ 7). As a practical
matter, however, Plaintiff often advised and mentored the three more junior
attorneys because of his prior legal experience. (Pl. Dep. 74:2-4).
2.
The Claims of Workplace Harassment Against J.R. Pichardo 3
In April 21, 2016, Dix forwarded to DOL’s General Counsel Pico BenAmotz and Deputy Counsel Michael Paglialonga an email of the same date
attaching a memorandum from Roya Sadiqi concerning workplace
conditions — more specifically, abusive treatment that she and others had
experienced at the hands of J.R. Pichardo. (Def. 56.1 ¶¶ 15-16; Paglialonga
Decl., Ex. A (email and memorandum)). Sadiqi began by thanking Dix and
another supervising attorney, Harry Dunsker, for speaking with her about
3
In the remainder of this Opinion, the Court uses the bowdlerizing conventions of the
author/speaker when presenting statements with expletives.
3
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 4 of 36
these issues the preceding day. (Paglialonga Decl., Ex. A at 2). While
acknowledging her discomfort, Sadiqi observed that “[t]he circumstances have
worsened, and since it has come up I wanted to type out specifics.” (Id.).
However, Sadiqi made clear that she was not cataloguing every incident of
potential misconduct by Pichardo, but rather those that “have had a direct
impact on me and the work being done.” (Id.).
Much of Sadiqi’s memorandum depicted Pichardo as an unprofessional
boor, with little regard for his work or his co-workers except insofar as either
might aid in his professional advancement at DOL. (Paglialonga Decl., Ex. A at
2-5; see also id. at 5 (Sadiqi: “At a certain point I gave up trying to explain
myself with him and now tend to ignore a lot of what he says and does, but
most of it is still disrespectful, unprofessional and disruptive.”)). And indeed,
Pichardo appeared to be an equal-opportunity miscreant, with his particular
combination of disdain and laziness on display throughout the Labor and
Standards Unit. (See generally id. at 2-5). At points in her memorandum,
however, Sadiqi suggested that Pichardo’s misconduct was based on her (and
Waites’s) gender: among other things, Sadiqi recounted numerous occasions in
which Pichardo referred to her or Waites as a “bitch.” (Id. at 2). 4
4
Though Sadiqi recounted in her memorandum instances in which Pichardo had been
unprofessional to or regarding Plaintiff, she did not present such episodes as being
related to any protected characteristic of Plaintiff’s. Rather, Sadiqi reported that
Pichardo “had no respect for [Plaintiff] as a person let alone a supervising attorney.”
(Paglialonga Decl., Ex. A at 2). Sadiqi also recalled that Pichardo had “called [Plaintiff] a
few absurd names.” (Id.). From other documents in the litigation, the Court
understands these names to include “crack attorney” and/or “crack whore.” (Def. 56.1
¶ 29).
4
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 5 of 36
After reviewing Sadiqi’s memorandum, Paglialonga discussed her
concerns with Ben-Amotz and Dix; the three agreed that Paglialonga and Dix
would travel to Manhattan the following day, April 22, 2016, and meet with all
four attorneys. (Def. 56.1 ¶ 12). In the course of their visit, Dix and
Paglialonga counseled Pichardo regarding the conduct alleged in Sadiqi’s
memorandum, including his use of the epithet “bitch.” (Id. at ¶ 13; Paglialonga
Decl. ¶ 19). Sadiqi was moved into Plaintiff’s office until Pichardo could be
relocated, which happened in May 2016. (Def. 56.1 ¶¶ 14-15). Even then,
Pichardo’s abuse of Sadiqi continued; on the first business day after the
supervisors’ visit, April 25, 2016, Pichardo cornered Sadiqi in an attempt to get
her to reveal the substance of her communications to Dix and Paglialonga,
which conduct made Sadiqi “extremely uncomfortable.” (Id. at ¶ 15). Indeed,
Sadiqi was sufficiently disturbed by the encounter that Dix requested of BenAmotz and Paglialonga that Sadiqi be relocated immediately on a temporary
basis. (Id. at ¶ 16; Pl. 56.1 ¶ 16).
Plaintiff participated in a conference call with Dix and Paglialonga
regarding Pichardo on April 26, 2016. (Def. 56.1 ¶ 23). Though the call
participants dispute how the topic came up, they agree that the conversation
turned to the need to take more immediate action against Pichardo; Plaintiff
and Dix recalled Paglialonga stating that a protected characteristic, such as
race, was needed to file a complaint against Pichardo. (Compare Def. 56.1
¶ 23, with Pl. 56.1 ¶ 23). In response, Plaintiff volunteered for the first time
that Pichardo had made anti-Semitic comments about him. (Def. 56.1 ¶ 23;
5
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 6 of 36
see also Berg Decl., Ex. A at Requests for Admissions 3 and 4). 5 Paglialonga
agreed to file a complaint (the “DEOD Complaint”) on Plaintiff’s behalf with
Defendant’s Division of Equal Opportunity Development (“DEOD”), and did so
immediately after the call concluded. (Def. 56.1 ¶ 18; see also Paglialonga
Decl., Ex. D (DEOD Complaint)). The DEOD Complaint recited, in relevant
part, that Paglialonga had received reports from supervisees that “Mr. Pichardo
made Anti-Semitic and offensive remarks against Attorney Fredy Kaplan. Also,
[Pichardo] has had issues with co-worker Roya Sadiqi.” (Paglialonga Decl.,
Ex. D at 2).
3.
The DEOD Investigation into Pichardo and His Termination
The then-Director of DEOD, Selica Y. Grant, reviewed the DEOD
Complaint, determined that it warranted an investigation into Pichardo’s
comments to Plaintiff and his interactions with Sadiqi, and assigned to herself
responsibility for conducting the investigation. (Def. 56.1 ¶¶ 31-32, 36; see
generally Grant Decl.). As part of that investigation, on May 3 and 4, 2016,
Grant interviewed Dix, Sadiqi, Waites, and Plaintiff, and on May 16, 2016,
Grant interrogated Pichardo. (Def. 56.1 ¶ 37; see also Grant Decl. ¶ 15
(distinguishing interviews from interrogations)). As relevant to the instant
5
The precise comments are a matter of modest dispute among the parties. Plaintiff
recalls telling Paglialonga and Dix about (i) an incident in which Pichardo, while
discussing approaches to settlement negotiations with Plaintiff, observed that he
(Pichardo) “g[o]t to Jew them down” (Pl. Dep. 104:6-9, 135:21-25); and (ii) information
Plaintiff had learned from a Labor Standards Investigator about Pichardo referring to
Plaintiff outside of his presence as “a Jewish attorney or a Jew attorney” (id. at 113:2116:13, 136:2-6). Paglialonga recalled Plaintiff stating that Pichardo had called him a
“fucking Jew” and a “Jew lawyer.” (Paglialonga Dep. 34:20-35:11). Dix recalled Plaintiff
saying that Pichardo had called Plaintiff a “crack whore,” an “F’ing Jew,” and a third
comment she could not immediately recall. (Dix Dep. 50:21-24).
6
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 7 of 36
motion, Grant recalled that Plaintiff recounted information from a Labor
Standards Investigator that Pichardo had once referred to Plaintiff (outside of
Plaintiff’s presence) as a “f-ing Jew lawyer.” (Grant Decl. ¶ 17). However,
Grant recalled Plaintiff advising her during his interview that he had never
heard Pichardo make any anti-Semitic comments directly to him. (Id.). 6
At the conclusion of her investigation, Grant prepared at least two letters
regarding the investigation that were both dated August 16, 2016. (Grant
Decl., Ex. D-E). One letter was to Plaintiff; it has been referred to earlier in this
litigation as the “August 16 Letter,” and it stated in part that DEOD had found
“insufficient evidence to confirm that discrimination occurred under state or
federal law,” but that there “was a finding that a violation of NYSDOL policy
[occurred] and administrative action may be taken to address the situation.”
(Id., Ex. D). The second letter was to Pichardo; it recited that it was in
reference to the allegation “that you discriminated against Mr. Fredy Kaplan on
the basis of race and religion,” and it reported conclusions substantively
identical to those reported to Plaintiff. (Id., Ex. E).
6
In her deposition testimony, Grant was less precise: “I don’t think [Plaintiff] in the
interview stated that it was said directly to him. I think he said that he heard, he heard
it from someone else.” (Grant Dep. 52:15-18). However, her contemporaneous notes
reflect the following: “Fredy didn’t hear JR directly say any anti-Semitic remarks or call
the other female attorneys a bitch.” (Id. at 163:22-24).
Plaintiff recalls the interview differently in a few respects: For one thing, he recalls
clarifying that the comment he heard from the Labor Standards Investigator was not
“fucking Jew lawyer,” but rather “Jew lawyer.” (Pl. Dep. 155:11-19). Plaintiff also
recalled explaining to Grant the settlement discussions that he had with Pichardo in
which the “Jewing down” comment was made. (Id. at 155:19-23). When asked to
reconcile his testimony with Grant’s notes, Plaintiff explained that “[o]ther than what
was said in front [of] me, yes, that I did not — outside of the Jewing down comment that
was said in front of me, I didn’t hear any other comments.” (Id. at 158:10-13).
7
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 8 of 36
One week later, Grant prepared an internal memorandum dated
August 23, 2016, to Nathaalie Carey, DOL’s Deputy Commissioner of
Administration and CFO, in which Grant noted in pertinent part:
Through our investigation we determined probability
that Mr. Pichardo called/referred to Mr. Kaplan as a
“f*cking Jew,” a “Jew lawyer,” and a “crack whore.”
Witness statements not only confirmed that Mr.
Pichardo called Ms. Sadiqi and Ms. Waites a “bitch”
both directly and indirectly, but also revealed that Mr.
Pichardo used anti-semitic language in reference to Mr.
Kaplan. It was confirmed that Mr. Pichardo made more
than one inappropriate/derogatory statement about his
co-workers, did not conduct himself in a professional
manner during work hours and was not respectful of
his co-workers’ requests to refrain from using
derogatory language to/about them.
As a result, our office concluded that Mr. Pichardo
violated NYSDOL’s Workplace Harassment Policy (GA
Manual Topic No. 0254) and recommend administrative
action. The Policy states in part “[w]orkplace
harassment is any unwelcome verbal or physical
conduct that is severe or pervasive enough to create a
hostile work environment[.”]
(Grant Decl., Ex. F). 7
One month later, on September 23, 2016, Paglialonga was advised by
Grant of the results of the investigation and the options available, including
counseling or terminating Pichardo’s employment. (Def. 56.1 ¶ 46; see also
7
At her deposition, Grant explained the basis of her “probability” finding:
So that’s why I stated that it was probable that Mr. Pichardo called
Mr. Kaplan a fucking Jew lawyer and crack whore because the
witnesses cannot confirm they heard that exact language, but based
on a credibility analysis it was probable he said those things.
We confirmed that he definitely called these women bitches, both
directly and indirectly, and then made some other inappropriate
comments about other co-workers.
(Grant Dep. 74:1-10 (emphasis added)).
8
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 9 of 36
Grant Decl., Ex. G (email exchange)). Ben-Amotz, with Paglialonga’s
concurrence, decided in favor of termination. (Id. at ¶ 47; see also Grant Decl.,
Ex. G (October 5, 2016 email from Paglialonga to Grant discussing
contemplated termination)). On October 11, 2016, Paglialonga informed
Pichardo of the decision to terminate the latter’s employment and offered
Pichardo the option to resign in lieu of termination, which option Pichardo
accepted. (Def. 56.1 ¶ 48; see also Paglialonga Decl., Ex. F (Pichardo
resignation letter dated October 11, 2016)). 8
4.
The Dormin Investigation into Plaintiff and His Termination
It is here that the story takes a strange turn. According to Kathleen Dix,
at an event held in Albany on October 18, 2016, Plaintiff admitted to her that
he had “made up” his claim that Pichardo had made anti-Semitic comments
about him. (Def. 56.1 ¶ 49). Specifically, Dix recalled Plaintiff telling her:
“[Y]ou know I made that up, right? It turns out it was true.” (Id.). At his
deposition in this case, Plaintiff disputed that this exchange ever took place.
(Pl. Dep. 190:23-25).
Dix sat on this information for a period of months, sharing it only with
her supervisor and mentor, Harry Dunsker. Ultimately, after a dispute with
Plaintiff that involved the misallocation of time entries resulting from a coworker’s cat-sitting duties, Dix disclosed this information to Paglialonga and
Ben-Amotz on March 27, 2017. (Def. 56.1 ¶ 49; see also Paglialonga Decl.,
8
By this time, in September 2016, Plaintiff had been reassigned to work in DOL’s Bureau
of Public Works, where he was supervised by someone other than Dix. (Pl. 56.1 ¶ 74).
9
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 10 of 36
Ex. G (March 28, 2017 email from Dix confirming conversations)). According to
Palialonga, he and Ben-Amotz were concerned that the conduct ascribed to
Plaintiff — lying about a co-worker’s involvement in conduct that could, and
did, result in a disciplinary investigation — might constitute “serious
misconduct and potential fraud and illegality by a State employee.” (Def. 56.1
¶ 51). As a result, they referred Dix’s statement to the New York State Office of
the Inspector General, which declined to exercise jurisdiction over the matter.
(Id.). Paglialonga and Ben-Amotz then determined to conduct a second
investigation, this one focused on whether Plaintiff had falsely accused
Pichardo of making anti-Semitic slurs. (Id. at ¶ 52). In May 2017, they
referred the matter to John W. Dormin, a former Executive Director of
Defendant’s Office of Special Investigations and a former Assistant Deputy
Attorney General, who was then employed by the New York State Insurance
Fund; Dormin agreed to take on the matter. (Id. at ¶ 53; Dormin Decl. ¶ 9).
The ultimate scope of Dormin’s investigation expanded to encompass the
conduct of three people — Plaintiff, with a focus on “whether he had provided
invented details of fictitious exchanges with Pichardo as a basis for his
April 26, 2016 accusation that Pichardo made anti-Semitic comments” (Def.
56.1 ¶ 56), and Dix and Dunsker, with a focus on their decisions not to
disclose the October 2016 exchange between Dix and Plaintiff to their
supervisors (id. at ¶ 57). With the aid of an employee from Defendant’s Office
of Employee Relations, Dormin interviewed 15 witnesses and conducted key
10
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 11 of 36
word searches in approximately 3,400 emails. (Id. at ¶ 58). Interview subjects
included both Plaintiff and Dix. (Dormin Decl. ¶ 21).
Dormin’s investigation culminated in his Employee Misconduct
Investigation report, dated August 7, 2017 (the “Dormin Report” (Dormin Decl.,
Ex. A)). In relevant part, the Dormin Report concluded as follows:
Dormin found that Plaintiff had changed his story over
time. In his April 26, 2016 telephone conference with
Dix and Paglialonga, Plaintiff recalled Pichardo calling
him “Jew lawyer, fucking Jew, and crack-whore.” (Id.
at 5). However, when interviewed by Selica Grant,
Plaintiff stated “that he never heard Pichardo say
anything anti-Semitic in his presence,” and that he had
only heard the “fucking Jew lawyer” comment
secondhand. (Id.). And in his interview with Dormin,
Plaintiff offered a third version, in which Pichardo
supposedly stated to him that an opposing lawyer was
“jewing down — you know how jew lawyers are.” (Id.).
Upon further questioning by Dormin, Plaintiff admitted
that the source of this new information was in fact
Taylor Waites, and not his firsthand knowledge. (Id. at
6).
9
Plaintiff’s recollection of instances of anti-Semitic
comments by Pichardo came to light only after
Paglialonga had informed Plaintiff and Dix that
Pichardo’s comments to Sadiqi — which by then had
been the subject of one memorandum, several
meetings, and numerous emails — “were not enough for
more serious action such as discipline.” (Dormin
Report 3).
Plaintiff did not deny Dix’s report of the October 2016
conversation in its entirety. Rather, Plaintiff mused
“that he might have told Ms. Dix that ‘he wasn’t 100%
sure about the “Jew down” thing, but it turned out to
be true!’” (Id. at 5). 9
Plaintiff was not specifically confronted with this portion of the Dormin Report during
his deposition. However, he did testify that when asked by Dormin about Dix’s
recollection, he “vehemently denied” making the statement. (Pl. Dep. 203:17-22).
11
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 12 of 36
Dormin also found no support for Plaintiff’s claims. To
the contrary, Dormin interviewed the two employees
who sat outside of Pichardo’s office during the relevant
time period, another employee who sat in an adjoining
office, and several Labor Standards Division
investigators. None could recalling hearing Pichardo
make any anti-Semitic comments. (Id. at 6). 10
The only person (apart from Plaintiff) to recall Pichardo
making an anti-Semitic comment was Sadiqi, who
described the comment to Grant during the latter’s
investigation, but who did not contemporaneously
share this information with Plaintiff. (Id. at 4, 6). 11
10
Dormin found Plaintiff to be incredible during his
interview because (i) he offered inconsistent information
regarding
Pichardo’s
purportedly
anti-Semitic
comments; (ii) he declined to answer, or answered
evasively, certain questions; and (iii) his demeanor
changed during the interview, inasmuch as “[h]e looked
away from us, his speech became slower and he
appeared to be calculating answers rather than
reporting his memories.” (Id.).
Given Plaintiff’s evasiveness, Dormin’s interviews of
percipient witnesses in the Labor Standards Division,
and Dix’s account of Plaintiff’s ostensible recantation
(which Dormin found credible for a variety of reasons,
including the dangers to Dix’s own employment
See also Dormin Decl. ¶¶ 32-33:
I am aware that during the DEOD investigation, witnesses stated
that Pichardo had made anti-Semitic comments to Sadiqi, referring
to Plaintiff. As the report makes clear, our investigation included
interviewing all those whom the Plaintiff suggested had told him of
the anti-Semitic comments, and they all denied either hearing such
comments or communicating them to Plaintiff.
Our investigation, therefore, corroborated Plaintiff’s admission to
Dix that he invented the allegations. I concluded that whether
Pichardo had in fact made such comments had no bearing on
Plaintiff’s misconduct because Plaintiff did not have a factual basis
for his accusations when making his complaint against Pichardo
on April 26, 2016.
11
At one portion in the Dormin Report, Dormin relates that Sadiqi shared the information
with Plaintiff. However, Dormin appears to have meant to refer to Grant in this
attribution, given the remainder of the paragraph and the discussion of the Grant
interview two pages later. (See Dormin Report 4, 6).
12
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 13 of 36
occasioned by her reporting of it), Dormin “conclude[d]
that [Plaintiff] invented these allegations of anti-Semitic
remarks made by Mr. Pichardo. He made these false
allegations to increase pressure on management to
terminate Pichardo’s employment.” (Id. at 5). 12
Dix’s explanation for her reticence, however, was
complicated by her ill-advised decision to send “a
glowing and false letter of recommendation to the Bronx
County District Attorney on behalf of Mr. Pichardo.”
(Id.).
12
Dormin also investigated Dix’s and Dunsker’s decision
not to volunteer this information sooner. According to
Dix, after hearing from Plaintiff that he had “made up”
the anti-Semitism allegations against Pichardo, she
initially did nothing, in part because of other pressing
work obligations and in part because “[s]he understood
from Ms. Grant’s letter closing the DEOD investigation
that the anti-Semitic allegations were unfounded.” (Id.
at 4). Dix further explained that a later episode in which
Plaintiff and Waites had supposedly conspired to file
false time entries “convinced her that [Plaintiff] was
untrustworthy.” (Id.).
Shortly after her conversation with Plaintiff, Dix had
recounted the episode for her former supervisor,
Dunsker, who found the situation confusing, inasmuch
as it involved “an allegation of anti-Semitism that was
not found credible by DEOD, and Kaplan admitting that
he made up the allegations, but the allegations were
true.” (Id. at 4). Dunsker did not recall providing any
advice to Dix on this issue.
Plaintiff concedes that his interview with Dormin was marked by an abrupt change in
tone, but offers a less inculpatory explanation for that change. According to Plaintiff,
Dormin began the interview by not disclosing its purpose, instead questioning Plaintiff
on a variety of benign work-related topics. (See Pl. Dep. 200:16-203:10; see also id. at
202:22-23 (“Oh, you know, just following up on some stuff.”)). At some point, Dormin
brought up Dix’s report that Plaintiff “made these allegations up about Pichardo” (id. at
203:20), which Plaintiff denied; even then, Dormin brushed aside (at one point, literally
waving his hand) Plaintiff’s concerns that he should have an attorney present with him.
(Id. at 204:7-19). At some point, however, the tone of Dormin’s interview became
“accusatory.” (Id. at 204:25, 205:12).
13
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 14 of 36
Dormin concluded that Plaintiff’s conduct violated New York State law
and the New York Rules of Professional Conduct; he recommended that
Plaintiff’s position be terminated and that he be referred to the Appellate
Division for discipline. (Dormin Report 7-8). He concluded similarly that Dix’s
withholding of information and submission of a false recommendation letter
violated state law, professional responsibility codes, and DOL policy, and
recommended that she also be fired and referred for professional discipline.
(Id.). Dunsker’s conduct, however, was found not to warrant discipline. (Id.).
After obtaining approval from DOL’s Executive Deputy Commissioner,
Paglialonga and Ben-Amotz agreed to terminate Plaintiff’s employment. (Def.
56.1 ¶ 64). As with Pichardo, Plaintiff was offered the opportunity to resign in
lieu of termination in a meeting with Paglialonga and Ben-Amotz convened on
October 10, 2017. (Id. at ¶ 65). Plaintiff rejected the offer on October 16,
2017, and he was fired that day. (Id. at ¶¶ 66, 68). Dix resigned from her
position. (Id. at ¶ 67).
B.
Procedural History
Plaintiff filed his initial complaint in this action on April 24, 2018,
naming DOL and various individual defendants. (Dkt. #1). On August 21 and
28, 2018, the defendants requested leave to file motions to dismiss. (Dkt. #38,
41). On September 25, 2018, the Court held a status conference and granted
leave to Plaintiff to amend the complaint. (Dkt. #49). On October 29, 2018,
Plaintiff filed an amended complaint. (Dkt. #51).
14
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 15 of 36
On December 7, 2018, DOL and the individual defendants filed motions
to dismiss the amended complaint and supporting declarations. (Dkt. #58-63).
On January 7, 2019, Plaintiff filed his combined opposition to the motions to
dismiss (Dkt. #64), and on January 18, 2019, the defendants filed their
respective reply submissions (Dkt. #65-67).
The Court resolved the motions by Opinion and Order dated July 19.
2019. (Dkt. #70). See generally Kaplan I, 2019 WL 3252911. In brief, the
Court dismissed Plaintiff’s state and local law claims against the defendants for
lack of jurisdiction pursuant to the Eleventh Amendment. Kaplan I, 2019 WL
3252911, at *3-5. The Court also dismissed Plaintiff’s Title VII claims against
Defendant Roberta Reardon, which claims Plaintiff had withdrawn. Id. at *6.
The Court allowed to proceed to discovery Plaintiff’s Title VII claims against
Defendant DOL for hostile work environment and retaliation. Id. at *6-11.
After a protracted period of discovery, Defendant DOL filed its motion for
summary judgment and supporting papers on August 18, 2020. (Dkt. #11724). Plaintiff filed his opposition papers on September 18, 2020 (Dkt. #127),
and briefing concluded with the submission of Defendant’s reply papers on
October 2, 2020 (Dkt. #132-33). On March 5, 2021, Plaintiff sought leave to
reopen discovery based on newly-acquired information. (Dkt. #135). The
Court sought and received an in camera submission from Plaintiff supporting
his request on March 9, 2021. (Dkt. #136-37). After reviewing the in camera
submission, the Court determined not to reopen discovery, concluding that the
information proffered in Plaintiff’s submission would not impact the Court’s
15
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 16 of 36
decision on the pending motion. The Court denies this motion without
prejudice, however, to its renewal in connection with the scheduling of a trial
date.
DISCUSSION
A.
Summary Judgment Under Federal Rule of Civil Procedure 56
A “court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). 13 A genuine dispute exists where “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.”
Fireman’s Fund Ins. Co. v. Great Am. Ins. Co. of N.Y., 822 F.3d 620, 631 n.12
(2d Cir. 2016) (internal quotation marks and citation omitted). A fact is
“material” if it “might affect the outcome of the suit under the governing law[.]”
Anderson, 477 U.S. at 248.
While the moving party “bears the initial burden of demonstrating ‘the
absence of a genuine issue of material fact,’” ICC Chem. Corp. v. Nordic Tankers
Trading a/s, 186 F. Supp. 3d 296, 301 (S.D.N.Y. 2016) (quoting Celotex, 477
U.S. at 323), the party opposing summary judgment “must do more than
13
The 2010 Amendments to the Federal Rules of Civil Procedure revised the summary
judgment standard from a genuine “issue” of material fact to a genuine “dispute” of
material fact. See Fed. R. Civ. P. 56, advisory comm. notes (2010 Amendments) (noting
that the amendment to “[s]ubdivision (a) … chang[es] only one word — genuine ‘issue’
becomes genuine ‘dispute.’ ‘Dispute’ better reflects the focus of a summary-judgment
determination.”). This Court uses the post-amendment standard, but continues to be
guided by pre-amendment Supreme Court and Second Circuit precedent that refer to
“genuine issues of material fact.”
16
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 17 of 36
simply show that there is some metaphysical doubt as to the material facts,”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see
also Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001). Rather, the nonmoving party “‘must set forth specific facts showing that there is a genuine
issue for trial.’” Parks Real Estate Purchasing Grp. v. St. Paul Fire & Marine Ins.
Co., 472 F.3d 33, 41 (2d Cir. 2006) (quoting Fed. R. Civ. P. 56(e)).
“When ruling on a summary judgment motion, the district court must
construe the facts in the light most favorable to the non-moving party and
must resolve all ambiguities and draw all reasonable inferences against the
movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.
2003). In considering “what may reasonably be inferred” from evidence in the
record, however, the court should not accord the non-moving party the benefit
of “unreasonable inferences, or inferences at war with undisputed facts.” Berk
v. St. Vincent’s Hosp. & Med. Ctr., 380 F. Supp. 2d 334, 342 (S.D.N.Y. 2005)
(quoting County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1318 (2d
Cir. 1990)). Moreover, “[t]hough [the Court] must accept as true the allegations
of the party defending against the summary judgment motion, … conclusory
statements, conjecture, or speculation by the party resisting the motion will not
defeat summary judgment.” Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.
1996) (internal citation omitted) (citing Matsushita, 475 U.S. at 587; Wyler v.
United States, 725 F.2d 156, 160 (2d Cir. 1983)); accord Hicks v. Baines, 593
F.3d 159, 166 (2d Cir. 2010).
17
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 18 of 36
B.
The Court Grants Summary Judgment in Favor of Defendant as to
Plaintiff’s Hostile Work Environment Claim Under Title VII
1.
Applicable Law
Title VII provides that “it shall be an unlawful employment practice for an
employer ... to discharge any individual, or otherwise to discriminate against
any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color, religion, sex,
or national origin.” 42 U.S.C. § 2000e-2(a)(1). “When the workplace is
permeated with discriminatory intimidation, ridicule, and insult [based on,
inter alia, religion or ethnicity] that is sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive work
environment, Title VII is violated.” Schiano v. Quality Payroll Sys., Inc., 445
F.3d 597, 604 (2d Cir. 2006) (quoting Harris v. Forklift Sys., Inc., 501 U.S. 17,
21 (1993)) (alteration added). In order to prove the existence of a hostile work
environment, a plaintiff must show both (i) that the alleged behavior was
“severe or pervasive enough to create an objectively hostile or abusive work
environment”; and (ii) that the plaintiff “subjectively perceive[d] that
environment to be abusive.” Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir.
2009) (quoting Feingold v. New York, 366 F.3d 138, 150 (2d Cir. 2004)); accord
Fox v. Costco Wholesale Corp., 918 F.3d 65, 74 (2d Cir. 2019).
A work environment is “abusive” when harassment has reached a certain
qualitative level that is “sufficiently severe or pervasive [so as] to alter the
conditions of the victim’s employment.” Raniola v. Bratton, 243 F.3d 610, 617
18
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 19 of 36
(2d Cir. 2001) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67
(1986)). “On a motion for summary judgment, the question for the court is
whether a reasonable factfinder could conclude, considering all the
circumstances, that ‘the harassment is of such quality or quantity that a
reasonable employee would find the conditions of her employment altered for
the worse.’” Schiano, 445 F.3d at 600 (emphasis in original) (quoting Whidbee
v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000)). In making
this determination, the court, assessing the totality of the circumstances,
examines “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.”
Cristofaro v. Lake Shore Cent. Sch. Dist., 473 F. App’x 28, 30 (2d Cir. 2012)
(summary order) (quoting Pucino v. Verizon Wireless Commc’ns, Inc., 618 F.3d
112, 119 (2d Cir. 2010)).
“The incidents complained of ‘must be more than episodic; they must be
sufficiently continuous and concerted in order to be deemed pervasive.’”
Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014) (quoting Alfano v.
Costello, 294 F.3d 365, 374 (2d Cir. 2002)); see also Alfano, 294 F.3d at 380
(concluding that proffered incidents of harassment “were too few, too separate
in time, and too mild ... to create an abusive working environment”); see
generally Agosto v. N.Y.C. Dep’t of Educ., 982 F.3d 86, 102 (2d Cir. 2020).
While a single incident can suffice to substantiate a claim of hostile work
environment, such an incident would have to be “extraordinarily severe.”
19
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 20 of 36
Desardouin v. City of Rochester, 708 F.3d 102, 105 (2d Cir. 2013).
Furthermore, the plaintiff “must demonstrate that the conduct occurred
because of” his protected status — here, Plaintiff’s religion and ethnicity — and
also that a “specific basis exists for imputing the conduct that created the
hostile environment to the employer.” Petrosino v. Bell Atl., 385 F.3d 210, 221
(2d Cir. 2004).
2.
Analysis
At the time of the motion to dismiss, the Court was presented with the
following allegations that Plaintiff had been subjected to a hostile work
environment:
Plaintiff argues that Pichardo’s anti-Semitic statements,
“misogynistic rants,” and refusal to follow Plaintiff’s
instructions and orders, taken together, meet the
standard set by the courts for a hostile work
environment under Title VII. While Kaplan “personally
overheard” Pichardo talk about “Jewing someone
down,” he also became aware of “incessant anti-Semitic
comments [made] out[side] of his presence” by
Pichardo. Furthermore, Plaintiff states that he had
received a letter from DOL confirming that Pichardo had
engaged in anti-Semitic behavior, but nonetheless
declining to discipline him. Plaintiff states that these
facts demonstrate that he faced conduct severe or
pervasive enough that a reasonable person would find
it hostile or abusive, and there is a basis for imputing
this conduct to DOL.
Kaplan I, 2019 WL 3252911, at *8. Accepting the well-pleaded allegations in
Plaintiff’s Amended Complaint, and unable to consider Grant’s August 16,
2016 letter to Plaintiff, the Court concluded that Plaintiff had “adequately
alleged that Pichardo ‘engage[d] in a steady barrage of opprobrious racial
comments.’” Id. (quoting Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.
20
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 21 of 36
1997)). The Court made clear, however, that Plaintiff was not guaranteed a
trial on this claim: “The Court observes that many of Plaintiff’s claims seem to
hinge on the existence of a letter from DOL that Plaintiff argues differs from the
August 16 Letter. If this letter is not produced in discovery, the Court is
skeptical that Plaintiff’s claim can survive further motion practice.” Id. at *11.
In fact, as Defendant suspected, there was no letter apart from the
August 16 Letter, and that letter did not, as Plaintiff alleged, condone any antiSemitic statements by Pichardo. (Compare Def. 56.1 ¶ 43 (“Plaintiff never
received a communication from DOL ‘confirming that Mr. Pichardo had made
comments that were both anti-Semitic and created a hostile work environment,
but, indicating said behavior is acceptable at the DOL, no corrective action
would be taken [sic].’” (alteration in original)), with Pl. 56.1 ¶ 43 (“Undisputed
for purposes of the instant motion.”)). The August 16 Letter concluded merely
that DEOD had found “insufficient evidence” of a violation of state or federal
law, but sufficient evidence of a violation of DOL policy. (Grant Decl., Ex. D).
And as noted, given differences in recollection among the witnesses, Grant’s
internal memorandum to her supervisor recited only “probability” that Pichardo
made particular anti-Semitic comments about Plaintiff. (Id., Ex. F).
The evidence of actionable conduct by Pichardo against Plaintiff was also
far less than alleged in the Complaint. When considering his time at DOL,
Plaintiff recalled a single conversation in his presence in which Pichardo had,
in the course of discussing negotiating tactics, “used the term, like I get to Jew
them down.” (Def. 56.1 ¶ 21). After discussing the comment with Plaintiff,
21
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 22 of 36
Pichardo apologized for it and never repeated it, in substance or in sentiment,
in Plaintiff’s presence. (Id. at ¶¶ 22, 25). Even after the exchange, Plaintiff was
unperturbed; Plaintiff “didn’t think of [Pichardo] as he hates Jews. I am
thinking of him, he is ignorant, and he doesn’t know.” (Id. at ¶ 24). During
this same general time frame, Plaintiff learned from a Labor Standards
Investigator that Pichardo had referred to Plaintiff outside of his presence as “a
Jewish attorney or a Jew attorney.” (Id. at ¶ 26; see also Pl. Dep. 116:10-13
(“And it was more like, you know, yeah, I heard him refer to you as a Jew
attorney, or the fact that you are Jewish as an attorney, or something like
that.”)). 14 Here, again, Plaintiff was unaffected by the information: “And I was
like, whatever.” (Def. 56.1 ¶ 26).
After the DEOD Complaint was filed on Plaintiff’s behalf, and while
Grant’s investigation was pending, Plaintiff learned from Sadiqi that Pichardo
had referred to him as a “crack attorney” or a “crack whore,” neither of which
implicated a protected characteristic of Plaintiff’s. (Def. 56.1 ¶ 29). Sadiqi also
mentioned an incident in which Pichardo had stated, outside of Plaintiff’s
presence, that Plaintiff — who has tattoos of Buddha on his forearm —
“need[ed] to choose between being Jewish or Buddhist.” (Id. at ¶ 27). As with
prior Pichardo comments, Plaintiff found them more indicative of Pichardo’s
idiocy than offensive. (Id. at ¶ 28 (“Again, it was an eye roll for me, basically.
14
The Court has no admissible evidence that Pichardo ever made such a comment.
However, inasmuch as the parties discuss Plaintiff’s contemporaneous receipt of this
hearsay statement as a possible basis for Plaintiff’s hostile work environment claim, the
Court considers it as well.
22
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 23 of 36
Like he is an idiot, is basically how I felt.”)). And while Plaintiff did perceive the
“Jew them down” and “Jew attorney” comments as anti-Semitic, he did not
consider Pichardo’s “make a choice” comment to be anti-Semitic, inasmuch as
it was a challenge to, rather than discrimination based on, one’s religious
beliefs. (Pl. Dep. 191:18-23, 192:22-194:3, 194:15-17). 15
Pichardo’s comments, while plainly inappropriate, “were too few, too
separate in time, and too mild ... to create an abusive working environment.”
Alfano, 294 F.3d at 380; see also Langlois v. Hartford Bd. of Educ., 831 F. App’x
548, 552 (2d Cir. 2020) (summary order) (upholding grant of summary
judgment after concluding that “[t]he few isolated comments allegedly made by
the school principal, mentioned previously, do not meet [the hostile work
environment] threshold”); Milord-Francois v. N.Y.S. Off. of Medicaid Inspector
Gen., No. 19 Civ. 179 (LJL), 2020 WL 5659438, at *21 (S.D.N.Y. Sept. 23, 2020)
(granting summary judgment in favor of defense where hostile work
15
Long after Pichardo had left Defendant’s employ, during the course of Dormin’s
investigation into Plaintiff, Dix related to Dormin that Sadiqi had stated that Pichardo
made anti-Semitic remarks “on a daily basis,” although Sadiqi apparently could
remember none of these remarks. Plaintiff understandably sets great store by this
information in opposing Defendant’s motion for summary judgment. (Pl. Opp. 18). The
Court will not consider it in assessing Plaintiff’s hostile work environment claims. To
begin, Sadiqi was not deposed in this litigation, and there is no admissible evidence that
she made the statement. Nor was Dix questioned about this statement during her
deposition in this case. (See generally Dix Dep.). Most important, Plaintiff learned of
the statement, if at all, after Pichardo had left DOL. It cannot therefore substantiate his
hostile work environment claim.
Plaintiff also cites an incident in which Pichardo is alleged to have taken approximately
20 case files from his office that Plaintiff needed for a trial. (Pl. 56.1 ¶ 73). The Court
has received no admissible evidence that Pichardo took the files; Plaintiff recalls Sadiqi
telling him that Pichardo had taken them, and the Court has no statement from Sadiqi,
Pichardo, or anyone else with firsthand knowledge. (Pl. Dep. 88:20-21). Even were the
Court to credit that the theft occurred, this one-time incident, untethered from any
allegations of discriminatory intent, does not support, alone or in tandem with the other
evidence, Plaintiff’s hostile work environment claim.
23
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 24 of 36
environment claim was predicated on a handful of incidents involving stray
comments by a single subordinate employee); Obi v. Westchester Med. Reg’l
Physician Servs., P.C., No. 19 Civ. 3022 (VB), 2020 WL 1434159, at *8 (S.D.N.Y.
Mar. 23, 2020) (“Three comments allegedly made to plaintiff — that she should
keep quiet because of her race; that she could not ask a white, Jewish doctor
for assistance; and that as a ‘black African,’ she should go back to her ‘poor
country’ — objectively rise to the level of racial hostility, but are not severe or
pervasive enough to sustain a hostile work environment claim.”); cf. Aulicino v.
N.Y.C. Dep’t of Homeless Servs., 580 F.3d 73, 83 (2d Cir. 2009) (“For racist
comments, slurs, and jokes to constitute a hostile work environment, ... there
must be more than a few isolated incidents of racial enmity.” (quotation marks
omitted)); Feingold, 366 F.3d at 150 (reversing grant of summary judgment for
hostile work environment claim that involved mocking of Jewish-sounding
names, comments about Jewish lawyers, and referring to “Jewish pig food”). 16
Moreover, none of Pichardo’s comments was physically threatening or
humiliating. And Plaintiff’s measured reactions to Pichardo’s comments make
16
Plaintiff’s own deposition testimony confirms the Court’s conclusion:
Q.
Well, did Roya [Sadiqi] … ever tell you that Pichardo was
making nonstop anti-Semitic comments?
A.
No.
Q.
Did Taylor [Waites] ever tell you that?
A.
No.
Q.
Did anybody ever tell you that?
A.
No.
(Pl. Dep. 139:10-17).
24
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 25 of 36
plain that such comments did not unreasonably interfere with Plaintiff’s work
performance and, further, that Plaintiff did not “subjectively perceive that
environment to be abusive.” Alfano, 294 F.3d at 374. 17
Even if Plaintiff had raised a genuine dispute regarding a hostile work
environment — and he has not — Plaintiff failed to establish a basis for
imputing liability to Defendant. Under Title VII, an employer is liable for the
harassing conduct of a non-supervisory employee only if it either “failed to
provide a reasonable avenue for complaint” or if “it knew, or in the exercise of
reasonable care should have known, about the harassment yet failed to take
appropriate remedial action.” Duch, 588 F.3d at 762, cited in Legg v. Ulster
Cty., 979 F.3d 101, 115 (2d Cir. 2020); see generally Wiercinski v. Mangia 57,
Inc., 787 F.3d 106, 113 (2d Cir. 2015). Plaintiff concedes that Pichardo was a
non-supervisory employee. (Def. 56.1 ¶ 8).
During the relevant time period, Defendant maintained both a Workplace
Harassment Policy (Grant Decl., Ex. A) and a Non-Discrimination Policy (id.,
Ex. B). And as information regarding Pichardo’s discriminatory conduct was
transmitted to the appropriate managers, the policies were put to use. With
particular respect to Plaintiff, Paglialonga drafted the DEOD Complaint on
Plaintiff’s behalf on April 26, 2016, immediately after Plaintiff communicated to
17
Plaintiff suggests that the Court should find the requisite severity and pervasiveness
from Grant’s internal memorandum, which stated that Pichardo’s conduct had violated
DOL’s Workplace Harassment Policy, which itself includes the “severe and pervasive”
language. (Pl. Opp. 18-19; Grant Decl., Ex. F). Significantly, however, that
memorandum also included discussion of Grant’s substantiated findings regarding
Pichardo’s treatment of his female co-workers. (Grant Decl., Ex. F).
25
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 26 of 36
him Pichardo’s anti-Semitic statements. (Paglialonga Decl., Ex. D). A few
weeks later, Grant reviewed the complaint and commenced an investigation.
(Grant Decl. ¶ 13). The following month, Grant interviewed Plaintiff, Pichardo,
and other percipient witnesses to Plaintiff’s allegations. (Id. at ¶¶ 14-19). By
that time, Pichardo had been relocated to the far end of the Varick Street office.
(Def. 56.1 ¶ 14). After reviewing Grant’s report, Paglialonga and Ben-Amotz
obtained authorization to terminate Pichardo’s employment; presented with the
options of resignation or termination, Pichardo resigned on October 11, 2016.
(Id. at ¶ 48). Thus, Defendant maintained a reasonable avenue for complaints
and took appropriate remedial action upon receiving Plaintiff’s complaint. For
this independent reason, Plaintiff’s hostile work environment claim fails.
C.
The Court Denies Summary Judgment as to Plaintiff’s Claim of
Retaliation
As suggested by the Factual Background, the Court finds more
perplexing the events that followed Pichardo’s termination. No one — including
the two investigators, Grant and Dormin — disputes that Pichardo made antiSemitic comments regarding Plaintiff, though they may quibble about the
precise comments. No one, except perhaps Kathleen Dix, believes that
Pichardo’s firing was based on flawed (or, worse yet, fabricated) premises. And
yet Plaintiff was fired, supposedly for making up allegations of anti-Semitic
statements by Pichardo that resulted in Pichardo’s firing. On the unique
factual circumstances of this case, the Court would likely have done what
Defendant did, which is to convene an independent investigation into Dix’s
claims of Plaintiff’s recantation. But on these same unique factual
26
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 27 of 36
circumstances, the Court finds that Plaintiff has identified a genuine dispute of
material fact regarding whether the reasons given for his termination are
pretextual.
1.
Applicable Law
Retaliation claims under Title VII are analyzed using the familiar burdenshifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), for disparate-treatment discrimination cases. See Reynolds v. Barrett,
685 F.3d 193, 202 (2d Cir. 2012); Cruz v. Coach Stores, Inc., 202 F.3d 560, 566
(2d Cir. 2000). In particular, a Title VII “plaintiff alleging retaliation bears a
similar burden [to a plaintiff alleging sex discrimination] to establish a prima
facie case, which requires evidence ‘showing that [i] [he] engaged in protected
activity, [ii] the employer was aware of this activity, [iii] [he] was subjected to an
adverse employment action, and [iv] a causal connection exists between the
adverse action and her protected activity.’” Carter v. Autozoners, LLC, 807 F.
App’x 131, 132 (2d Cir. 2020) (summary order) (quoting Bentley v. Autozoners,
LLC, 935 F.3d 76, 88 (2d Cir. 2019)). An “adverse employment action” in the
retaliation context is broader than for discrimination claims: “The proper
question for a retaliation claim is whether the alleged adverse action to which
the plaintiff was subjected could well have dissuaded a reasonable employee in
his position from complaining of unlawful discrimination.” Davis-Garett v.
Urban Outfitters, Inc., 921 F.3d 30, 44 (2d Cir. 2019) (alterations and
quotations omitted).
27
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 28 of 36
“A causal connection [between the protected activity and the adverse
action] can be shown either [i] 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 [ii] directly, through evidence of retaliatory
animus directed against the plaintiff by the defendant.” Natofsky v. City of
New York, 921 F.3d 337, 353 (2d Cir. 2019); Hicks v. Baines, 593 F.3d 159,
170 (2d Cir. 2010); Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir.
2000).
If the plaintiff makes out a prima facie case, a rebuttable presumption of
retaliation arises, and the burden then shifts to the defendant to articulate a
legitimate, non-retaliatory reason for the adverse action. See Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). If the employer
succeeds, the presumption of retaliation is rebutted, and the burden shifts
back to the plaintiff to “point to evidence that would be sufficient to permit a
rational factfinder to conclude that the employer’s explanation is merely a
pretext for impermissible retaliation.” Treglia v. Town of Manlius, 313 F.3d
713, 721 (2d Cir. 2002) (quoting Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d
Cir. 2001)); accord Miceli v. Mehr, 830 F. App’x 63, 64-65 (2d Cir. 2020)
(summary order); Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 179 (2d
Cir. 2005).
Finally, a “plaintiff alleging retaliation in violation of Title VII must show
that retaliation was a ‘but-for’ cause of the adverse action, and not simply a
28
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 29 of 36
‘substantial’ or ‘motivating’ factor in the employer’s decision.” Zann Kwan v.
Andalex Group LLC, 737 F.3d 834, 835 (2d Cir. 2013) (citing Univ. of Texas Sw.
Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013)). In this regard, the Second
Circuit teaches that “‘but-for’ causation does not require proof that retaliation
was the only cause of the employer’s action, ... only that the adverse action
would not have occurred in the absence of the retaliatory motive.” Id. at 846.
The plaintiff can make such a showing “by demonstrating weaknesses,
implausibilities, inconsistencies, or contradictions in the employer’s proffered
legitimate, nonretaliatory reasons for its action.” Toombs v. N.Y.C. Housing
Auth., 830 F. App’x 665, 668 (2d Cir. 2020) (summary order) (quoting Kwan,
737 F.3d at 846). 18
2.
A Genuine Dispute of Fact Exists Concerning Whether
Plaintiff’s Termination Was Retaliatory
Before addressing Defendant’s arguments for summary judgment, the
Court addresses the parties’ antecedent dispute concerning the specific
protected conduct that Plaintiff alleges is the basis for his retaliation claims. In
his opposition papers, Plaintiff asserts that he was retaliated against by
Defendant for speaking out about both sexist and anti-Semitic comments by
Pichardo. (See Pl. Opp. 26 (“Plaintiff’s claim concerning Pichardo’s anti-Semitic
and sexist behavior [is] one and the same.”)). But as Defendant notes (Def.
18
Plaintiff does not allege, and the Court accordingly does not discuss, whether Defendant
could be liable under a “cat’s paw” theory of liability. See generally Menaker v. Hofstra
Univ., 935 F.3d 20, 38 (2d Cir. 2019); Vasquez v. Empress Ambulance Serv., Inc., 835
F.3d 267, 274-75 (2d Cir. 2016).
29
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 30 of 36
Br. 13, 25), Plaintiff claimed a narrower class of protected activity during his
deposition:
Q.
Are you claiming in this lawsuit that DOL
retaliated against you for anything other than
your complaint that Pichardo made anti-Semitic
comments about you?
A.
Am I making claims other than that? No.
***
Q.
In other words, your retaliation claim is based on
the fact that you made a complaint that Pichardo
made anti-Semitic or disparaging comments
about you on the basis of your religion; is that
right?
A.
Yes.
Q.
And nothing else?
A.
Yes. Correct.
(Pl. Dep. 240:17-22, 240:25-241:8). Accordingly, the Court will consider only
Plaintiff’s complaints to his supervisors about anti-Semitic statements
attributed to Pichardo.
Defendant focuses its arguments on the issue of causation, claiming first
that any temporal link is too distant (Def. Br. 22-23), and second that an
intervening event broke the causal chain (id. at 23-24). In arguing the former
claim, Defendant cites to the Court’s discussion of the 18-month gap between
Plaintiff’s complaint and his termination in Kaplan I. (Id. at 23). In so doing,
however, Defendant omits the more germane portion of the Court’s analysis:
However, the Court finds that Plaintiff has plausibly
alleged a retaliatory motive in a different manner. “A
plaintiff may assert causal connection through
allegations of retaliatory animus, or else by
30
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 31 of 36
circumstantial evidence, such as close temporal
proximity between the protected activity and the
retaliatory action.” Perry v. State of N.Y. Dep’t of Labor,
No. 08 Civ. 4610 (PKC), 2009 WL 2575713, at *6
(S.D.N.Y. Aug. 20, 2009), aff’d sub nom. Perry v. N.Y.
Dep’t of Labor, 398 F. App’x 628 (2d Cir. 2010)
(summary order). Here, Plaintiff has alleged that he
made a complaint based on discrimination (Am. Compl.
¶¶ 36-37); that DOL accepted that complaint as true (id.
at ¶ 40); and that DOL then accused him of fabricating
a complaint that it had already accepted as true in order
to justify its termination of his employment (id. at
¶¶ 44-52). The Court must accept these allegations as
true at this stage of the litigation. Accordingly, an
assertion of close temporal proximity alone is
unnecessary, because here DOL is alleged to have
reversed its position regarding a complaint it had already
accepted as true. This offers a stronger circumstantial
case for a pretextual retaliatory firing than mere temporal
proximity. If Plaintiff’s version of events were accurate,
DOL, with full awareness of the truth of his complaints,
fired him on the pretext that he fabricated the
complaints. The Court concludes that these allegations
plausibly state a retaliatory motive for Plaintiff’s
termination.
Plaintiff’s retaliation claim therefore
survives.
Kaplan I, 2019 WL 3252911, at *10 (emphasis added). Though the Court’s
analysis of Plaintiff’s claims is now undertaken pursuant to Rule 56, the fact
remains that Plaintiff does not need to rely on, and is not relying on, temporal
proximity to demonstrate his prima facie case. Rather, Plaintiff is claiming
that, irrespective of its timing, his termination was the but-for consequence of
him engaging in the protected activity of complaining about Pichardo’s antiSemitic conduct. The record in this case would seem to bear that out. Plaintiff
was fired for speaking out against Pichardo. Whether Plaintiff’s statements
were factually accurate comes into play at a different part of the analysis.
31
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 32 of 36
In response, Defendant argues that the intervening event of the Dormin
investigation vitiates Plaintiff’s causation argument. (Def. Br. 23). And it is
true that courts have recognized that an intervening event can break the
causal chain. See Rossbach v. Montefiore Medical Ctr., No. 19 Civ. 5758 (DLC),
2021 WL 930710, at *6 (S.D.N.Y. Mar. 11, 2021) (“But even when the protected
activity is followed closely in time by an adverse employment action, an
intervening event between the protected activity and the adverse employment
action may defeat an inference of causation.” (collecting cases)); see also
Brennan v. Legal Aid Soc’y, No. 19 Civ. 7756 (VSB), 2020 WL 6875059, at *5
(S.D.N.Y. Nov. 23, 2020) (collecting cases). But these cases are not relevant to
the analysis here, where (i) Plaintiff is not relying on temporal proximity to
satisfy the causation element and (ii) the putative intervening event is itself
inextricably intertwined with the protected activity.
For purposes of this motion, the Court finds that Plaintiff has satisfied
his burden of demonstrating a prima facie case of retaliation under Title VII:
Plaintiff engaged in protected conduct in reporting Pichardo’s anti-Semitic
statements to Dix, Paglialonga, and others; his employers were aware of his
conduct; he suffered an adverse employment action in the form of the
termination of his employment; and his protected conduct was the but-for
cause of his termination. That said, the Court also finds that Defendant has
met its burden of presenting a non-pretextual reason for Plaintiff’s firing: A
32
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 33 of 36
subsequent, independent investigation concluded that Plaintiff had fabricated
his claims of personal knowledge that Pichardo had used anti-Semitic slurs. 19
The issue devolves to whether Plaintiff has identified a genuine issue of
fact as to whether the reason given for his termination, i.e., information
obtained during the Dormin investigation, was pretextual. In finding that
Plaintiff has, the Court wishes to make clear several points about what it is not
saying. The Court is not saying that an independent investigation cannot serve
as an intervening cause or a non-retaliatory explanation under the McDonnell
Douglas test. The Court is also not saying that a plaintiff can forestall
summary judgment merely by disputing the results of an internal investigation.
And the Court is not here opining on the relative credibility of witnesses or the
quality of either of the Grant or Dormin investigations.
On the singular facts of this case, however, the Court is constrained to
find a genuine dispute of fact regarding whether the proffered non-retaliatory
basis for Plaintiff’s termination was pretextual. In large measure, this is
because the Court credits, as it must, Plaintiff’s sworn testimony in this case.
See Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d Cir.
2011) (noting that “a district court generally ‘should not weigh evidence or
assess the credibility of witnesses’” (quoting Hayes v. N.Y.C. Dep’t of Corr., 84
F.3d 614, 619 (2d Cir. 1996))). Plaintiff asseverates that the conversation with
19
Defendant weakly suggests that Plaintiff’s termination was also related to certain illdefined “performance” issues. (Def. Br. 24; Def. 56.1 ¶ 64). The Court does not find
sufficient evidence in the record to find this suggestion to suffice as a second nonretaliatory basis for Plaintiff’s termination. As Plaintiff noted, he had not been given
notice of any of these issues prior to his termination. (Pl. Dep. 223:5-20).
33
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 34 of 36
Dix that led to the Dormin investigation and his consequent firing simply did
not happen. Plaintiff also maintains that he was consistent in his statements
to Paglialonga and Dix, and later to Grant, and that in each case he
communicated to them anti-Semitic statements made by Pichardo of which he
had both firsthand and secondhand knowledge. Grant concluded in the course
of her investigation — and, tellingly, continues to believe today — that such
statements were made, and relied on witnesses other than Plaintiff to confirm
these conclusions. (Grant Dep. 75:6-76:3, 76:22-77:13 (confirming that
witnesses other than Plaintiff had related that Pichardo had made anti-Semitic
comments about Plaintiff); see also id. at 73:5-74:6, 74:12-75:4, 142:5-19,
150:17-151:9 (same); id. at 150:11-16 (Grant unable to recall whether Plaintiff
himself confirmed that such statements were made)). In so doing, Grant
confirmed at least half of what Plaintiff had related to Paglialonga and Dix. 20
The Dormin investigation focused not on whether Plaintiff had been
accurate in reporting that Pichardo had made anti-Semitic comments to
Plaintiff, but rather the broader issue of whether “Pichardo made anti-Semitic
and other derogatory comments about [Plaintiff].” (Dormin Report 2 (alteration
and emphasis added)). The Court continues to have difficulty reconciling
Grant’s conclusions that Pichardo made anti-Semitic remarks (which, it bears
repeating, were substantiated by sources other than Plaintiff), with Dormin’s
20
And, crediting Plaintiff’s deposition testimony at this stage, Grant simply misperceived
Plaintiff’s statements to her that he had firsthand and secondhand knowledge of antiSemitic statements by Pichardo, and thus confirmed the latter category but not the
former category.
34
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 35 of 36
conclusion that only one slur was made by Pichardo, and that Plaintiff was not
made aware of the slur contemporaneously with either its issuance or Grant’s
investigation into it. There is also merit to Plaintiff’s argument that Dormin
discredited him simply for not knowing the name of the relevant Labor
Standards Investigator. And, if Plaintiff’s testimony is to be believed, any
change in tone during Dormin’s interview of him was attributable to Dormin’s
“gotcha” style of interviewing rather than Plaintiff’s realization that he had been
caught lying.
It is also significant to the Court that Dormin found “[m]ost compelling”
Kathleen Dix’s account of Plaintiff’s purported recantation. Despite the clear
findings of Grant’s investigation, Dix appears to believe that Pichardo got a raw
deal from DOL. (Dix Dep. 36:23-37:22, 61:5-63:9, 159:4-11 (discussing belief
and/or disbelief in truth of allegations against Pichardo); see also id. at 97:2123 (acknowledging “favorable recollections of Mr. Pichardo”)). Indeed, despite
the execrable conduct by Pichardo outlined earlier in this Opinion, Dix chose to
send what Dormin referred to as a “glowing and false letter of recommendation
to the Bronx Count District Attorney on behalf of Mr. Pichardo.” (Dormin
Report 5; see also Pl. 56.1 ¶ 80; Dix Dep. 149:20-152:18 (reaffirming
statements made in recommendation letter)). Reliance on Dix is also curious
insofar as, despite obvious affection for Pichardo, she sat on information
supposedly obtained from Plaintiff that exculpated Pichardo for five months,
and only decided to come forward with this information after an unrelated
35
Case 1:18-cv-03629-KPF Document 138 Filed 03/22/21 Page 36 of 36
dispute with Plaintiff that involved cat-sitting and time-entry violations by
another DOL employee.
In sum, the Court cannot and does not weigh in on which of Plaintiff or
Dix is more credible, or which of the Grant investigation or the Dormin
investigation is more accurate. But on this record, which includes
confirmation of the very information that Plaintiff is alleged to have fabricated
regarding Pichardo, the Court finds a triable issue as to Plaintiff’s retaliation
claim.
CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is
GRANTED IN PART and DENIED IN PART. Plaintiff’s claim for discrimination
in the form of a hostile work environment is dismissed, while Plaintiff’s claim
for retaliation is sustained. The Clerk of Court is directed to terminate the
motion at docket entry 117.
The parties are directed to meet and confer, and to submit a joint letter
to the Court outlining proposed next steps in the case, on or before April 23,
2021.
SO ORDERED.
Dated:
March 22, 2021
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
36
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?