McCall v. Genpak, LLC
Filing
48
OPINION & ORDER: Defendant's Motion for Summary Judgment is denied. The Clerk of the Court is respectfully directed to terminate the pending Motion. (See Dkt. No. 21.) SO ORDERED. (Signed by Judge Kenneth M. Karas on 9/30/2015) (lnl)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RONALD MCCALL,
Plaintiff,
-v-
Case No. 13-CV-1947 (KMK)
OPINION & ORDER
GENPAK, LLC,
Defendant.
Appearances:
Christopher Dale Watkins, Esq.
Michael Howard Sussman, Esq.
Sussman & Watkins
Goshen, NY
Counsel for Plaintiff
John Eric Higgins, Esq.
Nixon Peabody, LLP
Albany, NY
Counsel for Defendant
KENNETH M. KARAS, District Judge:
Ronald McCall (“Plaintiff”) brings this Action against his former employer, Genpak,
LLC (“Defendant” or “Genpak”), alleging claims related to race/color discrimination under Title
VII, 42 U.S.C. § 1981, and the New York State Human Rights Law (“NYSHRL”). In particular,
Plaintiff brings claims for discriminatory demotion and termination, retaliation, and hostile work
environment. Defendant moves for summary judgment on all claims. For the following reasons,
Defendant’s Motion for Summary Judgment is denied.
I. Background
A. Factual Background
1. The Parties and Relevant Timeline
Genpak is a corporation located in Middletown, NY and is an employer within the
meaning of Title VII, § 1981, and the NYHRL. (Corrected Def.’s Local Rule 56.1 Statement of
Material Facts (“Def.’s 56.1”) ¶ 22 (Dkt. No. 33); Pl.’s Rule 56.1 Reply (“Pl.’s 56.1”) ¶ 22 (Dkt.
No. 38)1.) At Genpak’s Middletown plant, and Genpak’s other manufacturing facilities outside
of New York, Genpak employees manufacture plastic and foam food packaging containers.
(Def.’s 56.1 ¶ 39; Pl.’s 56.1 ¶ 39.)
Plaintiff, who is African-American, began working for Genpak in or about September
2010 at the Middletown plant. (Pl.’s Rule 56.1 Counter-Statement (“Pl.’s Counter 56.1”) ¶ 1
(Dkt. No. 38); Def.’s Resp. to Pl.’s 56.1 Counter-Statement (“Def.’s Counter 56.1”) ¶ 1 (Dkt.
No. 45).) Plaintiff was employed at the Middletown plant for approximately a year and a half
before he was terminated. (Def.’s 56.1 ¶ 41; Pl.’s 56.1 ¶ 41.) During the time Plaintiff was
employed by Genpak, he was the only African-American employee in the Maintenance
Department and one of very few African-American employees in the entire plant. (Pl.’s Counter
56.1 ¶ 3; Def.’s Counter 56.1 ¶ 3.) The Parties dispute how many people were employed in the
maintenance department, with Plaintiff submitting evidence that there were approximately forty
employees, (Pl.’s Counter 56.1 ¶ 3 (citing McCall Decl. ¶ 4 (Dkt. No. 36))), and Defendant
1
In response to Defendant’s Rule 56.1 Statement, Plaintiff filed a single, consolidated
document comprising (1) Plaintiff’s Rule 56.1 Reply, which is an item-by-item response to
Defendant’s Rule 56.1 Statement, and (2) Plaintiff’s Rule 56.1 Counter-Statement, which is its
own, freestanding Rule 56.1 Statement. (See Pl.’s Rule 56.1 Reply and Counter-Statement 1, 39
(Dkt. No. 38).) For ease of reference, this Opinion will refer to these two components of the
Plaintiff’s submission separately, even though they, together, compose one document.
2
submitting evidence that there were approximately twelve to fifteen employees at any given
time, (Def.’s Counter 56.1 ¶ 3 (citing Att’y’s Decl. of John E. Higgins in Supp. of Def.’s Mot.
for Summ. J. (“Higgins Decl.”) Ex. G (Dkt. No. 22))). Defendant also has submitted evidence
that between 2010 and 2012 there were approximately eleven or twelve African-American
employees working at the Middletown plant in general at any given time. (Def.’s Counter 56.1
¶ 3.)
At all relevant times, a majority of the employees at the Middletown plant have been
represented by a union and covered by the terms of a collective bargaining agreement (“CBA”).
(Def.’s 56.1 ¶ 44; Pl.’s 56.1 ¶ 44.) Plaintiff was a member of the International Association of
Machinist and Aerospace Workers, AFL-CIO (the “Union”) for the duration of his employment
with Defendant, and he was covered at the time of his termination by the CBA that was effective
from February 1, 2012 through February 1, 2016. (Def.’s 56.1 ¶¶ 44–45; Pl.’s 56.1 ¶¶ 44–45.)
The CBA governed, for example, Plaintiff’s hours of work, overtime, holidays, wages, vacations,
seniority, leaves of absence, the filing of grievances and demands for arbitration, and discipline
and discharge. (Def.’s 56.1 ¶ 45; Pl.’s 56.1 ¶ 45.) Before the current CBA became effective on
February 1, 2012, Plaintiff’s employment was governed by the terms of a previous, similar
collective bargaining agreement. (Def.’s 56.1 ¶ 47; Pl.’s 56.1 ¶ 47.)
During the time Plaintiff was employed at Genpak, Betty Hager (“Hager”) was the Plant
Manager. (See Def.’s 56.1 ¶ 14; Pl.’s 56.1 ¶ 14.)2 When Plaintiff first started working for
Genpak in September 2010, his supervisor was Maintenance Supervisor Robert Garrett
(“Garrett”), and he also was supervised by former Genpak Maintenance Manager Chris Schou
2
At times, Defendant spells Ms. Hager’s name “Hagar.” However, it appears from the
company’s records that her name is actually spelled Hager.
3
(“Schou”). (Def.’s 56.1 ¶ 102; Pl.’s 56.1 ¶ 102.) Tony Crum (“Crum”), who is white, was a coworker of Plaintiff’s. (Pl.’s Counter 56.1 ¶ 10; Def.’s Counter 56.1 ¶ 10.) Darryl Decker
(“Decker”) was a senior mechanic at Genpak. (Pl.’s Counter 56.1 ¶ 12; Def.’s Counter 56.1
¶ 12.)3 Dave Walker (“Walker”) was a co-worker of Plaintiff’s. (Def.’s 56.1 ¶ 9; Pl.’s 56.1 ¶ 9.)
Louisa Carpanini (“Carpanini”) was the company’s Human Resources Manager. (Def.’s 56.1
¶ 35; Pl.’s 56.1 ¶ 35.) Finally, Cathi Sawchuk (“Sawchuk”) was the Director of Human
Resources; Carpanini reported directly to Sawchuk. (Def.’s 56.1 ¶ 78; Pl.’s 56.1 ¶ 78.)
2. Defendant’s Policies
a. Discrimination Policies and Internal Complaint Procedures
Throughout Plaintiff’s employment with Genpak, the company had anti-discrimination
policies that outlawed race-based discrimination. (See Def.’s 56.1 ¶ 59; Pl.’s 56.1 ¶ 59.) The
CBA also set forth a grievance policy, whereby Plaintiff was permitted to file a grievance about
any condition of his employment, including discrimination. (See Def.’s 56.1 ¶ 61; Pl.’s 56.1
¶ 61.) Genpak also had a Corporate Policy Prohibiting Harassment and Discrimination. (Def.’s
56.1 ¶ 62; Pl.’s 56.1 ¶ 62.) Plaintiff received a copy of this Policy on his first day. (Def.’s 56.1
¶ 65; Pl.’s 56.1 ¶ 65.) In part, the Policy provided that it was the employee’s obligation to follow
the reporting procedures if he had a concern or complaint about a possible violation of the Policy
and that it was his responsibility to clearly communicate to management any concern he had
about behavior or statements made in the workplace. (Def.’s 56.1 ¶ 66; Pl.’s 56.1 ¶ 66.) The
3
In response to Plaintiff’s assertion that “a senior mechanic named Darryl Decker told
[P]laintiff that Decker’s dog was named, ‘Nigger,’” Defendants respond that “[u]pon information
and belief, Deny based on the facts set forth in the Reply Declaration of Robert Garrett.” (Def.’s
Counter 56.1 ¶ 12 (citing Reply Decl. of Robert Garrett in Further Supp. of Genpak’s Mot. for
Summ. J. (“Garrett Reply Decl.”) ¶ 6 (Dkt. No. 43)).) However, that portion of Garrett’s
declaration does not relate to Decker’s position at Genpak. See Garrett Reply Decl. ¶ 6. In any
event, even if Decker’s job title truly were in dispute, that dispute would be immaterial.
4
Policy also provided that retaliation for making a report or participating in any investigation was
prohibited and that inappropriate conduct would result in appropriate disciplinary action, up to
and including dismissal. (Def.’s 56.1 ¶ 70; Pl.’s 56.1 ¶ 70.) The Policy provided that employees
should comply with the following procedures to lodge internal complaints:
Any individual who believes that he or she has been subjected to harassment or
discrimination on any prohibited basis, or who has observed such harassment or
discrimination, or believes he/she has been subjected to retaliation should notify his
or her supervisor, their Human Resource Manager or the Corporate Director of
Human Resource[s]. The Corporate Director of Human Resources may be
contacted at 518-798-9511 ext 202. If the complaint involves someone in the
employee’s direct line of supervision, the employee should inform their Human
Resources Manager of the complaint. The Company will investigate the matter and
take such action as is warranted under the circumstances.
(Def.’s 56.1 ¶ 71; Pl.’s 56.1 ¶ 71.)
It is undisputed that Plaintiff never filed a grievance pursuant to the terms of the CBA
alleging that he was discriminated against due to race. (See Def.’s 56.1 ¶¶ 60–61; Pl.’s 56.1
¶¶ 60–61.) As will be discussed later in greater detail, there is an issue of fact about whether
Plaintiff reported that he had been discriminated against under the Harassment and
Discrimination Policy procedures. (Compare Def.’s 56.1 ¶ 72 with Pl.’s 56.1 ¶ 72.)
b. Genpak’s Timeliness Policies
i. No Fault Absentee Policy
Genpak had a “No Fault Absentee Policy,” under which employees were given points for
occurrences such as being absent, late, or leaving early without permission. (Pl.’s Counter 56.1
¶ 42; Def.’s Counter 56.1 ¶ 42.) Plaintiff received a copy of the No Fault Absentee Policy on his
5
first day. (Def.’s 56.1 ¶ 79; Pl.’s 56.1 ¶ 79.)4 The Policy provides that points will accumulate as
follows:
Any employee not calling in to report lateness/absence at least 1 hour before the
start of their scheduled shift: 1 point
Reporting late for scheduled shift: 1 point
Leaving work early: 1 point
Each day of absence: 3 points
Each day of consecutive absence, regardless of the duration, after the initial day,
including partial days: 1 point
Each day of absence, including partial days, missed immediately before or
following scheduled time off: 3 points
Personal leave of absence - each 30 day period: 2 points
(Def.’s 56.1 ¶ 82; Pl.’s 56.1 ¶ 82.) The Policy further states:
Any employee who has perfect attendance, with no occurrences charged in a
consecutive four (4) week period, shall receive a -1 point deduction. Any employee
who has perfect attendance for a second consecutive four (4) week period shall
receive a -2 point deduction. It remains at a -2 point deduction for each perfect
consecutive four (4) week period thereafter until an occurrence exists.
(Def.’s 56.1 ¶ 83; Pl.’s 56.1 ¶ 83.) Finally, the Policy indicates that the “company may allow at
its discretion for two (2) doctor’s notes per year for excused absences—one in the first six
months and one in the second six months.” (Def.’s 56.1 ¶ 84; Pl.’s 56.1 ¶ 84.)
The workweek, as defined by the CBA, is Monday through Sunday, and a normal
workweek is eight consecutive hours including a thirty-minute lunch. (Def.’s 56.1 ¶ 48; Pl.’s
4
Plaintiff admitted only that he received a copy of this policy, but not that he received it
on his first day. (See Pl.’s 56.1 ¶ 79.) However, Plaintiff did not cite any evidence to support a
finding that he did not receive it when he started. (See id.)
6
56.1 ¶ 48.) Each employee also gets two ten-minute breaks per shift, one in the first half and one
in the second half of the shift. (Def.’s 56.1 ¶ 49; Pl.’s 56.1 ¶ 49.)
The Policy provides for discipline based on the accrual of absence points. In particular,
the policy states:
Progressive discipline will be administered according to the following number of
net occurrences (0-24). (NOTE: YOU CANNOT HAVE LESS THAN 0 OR
MORE THAN 24 POINTS.)
Verbal Warning
Written Warning
Final Warning 3 Day
Suspension
Termination
6 net occurrences
12 net occurrences
16 net occurrences
20 net occurrences
24 net occurrences
(Def.’s 56.1 ¶ 91; Pl.’s 56.1 ¶ 91.)
ii. Genpak’s Recordkeeping Practices
The hours and attendance of all Union employees have been tracked and recorded on a
daily and weekly basis through use of a time clock. (Def.’s 56.1 ¶ 50; Pl.’s 56.1 ¶ 50.)
Beginning on November 13, 2011, all employees were required to punch in and out of work for
breaks and lunches, in addition to at the beginning and end of their shifts. (Def.’s 56.1 ¶ 53; Pl.’s
56.1 ¶ 53.)
Carpanini, as well as Union representatives, reviewed the time and attendance of all
employees at the end of each four-week block of time. (Def.’s 56.1 ¶ 54 (citing Corrected Decl.
of Louisa Carpanini in Supp. of Genpak’s Mot. for Summ. J. (“Carpanini Decl.”) ¶ 15 (Dkt. No.
32)).)5 Additionally, Genpak kept annual Employee Data Calendars and other time and
attendance records, which were maintained and periodically reviewed by Carpanini, the Union,
5
Plaintiff has stated that he lacks sufficient information to admit or deny this claim by
Defendant. (Pl.’s 56.1 ¶ 54.)
7
Union employees, and managers for purposes of ensuring compliance with the No Fault
Absentee Policy, among other things. (Def.’s 56.1 ¶ 57; Pl.’s 56.1 ¶ 57.)
3. Plaintiff’s Employment
a. Plaintiff’s Hiring, Promotion, and Demotion
Prior to being hired, Plaintiff was interviewed by former plant manager Hager in a faceto-face interview. (Def.’s 56.1 ¶ 98; Pl.’s 56.1 ¶ 98.) Thus, Hager knew that Plaintiff was
African-American during the interview and when she hired him to work for Defendant. (Def.’s
56.1 ¶ 99; Pl.’s 56.1 ¶ 99.) Plaintiff was first hired as a mechanic’s helper in the Maintenance
Department in September 2010. (Def.’s 56.1 ¶ 102; Pl.’s 56.1 ¶ 102; Pl.’s Counter 56.1 ¶ 1;
Def.’s Counter 56.1 ¶ 1.) As noted above, his supervisor when he first started working at
Genpak was Garrett, (Def.’s 56.1 ¶ 102; Pl.’s 56.1 ¶ 102), and he was also supervised by former
Genpak Maintenance Manager Schou, (Def.’s 56.1 ¶ 102; Pl.’s 56.1 ¶ 102).
Plaintiff met the qualifications for his job as a mechanic’s helper and completed his 90day probationary period on December 20, 2010. (Def.’s 56.1 ¶ 104; Pl.’s 56.1 ¶ 104.) At the
end of the probation period, Garrett reported that Plaintiff’s probationary period did not need to
be extended and that Plaintiff “me[t] the qualifications of his job and more.” (Pl.’s 56.1 ¶ 104
(citing Watkins Aff’n Ex. 1 (Performance Review) (Dkt. No. 35)); see also Watkins Aff’n Ex. 1
(Performance Review).) Plaintiff bid on, and won, a promotion in accordance with the CBA,
and was promoted to a position as a shift mechanic trainee in the Maintenance Department,
effective December 27, 2010. (Def.’s 56.1 ¶¶ 105–06; Pl.’s 56.1 ¶¶ 105–06.)6
6
Plaintiff asserts that he was the most qualified bidder with the most seniority and that he
had been hired into a position below his qualifications. (Pl.’s Counter 56.1 ¶ 9 (citing Watkins
Aff’n Exs. 1, 2).) However, Defendant disputes these assertions and the evidence Plaintiff cites
does not support them. See Def.’s Counter 56.1 ¶ 9; Watkins Aff’n Ex. 1, 2.
8
Approximately seven months later, on or around July 12, 2011, in a meeting attended by
Plaintiff, Hager, Schou, Carpanini, and Alex Augustin, a Union representative, Plaintiff was
given the choice of being demoted to his original position of mechanic’s helper or having his
employment terminated. (Def.’s 56.1 ¶ 113; Pl.’s 56.1 ¶ 113.) Plaintiff chose the demotion.
(McCall Decl. ¶ 12.) The evidence shows that Hager made the decision to demote Plaintiff. (See
Def.’s 56.1 ¶ 117; Pl.’s 56.1 ¶ 117.) The evidence further shows that there were two stated bases
for the demotion: that Plaintiff took too many breaks and that Plaintiff was unable to perform the
job adequately. (See Def.’s 56.1 ¶ 114; Pl.’s 56.1 ¶ 114; Pl.’s Counter 56.1 ¶ 20; Def.’s Counter
56.1 ¶ 20; Higgins Decl. Ex. A (“McCall Dep. Tr.”) 197–200; Higgins Decl. Ex. B1, at
unnumbered 37; Carpanini Decl. ¶¶ 70–72.)7 According to Plaintiff, Hager told him that he took
too many breaks, but when she provided examples as to times he allegedly was on break,
Plaintiff asserted that he was actually working at those times. (Pl.’s Counter 56.1 ¶ 20 (citing
McCall Decl. ¶ 12).) Defendant does not dispute that Hager told Plaintiff that the other shift
mechanics said that he took too many breaks and that he would be monitored because of his
excessive breaks if he were put back in his helper position, but Defendant disputes the remainder
Additionally, in its Memorandum of Law, Defendant asserts that it is “undisputed” that
Hager promoted Plaintiff to a Shift Mechanic Trainee. (Mem. of Law in Supp. of Genpak’s Mot.
for Summ. J. (“Def.’s Mem.”) 3 (Dkt. No. 17) (citing Def.’s 56.1 ¶ 106).) There is no evidence
that Hager was the one who decided to promote Plaintiff, (see Def.’s 56.1 ¶¶ 105–06), and at oral
argument, counsel represented that Hager did not decide to give Plaintiff a promotion, but that
she signed off on it.
7
Here and elsewhere, Plaintiff’s counter 56.1 Statement cites to Exhibit B to the Higgins
Declaration, apparently intending to cite to the McCall deposition transcript, which is Exhibit A.
(See, e.g., Pl.’s Counter ¶¶ 21–22.) In such instances, this Opinion refers to Plaintiff’s citations
as though Plaintiff had cited to the McCall deposition transcript.
Because Exhibit B1 to the Higgins Declaration contains a collection of different
documents, for the sake of clarity, the Court will refer to it as if it were a consecutively paginated
document.
9
of Plaintiff’s assertion. (Def.’s Counter 56.1 ¶ 20.) However, Defendant does not cite any
evidence in support of the proposition that Plaintiff was not working at those times, or that
Plaintiff challenged Hager’s assertion that he took too many breaks. (Id.) The second stated
basis for Plaintiff’s demotion was that he lacked the ability to be a mechanic. (Pl.’s Counter 56.1
¶ 21; Def.’s Counter 56.1 ¶ 21.) According to Plaintiff, Hager told him that Walker told her that
Plaintiff had been spoken to and given several chances, but that he lacked the ability to be a
mechanic. (Pl.’s Counter 56.1 ¶ 22 (citing McCall Dep. Tr. 198–99).) Defendant denies that
Walker played any such role in this decision, but nothing in the materials cited provides evidence
that contradicts this. (See Def.’s Counter 56.1 ¶ 22 (citing Def.’s 56.1 ¶¶ 112–16; Carpanini
Decl. ¶¶ 68–72); Def.’s 56.1 ¶¶ 112–16; Carpanini Decl. ¶¶ 68–72.) Hager also told Plaintiff
that supervisors did not think that he was capable of doing the job. (Pl.’s Counter 56.1 ¶ 23;
Def.’s Counter 56.1 ¶ 23.)
Plaintiff points to several pieces of evidence in support of his assertion that he was indeed
qualified to perform his job. First, Plaintiff asserts that after his demotion back to mechanic’s
helper, he continued to perform the same work he had as a mechanic trainee. (Pl.’s Counter 56.1
¶ 27 (citing McCall Decl. ¶ 13; Decl. of Tony Crum (“Crum Decl.”) ¶ 8 (Dkt. No. 37)).)
Plaintiff asserts that he and Crum were able to perform jobs that other mechanics could not.
(Pl.’s Counter 56.1 ¶ 29 (citing Crum Decl. ¶ 8).) Defendant denies this, stating that, as a
mechanic’s helper, Plaintiff performed the duties set forth in the CBA. (Def.’s Counter 56.1 ¶ 27
(citing Carpanini Decl. ¶ 60; Carpanini Decl. Ex. 2 (CBA) 76).) Defendant also denies that
Plaintiff was able to perform tasks that other mechanics were unable to do, but does not provide
any evidence to support that assertion. (Def.’s Counter 56.1 ¶ 29.) Finally, as evidence that his
work performance was satisfactory, Plaintiff points to the performance review given by Garrett
10
on December 10, 2010 when Plaintiff was initially working as a mechanic’s helper, stating that
Plaintiff “meets the qualifications of his job and more.” (See Pl.’s 56.1 ¶ 104 (citing Watkins
Aff’n Ex. 1 (Performance Review)); see also Watkins Aff’n Ex. 1 (Performance Review).)
However, the Court notes that Plaintiff was given also a less favorable review which stated he
had “[l]imited potential due to not working well alone,” but the review is unsigned and there is
no evidence as to who wrote it, and the review is dated November 10, 2011, four months after
the demotion. (See Def.’s 56.1 ¶ 113; Pl.’s 56.1 ¶ 113; Higgins Decl. Ex. B1, at unnumbered
34.)
Additionally, the day before Plaintiff was demoted, Schou wrote a note for McCall’s
personnel file stating that Plaintiff did not stay for overtime when he should have on July 8, 2011
and July 9, 2011. (Pl.’s Counter 56.1 ¶ 24; Def.’s Counter 56.1 ¶ 24; Higgins Decl. Ex. B1, at
unnumbered 38.) However, on the evenings in question, Schou was not present at the plant, and
Plaintiff tried to reach him by phone but was unable to do so. (Pl.’s Counter 56.1 ¶ 25; Def.’s
Counter 56.1 ¶ 25.) According to Plaintiff, the supervisors at the plant told Plaintiff to leave at
the end of his shift at midnight. (Pl.’s Counter 56.1 ¶ 26 (citing McCall Dep. Tr. 205–09;
Watkins Aff’n Ex. 7 (McCall Timesheet) (reflecting that Plaintiff clocked out at 12:12 AM on
July 8, 2011 and at 12:00 AM on July 9, 2011, after 8.2 and 8 hour work days, respectively)).)
Defendant disputes this, pointing to the note by Schou and Plaintiff’s deposition, although the
Court notes that nothing in Plaintiff’s deposition testimony supports Defendant’s position. (See
Def.’s Counter 56.1 ¶ 26 (citing McCall Dep. Tr. 205–09); McCall Dep. Tr. 205–09.)
b. Racial Slurs and Jokes
The Parties also dispute whether Plaintiff’s co-workers and supervisors used racial slurs.
When he worked as a mechanic’s helper, Plaintiff was assigned to work with mechanic Dave
11
Walker, (Pl.’s Counter 56.1 ¶ 4; Def.’s Counter 56.1 ¶ 4), though Defendant notes that Plaintiff
also worked with other mechanics, (Def.’s Counter 56.1 ¶ 4 (citing Carpanini Decl. ¶ 65)).
Plaintiff has testified that Walker “regularly referred to McCall as ‘Boy,’” and also referred to
him as “Black Boy” and “told him to move his ‘black ass.’” (Pl.’s Counter 56.1 ¶ 5 (citing
McCall Decl. ¶ 6; McCall Dep. Tr. 235–36).) Defendant denies this on the grounds that Plaintiff
never brought any such alleged name calling to the attention of Carpanini or Hager. (Def.’s
Counter 56.1 ¶ 5 (citing McCall Dep. Tr. 236–37).) The Parties also dispute whether Walker
made such overtly racist comments in the presence of Garrett. (Compare Pl.’s Counter 56.1 ¶ 6
(citing McCall Decl. ¶ 6) with Def.’s Counter 56.1 ¶ 6 (citing Reply Decl. of Robert Garrett in
Further Supp. of Genpak’s Mot. for Summ. J. (“Garrett Reply Decl.”) ¶ 6 (Dkt. No. 43)).)
Plaintiff claims that, although he made it clear he did not appreciate Walker’s comments, Garrett
took no action to intervene, (Pl.’s Counter 56.1 ¶ 7 (citing McCall Decl. ¶ 6)), although
Defendant denies that assertion, (Def.’s Counter 56.1 ¶ 7 (citing Garrett Reply Decl. ¶ 7)).
Plaintiff also has submitted evidence that other co-workers, in addition to Walker, regularly used
racial slurs and made racial jokes in Plaintiff’s presence and outside of his presence. (Pl.’s
Counter 56.1 ¶ 8 (citing McCall Decl. ¶ 7; Crum Decl. ¶ 4).) Defendant denies this, citing
evidence that Garrett never heard racial slurs being directed at or about Plaintiff and evidence
that Plaintiff never complained to the corporate director of human resources about any such
occurrences, and that White, Garrett, Schou, and Carpanini never used racial slurs. (Def.’s
Counter 56.1 ¶ 8 (citing Carpanini Decl. ¶¶ 35, 66–67; Garrett Reply Decl. ¶¶ 6–7); Carpanini
Decl. ¶¶ 35, 66–67; Garrett Reply Decl. ¶¶ 6–7.)8
8
In turn, Carpanini’s Declaration cites to portions of Plaintiff’s deposition transcript
which support her Declaration. (See Carpanini Decl. ¶¶ 66–67 (citing McCall Dep. Tr. 126–27,
252).)
12
Plaintiff also submitted evidence from his co-worker Tony Crum that co-workers and
managers, including Schou, regularly referred to Plaintiff as a “nigger.” (Pl.’s Counter 56.1
¶¶ 10–11 (citing Crum Decl. ¶¶ 4, 10).) Defendant disputes this, based on the failure of Crum
and McCall to report any such name calling to Carpanini or to any other manager, during their
employment, and based on Plaintiff’s deposition testimony that Schou never called Plaintiff a
“nigger” or other racist names. (Def.’s Counter 56.1 ¶¶ 10–11 (citing McCall Dep. Tr. 126–27;
Reply Decl. of Louisa Carpanini in Further Supp. of Genpak’s Mot. for Summ. J. (“Carpanini
Reply Decl.”) ¶¶ 18–20, 23 (Dkt. No. 42)).) However, although there is no evidence that Schou
used racist slurs in Plaintiff’s presence, the evidence is that he did so behind Plaintiff’s back.
(See Crum Decl. ¶ 4.) Furthermore, Plaintiff claims that a senior mechanic, Darryl Decker, told
Plaintiff that Decker’s dog was named “Nigger,” and referred to menial tasks Plaintiff was
assigned to as “nigger work.” (Pl.’s Counter 56.1 ¶¶ 12–13 (citing McCall Decl. ¶ 8).)
Defendant disputes this, citing Garrett’s declaration that he never heard Plaintiff called or
referred to by any racist names. (Def.’s Counter 56.1 ¶¶ 12–13 (citing Garrett Reply Decl. ¶ 6);
Garrett Reply Decl. ¶ 6.) Plaintiff claims that Walker threatened to fight Plaintiff and, when
Plaintiff tried to walk away, Walker rammed into him, causing Plaintiff’s lip to bleed. (Pl.’s
Counter 56.1 ¶ 14 (citing McCall Decl. ¶ 9).) Plaintiff explained to management what occurred
with respect to the physical altercation, but they accepted Walker’s story that it was an accident
and allowed him to apologize, rather than taking any disciplinary action against him. (Id. ¶ 15
(citing McCall Decl. ¶ 9).) Defendant disputes this, pointing to evidence that some disciplinary
action was taken, namely a final letter being placed in Walker’s file and him being required to go
to anger management. (Def.’s Counter 56.1 ¶ 15 (citing McCall Dep. Tr. 243–47; Carpanini
Decl. ¶ 33; Carpanini Reply Decl. ¶ 35); Carpanini Decl. ¶ 33.)
13
Finally, it is not in dispute that between the time that Hager interviewed Plaintiff for the
job in September 2010 and the time of his demotion back to a mechanic’s helper position on or
about July 12, 2011, Hager never said anything to Plaintiff about his race or color, and never
called Plaintiff any inappropriate names related to his race or color. (Def.’s 56.1 ¶ 119; Pl.’s
56.1 ¶ 119.) However, that is where the agreement ends. After his July 12, 2011 demotion and
several months before his termination, in or about November 2011, according to Plaintiff, Hager
saw Plaintiff wearing a bandana on his head while he was working, and she called him “Aunt
Jemima.” (Def.’s 56.1 ¶ 120; Pl.’s 56.1 ¶ 120; Pl.’s Counter 56.1 ¶¶ 31–32 (citing McCall Decl.
¶¶ 14–15; Crum Decl. ¶ 5).) During Defendant’s investigation into Plaintiff’s EEOC charge he
made prior to commencing the instant suit, Carpanini interviewed Hager, and Hager denied that
she made this comment, but Defendant has not offered a sworn statement from Hager in
opposition to the instant Motion. (See Def.’s 56.1 ¶ 120; Pl.’s 56.1 ¶ 120.)9 The Parties dispute
whether Plaintiff reported this comment, with Plaintiff claiming that he reported the comment to
Steve Derisi, a manager in the engineering department, who told him to tell human resources and
to get a lawyer, (Pl.’s Counter 56.1 ¶¶ 34–35 (citing McCall Decl. ¶ 15)), and then to Carpanini,
(Pl.’s 56.1 ¶ 121 (citing McCall Decl. ¶¶ 14–16); McCall Decl. ¶¶ 14–16). According to
Plaintiff, Carpanini told McCall she would file a report with her boss, but Plaintiff never heard
9
In support of its position, Defendant cites sworn statements from Carpanini and McCall,
as well as “Defendant’s Discovery Responses, Ex. F.” (See Def.’s 56.1 ¶ 120 (citing, inter alia,
Carpanini Decl. ¶ 75; McCall Dep. Tr. 192–93). While it is not entirely clear whether Defendant
intended to cite a different document, the Court notes that Exhibit F to Defendant’s discovery
responses appears to relate to Plaintiff’s dispute with Walker, not Hager. (See Def.’s 56.1 ¶ 43
(defining “Defendant’s Discovery Responses” as “Defendant’s Response to Plaintiff[’]s First Set
of Document Demands, dated April 15, 2014”); Higgins Decl. Ex. F (April 15, 2014 Letter from
John E. Higgins enclosing Defendant’s Responses to Plaintiff’s First Set of Document Demands)
Ex. F.)
14
back from her about his complaint. (Pl.’s Counter 56.1 ¶¶ 37–38 (citing McCall Decl. ¶ 16).)
Defendant, in turn, disputes this, citing to Carpanini’s testimony that Plaintiff never reported any
of this to her. (Def.’s 56.1 ¶¶ 73–75; Def.’s Counter 56.1 ¶ 36–38 (citing Carpanini Decl. ¶¶ 31–
32); Carpanini Decl. ¶¶ 73–75.)10
Furthermore, according to Plaintiff, Hager was hostile toward him throughout his
employment and treated him worse than she treated his white co-workers. (Pl.’s Counter 56.1
¶ 30 (citing McCall Decl. ¶ 15; Crum Decl. ¶ 10).) Defendant disputes this, but only cites to
Hager’s hearsay statement to Carpanini during Carpanini’s investigation into the allegations in
Plaintiff’s EEOC charge. (Def.’s Counter 56.1 ¶ 30 (citing Carpanini Decl. Ex. 5, at 1–2).)
Plaintiff also points to an incident in December 2011: According to Plaintiff, during preparation
for a plant inspection, Hager yelled at Plaintiff because he had an empty potato chip bag in his
toolbox and she screamed in his face that she would fire him if he caused the plant to fail
inspection. (Pl.’s Counter 56.1 ¶¶ 39–40 (citing McCall Decl. ¶ 17).) However, according to
Plaintiff, when Hager saw that a white co-worker’s toolbox was a mess, she calmly asked him to
clean it and neither yelled at him nor threatened to fire him. (Pl.’s Counter 56.1 ¶ 41 (citing
McCall Decl. ¶ 17).) Defendant disputes that this incident occurred as Plaintiff asserts, citing to
the investigation into the EEOC charge, which included a hearsay statement from Hager that the
chip bag would have caused the plant to lose points on the inspection but that the white coworker had a picture in his toolbox that would not have caused points to be taken away. (Def.’s
Counter 56.1 ¶¶ 39–41 (citing Carpanini Decl. Ex. 5 (EEOC Investigation) 2); Carpanini Decl.
Ex. 5 (EEOC Investigation) 2.)
10
Defendant also points to evidence that Carpanini promptly investigated other racial
harassment claims and Plaintiff’s claim regarding Walker barreling into him. (Def.’s 56.1 ¶ 74.)
15
Plaintiff asserts that he found the above comments offensive. For example, Plaintiff
proffers evidence that he made it clear he did not appreciate Walker’s comments, (Pl.’s Counter
56.1 ¶¶ 6–7 (citing McCall Decl. ¶ 6)), that Plaintiff found it “very offensive” when Decker told
Plaintiff that Decker’s dog was named “Nigger,” (id. ¶ 12 (citing McCall Decl. ¶ 8)), and that
Plaintiff was offended by Hager referring to him as “Aunt Jemima,” (id. ¶¶ 32–33 (citing McCall
Decl. ¶ 15; Crum Decl. ¶ 5)). Plaintiff claims that in the spring or early summer of 2011,
Plaintiff complained to Schou about racial harassment by co-workers, including by Decker and
Walker. (Pl.’s Counter 56.1 ¶ 16 (citing McCall Decl. ¶ 10).) According to Plaintiff, after he
complained to Schou, Schou did not take remedial action but merely started to treat Plaintiff
worse than he did previously. (Pl.’s Counter 56.1 ¶ 18 (citing McCall Decl. ¶ 10; Crum Decl. ¶ 7
(declaring that Plaintiff and Crum were “regularly assigned the worst, most dangerous jobs”)).)
Defendant disputes this, citing the notes from Cathi Sawchuk’s investigation into Plaintiff’s
claims in his EEOC charge and her discussion with Schou, which reflected that Plaintiff had not
complained to Schou about racial harassment. (Def.’s Counter 56.1 ¶ 16 (citing Carpanini Decl.
Ex. 5 (EEOC investigation)); Carpanini Decl. Ex. 5 (EEOC Investigation) unnumbered 3–4; see
also Def.’s 56.1 ¶ 77 (citing Carpanini Decl. ¶ 34 n.6) (noting that Schou denied the alleged
actions or inactions attributed to him).)
Plaintiff also claims that he spoke to his union representative, Leigh Miller, about the
racial harassment, and that Miller “told him ‘not to rock the boat’ and that he did not want to
hear about it from [P]laintiff.” (Pl.’s Counter 56.1 ¶ 17 (citing McCall Decl. ¶ 11).)11 Defendant
disputes this, citing Plaintiff’s admission that he did not file a contract grievance pursuant to the
11
Plaintiff cited Paragraph 10 of his Declaration, but this appears to have been an error.
(See McCall Decl. ¶ 11.)
16
procedure in the CBA. (Def.’s Counter 56.1 ¶ 18 (citing Att’y’s Reply Decl. of John E. Higgins
in Further Supp. of Def.’s Mot. for Summ. J. (“Higgins Reply Decl.”) ¶ 5(b) (Dkt. No. 41));
Higgins Reply Decl. ¶ 5(b) (citing Pl.’s 56.1 ¶ 60).) Finally, it is undisputed that Plaintiff never
contacted Cathi Sawchuk, the Corporate Director of Human Resources, to whom Carpanini
reports, to complain about any racial discrimination, harassment, or retaliation. (Def.’s 56.1
¶ 78; Pl.’s 56.1 ¶ 78.)
c. Plaintiff’s Termination
On March 2, 2012, Hager terminated Plaintiff’s employment. (Def.’s 56.1 ¶¶ 127, 129;
Pl.’s 56.1 ¶¶ 127, 129.) The reason Hager gave for terminating Plaintiff was that he had
accumulated twenty-four absence points. (Def.’s 56.1 ¶¶ 129–30; Pl.’s 56.1 ¶¶ 129–30.)
Prior to being terminated, Plaintiff accrued a number of points pursuant to the No Fault
Absentee Policy. As explained at oral argument, supervisors completed absence reports
describing the “occurrence” under the Policy and whether the absence, tardiness, or early
departure was excused, and then sent the reports to human resources. It appears that Schou and
Garrett signed several of McCall’s absence reports. (See Carpanini Decl. Ex. 10; Carpanini
Reply Decl. Ex. E.) According to Defendant, Plaintiff was correctly given three points for
coming in late on February 18, 19, and 20, 2012, leading to his termination. (Pl.’s Counter 56.1
¶ 56; Def.’s Counter 56.1 ¶ 56.) However, there is an issue of fact as to whether Plaintiff should
have been marked as late on those days: Plaintiff claims that, based on the time that his
supervisor, Schou, told him to arrive, he clocked in early or on time because he was expected to
work late on those days. (Pl.’s Counter 56.1 ¶¶ 56–57 (citing Carpanini Decl. ¶ 80; McCall
Decl. ¶ 19).) Plaintiff declared that he worked from 11:26 AM until 12:06 AM on February 18,
17
2012, from 9:30 AM until 5:40 PM on February 19, 2012,12 and from 9:59 AM until 6:04 PM on
February 20, 2012. (McCall Decl. ¶ 19.) Plaintiff further declared that he reported for work at
the time he was told to by Schou. (Id.) Defendant disputes this, putting forth evidence that
McCall’s start time was 8:00 AM. (Def.’s Counter 56.1 ¶ 57 (citing Carpanini Reply Decl.
¶¶ 45–46); Carpanini Reply Decl. ¶¶ 45–46.)13
On March 1, 2012, Carpanini determined during her review of Plaintiff’s time and
attendance for the preceding four-week block of time that he had accumulated twenty-four points
as of February 20, 2012. (Def.’s 56.1 ¶ 126 (citing Carpanini Decl. ¶ 81).) Plaintiff disputes
whether his points were calculated correctly, claiming that, as of February 20, 2012, he had, at
most, fifteen points, (Watkins Aff’n ¶ 3); however, he does not dispute that Carpanini was
responsible for this calculation, (see Pl.’s 56.1 ¶ 126). Leigh Miller, the Chief Union Shop
Steward counted up Plaintiff’s points and agreed with Carpanini’s calculation. (Def.’s 56.1
¶ 126 (citing Carpanini Decl. ¶ 81).) The next day, on March 2, 2012, Hager determined that, in
accordance with Genpak’s policy, Plaintiff’s employment had to be terminated. (Def.’s 56.1
¶ 127 (citing Carpanini Decl. ¶ 82; Carpanini Decl. Exs. 12–13); Pl.’s 56.1 ¶ 127.) The Court
notes that Plaintiff received several warnings before termination: In particular, Plaintiff received
a verbal warning on or about January 20, 2011, upon accumulating six points, a written warning
on June 5, 2011 for accumulating twelve points, and a final written warning on December 21,
2011 for accumulating 16 points. (See Def.’s 56.1 ¶ 94; Pl.’s 56.1 ¶ 94.)
12
Plaintiff actually declared he worked “from 9:30 a.m. until 5:40 a.m., or just over 8
hours,” but the second “AM” appears to be a typographical error. (McCall Decl. ¶ 19.)
13
Defendant also cites to pages 52–53 of Exhibit 2 to the Carpanini Declaration, but
those pages do not appear in the record. (Def.’s Counter 56.1 ¶ 57.)
18
Defendant has provided evidence that other white employees were terminated around the
same time for accumulating twenty-four or more points. In particular, Patrick Crowe, Jr. was
terminated on January 24, 2012 because he had accumulated twenty-five points; Christina Barber
was terminated on May 25, 2012 because she had accumulated twenty-seven points; Victoria
Carpenter was terminated on November 16, 2012 because she had accumulated twenty-four
points; and John Morgan was terminated on October 22, 2013 because he had accumulated
twenty-four points. (Def.’s 56.1 ¶ 131 (citing Carpanini Decl. ¶ 86).) Plaintiff disputes this,
noting that two of the white employees had been permitted to accumulate more than twenty-four
points before termination. (Pl.’s 56.1 ¶ 131.) However, there is no evidence regarding the
details of those other employees’ point calculations, and the evidence set forth by Defendant, and
not disputed by Plaintiff, demonstrates that Carpanini calculated the point totals at the end of
each four-week block of time, (see Def.’s 56.1 ¶ 54 (citing Carpanini Decl. ¶ 15); Pl.’s 56.1
¶ 54), which could also account for an employee being allowed to exceed twenty-four points
prior to termination.
Finally, the evidence shows that Carpanini, who determined that Plaintiff had accrued
twenty-four points, had never made any discriminatory remarks about Plaintiff (or any
employee). (Def.’s 56.1 ¶ 111; Pl.’s 56.1 ¶ 111 (not disputing that portion of Defendant’s
assertion); see also McCall Dep. Tr. 127 (admitting that Carpanini never called Plaintiff any
racist names).)
B. Procedural Background
Plaintiff filed the Complaint on March 22, 2013. (Dkt. No. 1.) Defendant answered on
April 16, 2013. (Dkt. No. 3.) On November 19, 2013, the Court set a discovery and case
management schedule. (See Dkt. (minute entry for Nov. 19, 2013); see also Dkt. No. 10.)
19
Defendant submitted a pre-motion letter, (Dkt. No. 11), to which Plaintiff responded, (Dkt. No.
12), and the Court held a pre-motion conference on July 28, 2014, (Dkt. (minute entry for July
28, 2014)). Pursuant to a schedule set by the Court, (Dkt. No. 14), as extended by the Court
upon request, (Dkt. Nos. 28, 40), the following papers were filed. Defendant filed its Motion for
Summary Judgment and accompanying papers on September 29, 2014. (Dkt. Nos. 15–18.) Due
to a filing error, Defendant re-filed these documents. (Dkt Nos. 21–23, 25.) On November 3,
2014, with the permission of the Court, (Dkt. No. 31), Defendant filed an updated declaration
from Carpanini and 56.1 Statement to correct typos, (Dkt Nos. 32–33). Plaintiff then filed his
opposition on November 3, 2014. (Dkt. Nos. 34–38.) Defendant filed its reply papers on
November 21, 2014. (Dkt. Nos. 41–45.) The Court held oral argument on July 28, 2015. (Dkt.
(minute entry for July 28, 2015).)
II. Discussion
A. Applicable Law
1. Standard of Review
Summary judgment shall be granted where 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 Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123–24 (2d Cir.
2014) (same). “In determining whether summary judgment is appropriate,” a court must
“construe the facts in the light most favorable to the non-moving party and . . . resolve all
ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653
F.3d 156, 164 (2d Cir. 2011) (internal quotation marks omitted); see also Borough of Upper
Saddle River v. Rockland Cty. Sewer Dist. No. 1, 16 F. Supp. 3d 294, 314 (S.D.N.Y. 2014)
(same). Additionally, “[i]t is the movant’s burden to show that no genuine factual dispute
20
exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also
Aurora Commercial Corp. v. Approved Funding Corp., No. 13-CV-230, 2014 WL 1386633, at
*2 (S.D.N.Y. Apr. 9, 2014) (same). “However, when the burden of proof at trial would fall on
the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go
to the trier of fact on an essential element of the nonmovant’s claim,” in which case “the
nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue
of fact for trial in order to avoid summary judgment.” CILP Assocs., L.P. v. PriceWaterhouse
Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (alterations and internal quotation marks
omitted). Further, “[t]o survive a [summary judgment] motion . . . , [a nonmovant] need[s] to
create more than a ‘metaphysical’ possibility that his allegations were correct; he need[s] to
‘come forward with specific facts showing that there is a genuine issue for trial,’” Wrobel v. Cty.
of Erie, 692 F.3d 22, 30 (2d Cir. 2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)), and “cannot rely on the mere allegations or
denials contained in the pleadings,” Walker v. City of New York, No. 11-CV-2941, 2014 WL
1244778, at *5 (S.D.N.Y. Mar. 26, 2014) (internal quotation marks omitted) (citing, inter alia,
Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (“When a motion for summary judgment is
properly supported by documents or other evidentiary materials, the party opposing summary
judgment may not merely rest on the allegations or denials of his pleading . . . .”)).
“On a motion for summary judgment, a fact is material if it might affect the outcome of
the suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental
Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (internal quotation marks omitted). At summary
judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether
there are any factual issues to be tried.” Brod, 653 F.3d at 164 (internal quotation marks
21
omitted); see also In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., MDL No.
1358, No. M21-88, 2014 WL 840955, at *2 (S.D.N.Y. Mar. 3, 2014) (same). Thus, a court’s
goal should be “‘to isolate and dispose of factually unsupported claims.’” Geneva Pharm. Tech.
Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004) (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 323–24 (1986)).
2. Framework for Discrimination Claims
a. Title VII, NYSHRL, and § 1981
Plaintiff brings claims alleging that he was subjected to discriminatory demotion and
termination, retaliation, and a hostile work environment on account of his race/color, in violation
of Title VII, the NYSHRL, and 42 U.S.C. § 1981. With respect to the first set of claims, the law
provides the following:
Title VII prohibits “discriminat[ion] against any individual with respect to his
compensation, terms, conditions, or privileges of employment,” § 2000e–2(a)(1),
the NYSHRL similarly prohibits employers from “discriminat[ing] against such
individual in compensation or in terms, conditions or privileges of employment,”
N.Y. Exec. Law § 296(1)(a), and § 1981 provides that all “persons . . . shall have
the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens,”
§ 1981(a). Refusing to award a contract or a material employment benefit for a
discriminatory reason violates those statutes.
Tolbert v. Smith, 790 F.3d 427, 436 (2d Cir. 2015) (alterations in original).
With respect to retaliation, Title VII prohibits discrimination against an employee
“because he [or she] has opposed any practice made an unlawful employment practice.” 42
U.S.C. § 2000e-3(a). The NYSHRL similarly prohibits an employer from “discharg[ing] or
otherwise discriminat[ing] against any person because he or she has opposed any practices
forbidden under [§ 296].” See N.Y. Exec. Law § 296(3-a)(c). Additionally, the Supreme Court
has held that § 1981 “prohibits not only racial discrimination but also retaliation against those
who oppose it.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2529 (2013).
22
Finally, “Title VII prohibits the creation of a hostile work environment based on race,
color, religion, sex, or national origin.” Daniel v. T & M Prot. Res. LLC, — F. Supp. 3d —,
2015 WL 728175, at *9 (S.D.N.Y. Feb. 19, 2015) (internal quotation marks omitted), appeal
dismissed (Apr. 30, 2015). “Section 1981 [also] provides a cause of action for race-based
employment discrimination based on a hostile work environment,” Whidbee v. Garzarelli Food
Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000), as does the NYSHRL, see Massie v. Metro.
Museum of Art, No. 11-CV-9549, 2015 WL 3833839, at *6 (S.D.N.Y. June 22, 2015) (holding
that Title VII, NYSHRL, and § 1981 hostile work environment claims are analyzed the same
way).
b. McDonnell Douglas Framework
Courts analyze claims for adverse employment actions and retaliation under Title VII, the
NYSHRL, and § 1981 under the familiar three-part framework set forth by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). See Abrams v. Dep’t of Pub.
Safety, 764 F.3d 244, 251 (2d Cir. 2014) (Title VII claim); Kwan v. Andalex Grp. LLC, 737 F.3d
834, 843 (2d Cir. 2013) (“Federal and state law retaliation claims are reviewed under the burdenshifting approach of McDonnell Douglas.”); Ruiz v. Cty. of Rockland, 609 F.3d 486, 491 (2d Cir.
2010) (“[The plaintiff’s] Title VII claims and his claims for race . . . discrimination under
Section[] 1981 . . . are analyzed under the burden-shifting framework set forth in [McDonnell
Douglas].”); Dawson v. Bumble & Bumble, 398 F.3d 211, 216–17 (2d Cir. 2005) (NYSHRL);
Wesley-Dickson v. Warwick Valley Cent. Sch. Dist., 973 F. Supp. 2d 386, 397 (S.D.N.Y. 2013)
(“Racial discrimination claims brought pursuant to Title VII, Section 1981, and the NYSHRL are
governed at the summary judgment stage by the burden-shifting analysis established for Title VII
claims in [McDonnell Douglas].”), aff’d, 586 F. App’x 739 (2d Cir. 2014). “Under McDonnell
23
Douglas, a plaintiff bears the initial burden of proving by a preponderance of the evidence a
prima facie case of discrimination . . . .” Abrams, 764 F.3d at 251. Afterwards, “it is then the
defendant’s burden to proffer a legitimate non-discriminatory reason for its actions . . . .” Id.
Lastly, “the final and ultimate burden is on the plaintiff to establish that the defendant’s reason is
in fact pretext for unlawful discrimination.” Id. “The employee at all times bears the burden of
persuasion to show a retaliatory motive.” Cox v. Onondaga Cty. Sheriff’s Dep’t, 760 F.3d 139,
145 (2d Cir. 2014).
B. Analysis
1. Direct Evidence of Discrimination
Plaintiff argues that he has proffered direct evidence of discrimination, and thus the
McDonnell Douglas framework does not apply. (See Pl.’s Mem. of Law in Opp’n to Def.’s Mot.
for Summ. J. 15–17 (Dkt. No. 34).) The Court disagrees because Plaintiff has not provided any
direct evidence of discrimination, either with respect to his claim for demotion or for
termination. “The Second Circuit has noted that ‘direct evidence’ would roughly equate to a
‘smoking gun’ indicating that a plaintiff’s firing was discriminatory.” Manon v. 878 Educ., LLC,
No. 13-CV-3476, 2015 WL 997725, at *3 (S.D.N.Y. Mar. 4, 2015) (citing Cook v. Arrowsmith
Shelburne, Inc., 69 F.3d 1235, 1239 (2d Cir. 1995); Ostrowski v. Atl. Mut. Ins. Cos., 968 F.2d
171, 182 (2d Cir. 1992)). There is direct evidence where, for example, a company’s policy
related to an adverse employment action explicitly relies on a protected characteristic. See Trans
World Airlines, Inc. v. Thurston, 469 U.S. 111, 121–22 (1985) (noting that the defendant’s
argument that the plaintiff did not establish prima facie case under McDonnell Douglas must fail
where the plaintiff presented direct evidence of discrimination in that the company policy
provided that the employment action depended on the employees’ ages). Similarly, there is
24
direct evidence where the decisionmaker made comments evincing a discriminatory mindset
when terminating a plaintiff’s employment. See Manon, 2015 WL 997725, at *3 (holding that
there was direct evidence of discrimination sufficient to go to a jury where, during the formal
meeting terminating the plaintiff’s employment, the plaintiff’s direct supervisor remarked that he
“needed someone without children to work at the front desk,” and asked, “How can you
guarantee me that [] two weeks from now your daughter is not going to be sick again? . . . So,
what is it, your job or your daughter?”); see also Cartagena v. Ogden Servs. Corp., 995 F. Supp.
459, 463 (S.D.N.Y. 1998) (holding that comments reflecting a discriminatory animus made in
connection with a criticism of the plaintiff’s work skills during the time period immediately prior
to the plaintiff’s discharge were direct evidence of discrimination). Although Plaintiff proffers
circumstantial evidence from which a jury may be able to conclude that adverse employment
actions were taken for discriminatory purposes, the comments here were, in large part, not made
by decisionmakers, were not made in the context of evaluating Plaintiff’s work, and were not
made in close temporal proximity to the decisions, and thus do not provide direct evidence that
the demotion and termination were discriminatory. See Cardoso v. Robert Bosch Corp., 427
F.3d 429, 432–33 (7th Cir. 2005) (noting that direct evidence “is essentially an outright
admission that a challenged action was undertaken for one of the forbidden reasons covered in
Title VII,” and holding that there was not direct evidence of discrimination where an employee
was told his salary was lower because he was Brazilian because the statement was not made by
the decisionmaker (internal quotation marks omitted)); Renz v. Grey Advert., Inc., 135 F.3d 217,
224 (2d Cir. 1997) (finding that employee was laid off for non-discriminatory reasons despite
“isolated remarks . . . commenting critically on the ages of several female employees” ); Greene
v. Brentwood Union Free Sch. Dist., 966 F. Supp. 2d 131, 153–55 (E.D.N.Y. 2013) (holding
25
that, even if evidence of statements by the decisionmaker about other women and minorities such
as “that black bitch,” “a dumb nigger,” and “a fat ugly cunt” were admissible, they still would
not constitute direct evidence because they were not “probative of the defendants’ motive for
taking action against [the plaintiff]”), aff’d, 576 F. App’x 39 (2d Cir. 2014); Redd v. N.Y. State
Div. of Parole, 923 F. Supp. 2d 371, 385 (E.D.N.Y. 2012) (noting that “‘[d]irect evidence’ is
‘evidence tending to show, without resort to inference, the existence of a fact in question’”
(emphasis in original) (quoting Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1183 (2d Cir.
1992))); Dixon v. Int’l Fed’n of Accountants, No. 09-CV-2839, 2010 WL 1424007, at *3–4
(S.D.N.Y. Apr. 9, 2010) (holding that a comment by a co-worker that she “[couldn’t] believe that
[the defendant] could hire a black Jamaican woman at 48 years of age” was not direct evidence
of discrimination), aff’d, 416 F. App’x 107 (2d Cir. 2011); de la Cruz v. N.Y.C. Human Res.
Admin. Dep’t of Soc. Servs., 884 F. Supp. 112, 115–16 (S.D.N.Y. 1995) (holding that a statement
made by someone not involved in the adverse employment action could not be direct evidence of
discrimination), aff’d, 82 F.3d 16 (2d Cir. 1996).
2. Demotion
a. Prima Facie Case
To satisfy his burden of establishing a prima facie case of discrimination, Plaintiff must
produce evidence that shows that: (1) he belongs to a protected class; (2) he was qualified for his
position; (3) he suffered an adverse employment action; and (4) the circumstances surrounding
the adverse employment action give rise to an inference of discrimination. See Holcomb v. Iona
Coll., 521 F.3d 130, 138 (2d Cir. 2008). “Although the burden of meeting the prima facie case is
‘de minimis,’ Plaintiff must adduce some admissible evidence that would support [his] claims.”
Hill v. Rayboy–Brauestein, 467 F. Supp. 2d 336, 356 (S.D.N.Y. 2006).
26
First, it is undisputed that Plaintiff belongs to a protected class. (Pl.’s Counter 56.1 ¶ 1;
Def.’s Counter 56.1 ¶ 1.) Additionally, Plaintiff was demoted, which is clearly an adverse
employment action. See, e.g., Petyan v. N.Y.C. Law Dep’t, No. 14-CV-1434, 2015 WL 4104841,
at *3 n.8 (S.D.N.Y. July 2, 2015) (“Examples of materially adverse employment actions include
termination of employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly diminished material responsibilities,
or other indices . . . unique to a particular situation.” (alteration in original) (internal quotation
marks omitted) (quoting Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004))). Defendant
disputes that Plaintiff has met the second and fourth elements of a prima facie case, that he was
qualified for his job as a mechanic trainee and that the adverse employment action occurred
under circumstances giving rise to an inference of discrimination. (See Mem. of Law in Supp. of
Genpak’s Mot. for Summ. J. (“Def.’s Mem.”) 13 (Dkt. No. 17).) Each element will be addressed
in turn.
With respect to the second element of the prima facie case, Plaintiff has proffered
evidence that he was qualified for the position as a mechanic trainee. In particular,
Plaintiff claims that, after his demotion, he continued to perform the same work he had as
a mechanic trainee. (Pl.’s Counter 56.1 ¶ 27 (citing McCall Decl. ¶ 13; Crum Decl. ¶ 8).)
He further asserts that he was able to perform jobs that other mechanics could not. (Pl.’s
Counter 56.1 ¶ 29 (citing Crum Decl. ¶ 8).) Finally, Plaintiff points to the fact that the
only performance review he was given prior to the demotion was satisfactory; the review,
given by Garrett in December 10, 2010 when Plaintiff was initially working as a
mechanic’s helper, stated that Plaintiff “meets the qualifications of his job and more.”
(Pl.’s 56.1 ¶ 104 (citing Watkins Aff’n Ex. 1 (Performance Review); Watkins Aff’n Ex. 1
27
(Performance Review).)14 Defendant proffers some evidence disputing this. Namely,
Defendant asserts that, as a mechanic’s helper, Plaintiff only performed the duties set
forth in the CBA, and nothing more. (See Def.’s Counter 56.1 ¶ 28 (citing Carpanini
Decl. ¶ 60; Carpanini Decl. Ex. 2 (CBA) 76).) Defendant also generally denies that
Plaintiff was able to perform tasks that other mechanics were unable to do, but does not
provide any support for that assertion. (See Def.’s Counter 56.1 ¶ 29.) In its
Memorandum of Law in Support of its Motion, though, Defendant relies not on this
evidence, but on evidence in the record it did not cite in its Rule 56.1 Statement.
Specifically, Defendant asserts that “it is undisputed that plaintiff was required in his
position as a Shift Mechanic Trainee to ‘be familiar with all facets and procedures of
plant operations’ and ‘capable of diagnosing and repairing plant equipment entirely on
his own, without supervision,’” (Def.’s Mem. 13–14 (quoting Carpanini Decl. Ex. 2
(CBA) 72)), and that “in his position as a Helper in the Maintenance Department,
[P]laintiff was required to ‘show traits of mechanical abilities and potential of moving
up’ and ‘should be able to assist fellow maintenance personnel on assigned jobs,’” (id. at
14 (quoting Carpanini Decl. Ex. 2 (CBA) 76–77)), but that “[a]t the time of plaintiff’s
termination on March 2, 2012 . . . [P]laintiff was found by Ms. Hag[e]r to have
unsatisfactory judgment, initiative, creativity, independence, reliability, and attendance
for his Helper position,” (id. (emphasis added)).
14
As noted, Plaintiff also received a more negative review assessing his mechanic skills.
However, this review is unsigned and there is no evidence as to who wrote it, and the review is
dated November 10, 2011, four months after the demotion. (See Higgins Decl. Ex. B1, at
unnumbered 34; Def.’s 56.1 ¶ 113; Pl.’s 56.1 ¶ 113.) Defendant does not cite this review in its
Rule 56.1 Statement or address it in its Memorandum of Law or Reply.
28
First, Defendant cites no evidence that Plaintiff was found to not meet the
requirements of a shift mechanic trainee. Second, Defendant cites to evidence not
referenced in its Rule 56.1 statement, but the Second Circuit has been clear that a district
court “is not required to consider what the parties fail to point out in their Local Rule 56.1
statements.” Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (internal
quotation marks omitted); see also Watt v. N.Y. Botanical Garden, No. 98-CV-1095,
2000 WL 193626, at *1 n.1 (S.D.N.Y. Feb. 16, 2000) (“In setting forth the evidence in
this [o]pinion, the [c]ourt could have properly relied only on the parties’ Rule 56.1
[s]tatements and the citations to the record contained in those [s]tatements.”). Thus, the
Court need not consider any evidence not included in the Rule 56.1 Statements. Third,
even considering the evidence cited by Defendant, at most what Defendant has provided
is a dispute over a material fact, with Plaintiff proffering evidence that he was qualified
for his position and Defendant proffering evidence that he was not. But in deciding a
motion for summary judgment, the Court’s job is not to credit the movant’s evidence
over that of the non-movant; rather, as noted above, a court must “construe the facts in
the light most favorable to the non-moving party and . . . resolve all ambiguities and draw
all reasonable inferences against the movant.” Brod, 653 F.3d at 164 (internal quotation
marks omitted). Fourth, and finally, the “general rule is that an employee ‘only needs to
demonstrate that she possesses the basic skills necessary for performance of the job.’”
Ramos v. Marriott Int’l, Inc., 134 F. Supp. 2d 328, 338 (S.D.N.Y. 2001) (quoting Owens
v. N.Y.C. Hous. Auth., 934 F.2d 405, 409 (2d Cir. 1991)). Plaintiff has set forth sufficient
evidence for such a finding. Thus, the Court finds that Plaintiff has sufficiently proffered
evidence to meet the second element of his prima facie case.
29
Finally, the Court must consider whether the demotion occurred under circumstances
giving rise to an inference of discrimination. The Second Circuit has not created an “unbending
or rigid rule about what circumstances allow an inference of discrimination when there is an
adverse employment decision.” Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir.
1996). A plaintiff may satisfy this element of the prima facie case by showing evidence of
discriminatory animus, such as “remarks made by decisionmakers that could be viewed as
reflecting [such] animus.” See id. Alternatively, “[a] plaintiff may support an inference of race
discrimination by demonstrating that similarly situated employees of a different race were treated
more favorably.” Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999); see also
Mandell v. Cty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (“A showing of disparate
treatment—that is, a showing that the employer treated plaintiff ‘less favorably than a similarly
situated employee outside his protected group’—is a recognized method of raising an inference
of discrimination for purposes of making out a prima facie case.” (quoting Graham v. Long
Island R.R., 230 F.3d 34, 39 (2d Cir. 2000))). Conclusory and speculative allegations will not
suffice to demonstrate discriminatory intent; rather, Plaintiff “must point to facts that suggest”
that the adverse action was motivated, at least in part, by discriminatory animus. See Kalsi v.
N.Y.C. Transit Auth., 62 F. Supp. 2d 745, 753 (E.D.N.Y. 1998), aff’d, 189 F.3d 461 (2d Cir.
1999); see also Anderson v. Port Auth. of N.Y. & N.J., No. 04-CV-4331, 2009 WL 102211, at *4
(S.D.N.Y. Jan. 12, 2009) (“[M]ere conclusory allegations of discrimination will not defeat a
summary judgment motion; a plaintiff in a discrimination case must proffer ‘concrete particulars’
to substantiate his claim.”); Whaley v. City Univ. of N.Y., 555 F. Supp. 2d 381, 398–99 (S.D.N.Y.
2008) (noting that “no evidence support[ed] any finding of discriminatory animus” with respect
to the plaintiff’s Title VII race discrimination claim).
30
Here, the evidence shows that Hager made the decision to demote Plaintiff, (Def.’s 56.1
¶ 117; Pl.’s 56.1 ¶ 117), partially on the advice of Walker and Plaintiff’s supervisors, (see Def.’s
56.1 ¶ 115; Pl.’s 56.1 ¶ 115; Pl.’s Counter 56.1 ¶ 22). With respect to Hager, Plaintiff proffers
evidence that, after he was demoted, in November 2011, Hager saw Plaintiff wearing a bandana
on his head while he was working, and she called him “Aunt Jemima.” (Def.’s 56.1 ¶ 120; Pl.’s
56.1 ¶ 120; Pl.’s Counter 56.1 ¶¶ 31–32 (citing McCall Decl. ¶¶ 14–15; Crum Decl. ¶ 5).)
Plaintiff also claims that Hager told him that Walker told her that Plaintiff had been spoken to
and given several chances, but that he lacked the ability to be a mechanic. (Pl.’s Counter 56.1
¶ 22 (citing McCall Dep. Tr. 198–99).) Defendant denies this, but nothing in the materials cited
provides evidence that contradicts this. (See Def.’s Counter 56.1 ¶ 22 (citing Def.’s 56.1 ¶¶ 112–
16; Carpanini Decl. ¶¶ 68–72); Def.’s 56.1 ¶¶ 112–16; Carpanini Decl. ¶¶ 68–72.) With respect
to Walker, Plaintiff submitted evidence that Walker “regularly referred to [Plaintiff] as ‘Boy,’”
and also referred to him as “Black Boy” and “told him to move his ‘black ass.’” (Pl.’s Counter
56.1 ¶ 5 (citing McCall Decl. ¶ 6; McCall Dep. Tr. 235–36).) Hager also told Plaintiff that
supervisors did not think that he was capable of doing the job. (Pl.’s Counter 56.1 ¶ 23; Def.’s
Counter 56.1 ¶ 23.) Plaintiff’s initial supervisor was Garrett, and Plaintiff was later supervised
by Schou, though it is unclear when he started being supervised by Schou. (See Def.’s 56.1 ¶
102; Pl.’s 56.1 ¶ 102.) With respect to Garrett, Plaintiff claims that Walker made overtly racist
comments in front of Garrett, and Garrett took no action to intervene. (Pl.’s Counter 56.1 ¶¶ 6–7
(citing McCall Decl. ¶ 6).) And, with respect to Schou, Plaintiff proffers evidence that Schou
referred to Plaintiff as a “nigger” on multiple occasions. (Pl.’s Counter 56.1 ¶ 11 (citing Crum
Decl. ¶ 4).) Not surprisingly, Defendant disputes all of this evidence. (See Def.’s Counter 56.1
¶¶ 6, 7, 11.)
31
Crediting Plaintiff’s evidence, Plaintiff has submitted sufficient evidence to raise an
inference of discrimination based on the remarks of Hager and Walker.
In determining whether a remark is probative [of discriminatory intent], [courts in
the Second Circuit] have considered four factors: (1) who made the remark (i.e., a
decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was
made in relation to the employment decision at issue; (3) the content of the remark
(i.e., whether a reasonable juror could view the remark as discriminatory); and (4)
the context in which the remark was made (i.e., whether it was related to the
decision-making process).
Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir. 2010). With respect to Hager’s “Aunt
Jemima” comment, this comment was made by the decisionmaker. Furthermore, a reasonable
juror could view the remark as discriminatory. See Wesley-Dickson, 973 F. Supp. 2d at 399
(holding that a reasonable juror could find that a comment that the plaintiff sounded “just like
Aunt Jemima and sounded like she was down on the plantation” was racially discriminatory
(alterations and internal quotation marks omitted)). According to Plaintiff, this remark was made
in November 2011, only four months after his July 12, 2011 demotion and several months before
his termination in March 2012. (See Def.’s 56.1 ¶¶ 120, 127, 129; Pl.’s 56.1 ¶¶ 120, 127, 129;
Pl.’s Counter 56.1 ¶¶ 31–32 (citing McCall Decl. ¶¶ 14–15; Crum Decl. ¶ 5).) Furthermore,
Plaintiff provides evidence of discriminatory comments by Walker, in particular that Walker
“regularly referred to McCall as ‘Boy,’” and also referred to him as “Black Boy” and “told him
to move his ‘black ass.’” (See Pl.’s Counter 56.1 ¶ 5 (citing McCall Decl. ¶ 6; McCall Dep. Tr.
235–36).) Plaintiff also notes that Walker was involved in the decisionmaking process, in that he
advised Hager that Plaintiff was not performing adequately.
Additionally, “[t]o raise an inference of discrimination by relying on differential
treatment of similarly-situated individuals, the standard for comparing conduct requires a
reasonably close resemblance of the facts and circumstances of plaintiff’s and comparator’s
32
cases, such that the comparator must be similarly situated to the plaintiff in all material respects.”
Joseph v. Owens & Minor Distrib., Inc., 5 F. Supp. 3d 295, 311 (E.D.N.Y. 2014) (alteration and
internal quotation marks omitted), aff’d, 594 F. App’x 29 (2d Cir. 2015). “The two positions
need not be identical but they must be sufficiently similar to support at least a minimal inference
that the difference in treatment may be attributable to discrimination.” Id. (internal quotation
marks omitted); see also McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001) (“[W]here
a plaintiff seeks to establish the minimal prima facie case by making reference to the disparate
treatment of other employees, those employees must have a situation sufficiently similar to
plaintiff’s to support at least a minimal inference that the difference of treatment may be
attributable to discrimination.”); Potash v. Fla. Union Free Sch. Dist., 972 F. Supp. 2d 557, 579–
80 (S.D.N.Y. 2013) (noting that, “[w]hen a plaintiff seeks to meet her prima face case by
reference to the disparate treatment of an allegedly similarly situated employee,” “such employee
must have a situation sufficiently similar to plaintiff’s to support at least a minimal inference that
the difference of treatment may be attributable to discrimination.” (internal quotation marks
omitted)).
Plaintiff provides some evidence that he was treated differently than similarly situated
white employees. According to Plaintiff, Hager was hostile toward him throughout his
employment and treated him worse than his white co-workers. (Pl.’s Counter 56.1 ¶ 30 (citing
McCall Decl. ¶ 15; Crum Decl. ¶ 10).) Plaintiff points specifically to an incident in December
2011. According to Plaintiff, during preparation for a plant inspection, Hager yelled at Plaintiff
because he had an empty potato chip bag in his toolbox, and she screamed in his face that she
would fire him if he caused the plant to fail inspection. (Pl.’s Counter 56.1 ¶¶ 39–40 (citing
McCall Decl. ¶ 17).) However, according to Plaintiff, when Hager saw that a white co-worker’s
33
toolbox was a mess, she calmly asked him to clean it and neither yelled at him nor threatened to
fire him. (Pl.’s Counter 56.1 ¶ 41 (citing McCall Decl. ¶ 17).) Finally, Plaintiff proffers
evidence that Plaintiff and Crum, because he worked with Plaintiff, were “regularly assigned the
worst, most dangerous jobs.” (See Pl.’s Counter 56.1 ¶ 17 (citing Crum Decl. ¶ 7); Crum Decl.
¶¶ 7, 10.) Although Defendant disputes this evidence and, with respect to the inspection
incident, provides evidence that the individuals involved may not have been similarly situated,
(see Def.’s Counter 56.1 ¶¶ 17, 39–41, Carpanini Decl. Ex. 5 (EEOC Investigation) 2), Plaintiff
provides enough evidence of differential treatment by Hager and work-assigning supervisors,
when combined with the racially derogatory comments discussed above, to raise an inference of
discrimination.
In its defense, Defendant relies on the same-actor inference, arguing that the fact that
Hager was the same person who hired Plaintiff, demoted him, and fired him, and that she did so
in a short time period, undercuts any possible inference of discrimination. (Def.’s Mem. 14–15.)
However, the same-actor inference is only a plausible inference, not a necessary one. See, e.g.,
O’Diah v. Yogo Oasis, 954 F. Supp. 2d 261, 274 (S.D.N.Y. 2013) (“Although a
nondiscriminatory inference may be drawn when an employee is hired and fired by the same
decisionmaker, the same-actor inference is permissive, not mandatory.” (citation and internal
quotation marks omitted)); Masters v. F.W. Webb Co., No. 03-CV-6280, 2008 WL 4181724, at
*6 (W.D.N.Y. Sept. 8, 2008) (“[T]he inference alone is generally not a sufficient basis to grant
summary judgment for the employer, at least when the employee has proffered evidence of
pretext.”); Sklaver v. Casso-Solar Corp., No. 02-CV-9928, 2004 WL 1381264, at *10 n.16
(S.D.N.Y. May 15, 2004) (“[The same-actor] inference is not mandatory, and therefore does not
necessarily carry the day on defendant’s motion for summary judgment.”).
34
On balance, the Court finds that Plaintiff has provided sufficient evidence to make out a
prima facie case. In so deciding, the Court relies on the Second Circuit’s recent decision in
Tolbert v. Smith, 790 F.3d 427 (2d Cir. 2015), which emphasized that “[e]mployers are unlikely
to leave a smoking gun admitting a discriminatory motive,” and indeed, “[s]uch evidence is not
required to make a prima facie case of discrimination.” See id. at 438 (internal quotation marks
omitted). Rather, “[s]tatements showing an employer’s racial bias, which [the plaintiff]
identified, are sufficient to support a prima facie case of discrimination.” Id. at 438; see also
Ramos, 134 F. Supp. 2d at 338 (noting that making a prima facie case is a low burden).
b. Legitimate, Nondiscriminatory Reason
As discussed above, because Plaintiff makes out a prima facie case, the burden then
“shift[s] to the employer to articulate some legitimate, nondiscriminatory reason” for its actions.
McDonnell Douglas, 411 U.S. at 802. “This burden is one of production, not persuasion; it can
involve no credibility assessment.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
142 (2000) (internal quotation marks omitted). In essence, Defendant needs to “articulate a
legitimate nondiscriminatory reason for its employment decision.” Sutera v. Schering Corp., 73
F.3d 13, 16 (2d Cir. 1995). Defendant has done so here, pointing to evidence that Plaintiff took
too many breaks and that he lacked the ability to be a mechanic. (See Pl.’s Counter 56.1 ¶¶ 20–
21; Def.’s Counter 56.1 ¶¶ 20–21.) See Anderson v. Stauffer Chem. Co., 965 F.2d 397, 401 (7th
Cir. 1992) (holding that poor performance is a legitimate, non-discriminatory reason for adverse
employment action); Duprey v. Prudential Ins. Co. of Am., 910 F. Supp. 879, 887 (N.D.N.Y.
1996) (“Failure to perform her job duties to the satisfaction of her supervisors, defendants’ stated
and well-documented reason for terminating plaintiff, is a legitimate, nondiscriminatory reason
for discharging her.”); Everston v. State of N.Y. Mortg. Agency, No. 89-CV-7474, 1992 WL
35
6190, at *7 (S.D.N.Y. Jan. 3, 1992) (noting that inadequate job performance can be a legitimate,
nondiscriminatory reason for termination); Charrette v. S.M. Flickinger Co., 806 F. Supp. 1045,
1060 (N.D.N.Y. 1992) (same).
c. Pretext
If a defendant articulates a non-discriminatory reason, as Defendant has done here, the
presumption of discrimination drops out of the picture, and the plaintiff must show that the
adverse employment decision more likely than not was motivated in whole or part by
discriminatory reasons. See, e.g., Reeves, 530 U.S. at 142–43 (noting that, if the defendant can
articulate a nondiscriminatory basis for the employment action, the burden returns to the plaintiff
to show “by a preponderance of the evidence” that the defendant’s given reason for the adverse
employment action was false); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir.
1996) (explaining that the plaintiff must show that, “more likely than not[,] [discrimination] was
the real reason” for the employment action (second alteration in original)). Even though “the
presumption of discrimination drops out . . . once the defendant meets its burden of production,
the trier of fact may still consider the evidence establishing the plaintiff’s prima facie case and
inferences properly drawn therefrom . . . on the issue of whether the defendant’s explanation is
pretextual.” Reeves, 530 U.S. at 143 (second alteration in original) (citation and internal
quotation marks omitted). The Supreme Court’s decision in Reeves “mandates a case-by-case
approach, with a court examining the entire record to determine whether the plaintiff could
satisfy his ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff.” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 469–70
(2d Cir. 2001) (internal quotation marks omitted). “In seeking to show that there is a genuine
issue of material fact for trial, the [nonmoving] party cannot rely on mere allegations, denials,
36
conjectures[,] or conclusory statements, but must present affirmative and specific evidence
showing that there is a genuine issue for trial.” Price v. Cushman & Wakefield, Inc.,
808 F. Supp. 2d 670, 685 (S.D.N.Y. 2011); see also Young v. Ltd. Brands, No. 11-CV-2927,
2013 WL 5434149, at *4 (S.D.N.Y. Sept. 25, 2013) (noting that a “party may not rely on mere
speculation or conjecture as to the true nature of the facts to overcome a motion for summary
judgment, because mere conclusory allegations or denials cannot by themselves create a genuine
issue of material fact where none would otherwise exist.” (alterations and internal quotation
marks omitted)).
Plaintiff sets forth the following evidence: First, according to Plaintiff, Hager told him
that he took too many breaks, but when she provided examples as to times he allegedly was on
break, Plaintiff asserted that he was actually working during those times. (Pl.’s Counter 56.1
¶ 20 (citing McCall Decl. ¶ 12).) Second, Plaintiff has provided evidence that Defendant’s
assertion that Plaintiff was not qualified for his job was a pretext. For example, Plaintiff asserts
that after his demotion, he continued to perform the same work he had as a mechanic trainee.
(Pl.’s Counter 56.1 ¶ 27 (citing McCall Decl. ¶ 13; Crum Decl. ¶ 8).) Plaintiff asserts that he and
Crum were able to perform jobs that other mechanics could not. (Pl.’s Counter 56.1 ¶ 29 (citing
Crum Decl. ¶ 8).) And, as noted above, Plaintiff points to the fact that the only performance
review he was given while working at Genpak stated that Plaintiff “[met] the qualifications of his
job and more.” (Pl.’s 56.1 ¶ 104 (citing Watkins Aff’n Ex. 1 (Performance Review); Watkins
Aff’n Ex. 1 (Performance Review).) This evidence that Defendant’s proffered reason was
pretext, combined with the evidence of discrimination discussed with reference to Plaintiff’s
prima facie case, is sufficient evidence from which a jury could reasonably conclude that the
37
proffered reason for Plaintiff’s demotion was pretextual and that racial discrimination was the
real reason for the demotion.
3. Termination
a. Prima Facie Case
For the same reasons as discussed above, Plaintiff has established the first three elements
of his prima facie case. Indeed, the evidence of his qualification is even stronger for this claim
because he was terminated after being demoted to the mechanic’s helper job, and one review he
received as a mechanic’s helper was that he “me[t] the qualifications of his job and more.” (Pl.’s
56.1 ¶ 104 (citing Watkins Aff’n Ex. 1 (Performance Review)); Watkins Aff’n Ex. 1
(Performance Review).)
The Court thus turns to the fourth element, whether the termination occurred under
circumstances giving rise to an inference of discrimination. There are three layers of decisionmaking that took place, and thus three possible levels where the decision-makers could have
acted with discriminatory intent. First, Plaintiff’s supervisors, including Schou, decided to write
absence reports, leading to points being assigned. (See Carpanini Decl. Ex. 10; Carpanini Reply
Decl. Ex. E.) Second, Carpanini calculated Plaintiff’s point totals, and determined that he had
twenty-four points. (Def.’s 56.1 ¶ 126 (citing Carpanini Decl. ¶ 81).) Third, based on
Carpanini’s calculation, Hager decided to terminate Plaintiff. (See Def.’s 56.1 ¶ 127 (citing
Carpanini Decl. ¶ 82; Carpanini Decl. Exs. 12–13); Pl.’s 56.1 ¶ 127.)
Plaintiff argues that Carpanini calculated his points incorrectly, and provides some
evidence in support of that assertion. See Watkins Aff’n ¶ 3. However, there is simply no
evidence whatsoever that Carpanini made any discriminatory comments or harbored any
prejudice against Plaintiff. (Def.’s 56.1 ¶ 111; Pl.’s 56.1 ¶ 111 (not disputing that portion of
38
Defendant’s assertion); see also McCall Dep. Tr. 127 (admitting that Carpanini never called
Plaintiff any racist names).) Thus, although Carpanini may well have calculated Plaintiff’s
points under the Absentee Policy incorrectly, such that Plaintiff did not actually have twenty-four
points at the time of his termination, Plaintiff offers no evidence whatsoever that would allow a
jury to infer that Carpanini miscalculated the points under circumstances giving rise to an
inference of discrimination.
However, there is also evidence that Schou acted as a decisionmaker, in reporting
purported tardiness or absence. See Payne v. N.Y.C. Police Dep’t, 863 F. Supp. 2d 169, 182–83
(E.D.N.Y. 2012) (denying summary judgment based on evidence of discrimination by superior
whose role in plaintiff receiving a negative performance review led to adverse employment
action); Augustin v. Enlarged City Sch. Dist. of Newburgh, 616 F. Supp. 2d 422, 441, 446
(S.D.N.Y. 2009) (denying summary judgment where the plaintiff’s direct supervisor made a
remark that the jury could find evinced a discriminatory bias, and that supervisor “had great
influence on the decision-making process that ultimately led to the denial of tenure to plaintiff
and termination of plaintiff’s employment”); see also DiGirolamo v. MetLife Grp., Inc., No. 10CV-1537, 2011 WL 2421292, at *3, *8 (S.D.N.Y. June 6, 2011) (considering whether the
plaintiff proffered any evidence that age played a role in negative performance reviews the
plaintiff received, which had led to adverse employment action), aff’d, 494 F. App’x 120 (2d Cir.
2012); Hirschberg v. Bank of Am., N.A., 754 F. Supp. 2d 500, 518 (E.D.N.Y. 2010) (same). The
evidence shows that Plaintiff’s supervisors, including Schou and Garrett, produced and signed
Plaintiff’s absence reports. (See Carpanini Decl. Ex. 10; Carpanini Reply Decl. Ex. E.)
According to Defendant, Plaintiff was correctly given three points for coming in late on February
18, 19, and 20, 2012. (Pl.’s Counter 56.1 ¶ 56; Def.’s Counter 56.1 ¶ 56.) However, there is an
39
issue of fact as to whether Plaintiff should have been marked as late on those days. Plaintiff
claims that, based on the time that Schou told him to arrive, he clocked in early or on time
because he was expected to work late on those days. (Pl.’s Counter 56.1 ¶ 57 (citing McCall
Decl. ¶ 19).) Plaintiff declared that he worked from 11:26 AM until 12:06 AM on February 18,
2012, from 9:30 AM until 5:40 PM on February 19, 2012, and from 9:59 AM until 6:04 PM on
February 20, 2012. (McCall Decl. ¶ 19.) Plaintiff further declared that he reported for work at
the time he was told to by Schou. (Id.) Thus, according to Plaintiff, Schou told Plaintiff to come
in at a given time, then reported Plaintiff as tardy for arriving at that time, directly leading to his
termination. Moreover, as discussed above, Plaintiff proffers evidence that Schou referred to
Plaintiff as a “nigger” on multiple occasions. (Pl.’s Counter 56.1 ¶ 11 (citing Crum Decl. ¶ 4).)
Considering the factors described by the Second Circuit, these comments evince discriminatory
intent because the content of the remark is highly discriminatory, it was made by the
decisionmaker, and it was made repeatedly. See Henry, 616 F.3d at 149 (noting that, in
“determining whether a remark is probative [of discriminatory intent], [courts in the Second
Circuit] have considered four factors: (1) who made the remark (i.e., a decision-maker, a
supervisor, or a low-level co-worker); (2) when the remark was made in relation to the
employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror
could view the remark as discriminatory); and (4) the context in which the remark was made
(i.e., whether it was related to the decision-making process)”); see also Back v. Hastings On
Hudson Union Free Sch. Dist., 365 F.3d 107, 124 n.12 (2d Cir. 2004) (indicating that comments
are not stray when they “were (1) made repeatedly, (2) drew a direct link between . . . stereotypes
and the conclusion that [the plaintiff] should not be tenured, and (3) were made by supervisors
who played a substantial role in the decision to terminate”); Abdu-Brisson, 239 F.3d at 468
40
(“While it is true that the stray remarks of a decision-maker, without more, cannot prove a claim
of employment discrimination, . . . when other indicia of discrimination are properly presented,
the remarks can no longer be deemed stray, and the jury has a right to conclude that they bear a
more ominous significance.” (citation and internal quotation marks omitted)).
This evidence is bolstered by additional evidence suggesting that Schou penalized
Plaintiff at times he should not. The night before Plaintiff was demoted, Schou wrote a note for
McCall’s personnel file stating that Plaintiff did not stay for overtime when he should have on
July 8, 2011 and July 9, 2011. (Pl.’s Counter 56.1 ¶ 24 (citing McCall Dep. Tr. 205–09); Def.’s
Counter 56.1 ¶ 24; McCall Dep. Tr. 205–09.) However, on the evenings in question, Plaintiff
claims that Schou was not present at the plant, and Plaintiff tried to reach him by phone but was
unable to do so. (Pl.’s Counter 56.1 ¶ 25; Def.’s Counter 56.1 ¶ 25.) According to Plaintiff, the
supervisors at the plant told Plaintiff to leave at the end of his shift at midnight. (Pl.’s Counter
56.1 ¶ 26 (citing McCall Dep. Tr. 205–09; Watkins Aff’n Ex. 7 (McCall Timesheet) (reflecting
that Plaintiff clocked out at 12:12 AM on July 8, 2011 and at 12:00 AM on July 9, 2011, after 8.2
and 8 hour work days, respectively)).) Defendant disputes this, pointing to the note by Schou
and Plaintiff’s deposition, although the Court notes that nothing in Plaintiff’s deposition
testimony supports Defendant’s position. (Def.’s 56.1 ¶ 26 (citing McCall Dep. Tr. 205–09);
McCall Dep. Tr. 205–09.) This evidence, taken together, is sufficient for a finding that the
termination occurred under circumstances giving rise to an inference of discrimination.
b. Legitimate, Non-Discriminatory Reason
The burden then shifts to Defendant to proffer a legitimate non-discriminatory reason for
its actions. Defendant has met that burden, proffering evidence that Carpanini calculated, and
Miller confirmed, that Plaintiff had accrued twenty-four absence points, (Def.’s 56.1 ¶ 126
41
(citing Carpanini Decl. ¶ 81)), and that Genpak had a policy providing for termination once an
employee reaches twenty-four absence points, (Def.’s 56.1 ¶ 91; Pl.’s 56.1 ¶ 91). See, e.g.,
Henny v. New York State, 842 F. Supp. 2d 530, 554 (S.D.N.Y. 2012) (“[The] [p]laintiff’s lateness
and absences certainly suffice to establish a legitimate, non-discriminatory reason for her
treatment.”); Ebanks v. Neiman Marcus Grp., Inc., 414 F. Supp. 2d 320, 337 (S.D.N.Y. 2006)
(“[The] [d]efendant has established a legitimate, non-discriminatory reason for [the plaintiffs’]
termination—[one plaintiff’s] lateness and [the other plaintiff’s] lateness and frequent absences.
Each plaintiff received at least two written warnings, plus numerous oral admonitions,
concerning their attendance records.”).
c. Pretext
Consequently, the presumption of discrimination drops out and Plaintiff then has the
burden of showing that “more likely than not[,] [discrimination] was the real reason” for the
decision to terminate Plaintiff. Van Zant, 80 F.3d at 714 (second alteration in original).15
15
With respect to Hager, even if Plaintiff met his burden of setting out his prima facie
case based on Hager’s decision to terminate Plaintiff based on his accrual of twenty-four absence
points, summary judgment would nonetheless be warranted because there is insufficient evidence
of pretext. Because there is no evidence that Hager was the one who awarded Plaintiff absence
points or calculated how many points he had, the relevant question is whether Hager applied the
absence policy more harshly against Plaintiff than against white employees. See McBrideCrawford v. Gen. Mills Cereals Operations, Inc., No. 12-CV-1180, 2015 WL 4208608, at *7
(W.D.N.Y. July 9, 2015) (“The fact that an employee disagrees with the results of an employer’s
decision regarding termination, or even has evidence that the decision was objectively incorrect
or was based on a faulty investigation, does not automatically demonstrate, by itself, that the
employer’s proffered reasons are a pretext for termination.” (alteration and internal quotation
marks omitted)); Krupa v. Dunkirk Specialty Steel, LLC, No. 13-CV-76, 2014 WL 6387283, at
*7 (W.D.N.Y. Nov. 14, 2014) (considering whether a reasonable jury could find that the
employer “applied the absentee policy harshly toward her and leniently toward others because of
her sex”); Miller v. Nat’l Ass’n of Sec. Dealers, Inc., 703 F. Supp. 2d 230, 247 (E.D.N.Y. 2010)
(“The relevant inquiry is not whether the performance-based justification for plaintiff’s
termination articulated by defendant is accurate or fair, but whether [the] plaintiff can show any
evidence that it was not the actual justification. [The] [p]laintiff cannot accomplish this by
stating his disagreement with his supervisors’ negative assessment of his performance, even if he
42
has evidence that the decision was objectively incorrect.” (citation, alteration, and internal
quotation marks omitted)).
Here, the relevant undisputed evidence, as well as Plaintiff’s evidence, shows the
following. Hager was responsible for the decision to hire Plaintiff, and she did so knowing that
he was African-American. (See Def.’s 56.1 ¶ 99; Pl.’s 56.1 ¶ 99.) Plaintiff proffered evidence
that Hager was hostile toward him throughout his employment at Genpak and that she treated
him worse than she treated his white co-workers, (Pl.’s Counter 56.1 ¶ 30 (citing McCall Decl.
¶ 15; Crum Decl. ¶ 10)), pointing in particular to the chip bag incident in December 2011, (Pl.’s
Counter 56.1 ¶¶ 39–41 (citing McCall Decl. ¶ 17)). Additionally, in November 2011, according
to Plaintiff, Hager called him “Aunt Jemima.” (Def.’s 56.1 ¶ 120; Pl.’s 56.1 ¶ 120; Pl.’s Counter
56.1 ¶ 31–32 (citing McCall Decl. ¶¶ 14–15; Crum Decl. ¶ 5).) Finally, there is evidence
regarding four other employees terminated around the same time. Patrick Crowe, Jr. was
terminated on January 24, 2012 because he had accumulated twenty-five points; Christina Barber
was terminated on May 25, 2012 because she had accumulated twenty-seven points; Victoria
Carpenter was terminated on November 16, 2012 because she had accumulated twenty-four
points; and John Morgan was terminated on October 22, 2013 because he had accumulated
twenty-four points. (Def.’s 56.1 ¶ 131 (citing Carpanini Decl. ¶ 86).) Finally, with regard to
point calculations, the evidence shows that Carpanini, as well as Union representatives, reviewed
the time and attendance of all employees at the end of each four-week block of time. (Def.’s
56.1 ¶ 54 (citing Carpanini Decl. ¶ 15).)
Plaintiff argues that he has produced sufficient evidence to support a rational finding that
the legitimate, non-discriminatory reasons proffered by the defendant were false. In particular,
Plaintiff points to the fact that two white employees were permitted to accrue more than twentyfour points before being terminated as evidence that the legitimate reason for terminating
Plaintiff was false. (See Pl.’s 56.1 ¶ 131.) However, the evidence shows that two of the four
white employees were fired for accumulating twenty-four points. (See Def.’s 56.1 ¶ 131.)
Moreover, the two employees who accrued more than twenty-four points were just over twenty
four, (see id.), and there is a more rational explanation for the fact that they were permitted to
accrue more than twenty-four points, namely that certain actions received multiple points under
the policy, and that the point totals were calculated every four weeks, such that Genpak may not
have realized that an employee had reached twenty-four absence points until he or she had in fact
reached twenty-five or more points. Indeed, Carpanini determined that Plaintiff had received his
twenty-fourth absence point on February 20, 2012. (See Def.’s 56.1 ¶ 126 (citing Carpanini
Decl. ¶ 81); see also Watkins Aff’n Ex. 4 (Employee Data Calendar).) However, Carpanini did
not make this determination until March 1, 2012. (See Def.’s 56.1 ¶ 126 (citing Carpanini Decl.
¶ 81).) Thus, had Plaintiff been late or absent between February 20, 2012 and March 1, 2012, he
would have had more than twenty-four points at the time he was terminated.
Additionally, Plaintiff does not dispute that he was frequently late or absent, merely
asserting that he was awarded some points he should not have been and that the points were
calculated incorrectly. (Pl.’s Counter 56.1 ¶¶ 46–61 (citing Watkins Aff’n ¶ 3).) Furthermore,
the fact that Plaintiff got progressive warnings at the six-point mark, the twelve-point mark, and
the sixteen-point mark, further undercuts Plaintiff’s claim that the proffered reason for the
termination was pretextual. (See Def.’s 56.1 ¶ 94; Pl.’s 56.1 ¶ 94.) In sum, there is insufficient
evidence from which a jury could conclude that Hager either (1) knew that Plaintiff’s points
were calculated incorrectly and, with discriminatory motive, used that incorrect calculation as a
43
According to Plaintiff, Schou told Plaintiff to arrive at work late, and then marked him as late,
resulting in his termination. (See Pl.’s 56.1 ¶ 126 (not denying that Carpanini had determined
that Plaintiff accumulated twenty-four points but instead denying that Defendant had made such
a determination in “good faith”); Pl.’s Counter 56.1 ¶¶ 56–57 (citing McCall Decl. ¶ 19);
Carpanini Decl. Ex. 10 (indicating that McCall’s supervisors, including Schou and Garrett,
produced and signed Plaintiff’s absence reports); Carpanini Reply Decl. Ex. E (same).) This
evidence is sufficient to show that the reason for the termination was pretextual, and when
combined with Plaintiff’s evidence that Schou referred to Plaintiff as a “nigger” on multiple
occasions, (Pl.’s Counter 56.1 ¶ 11 (citing Crum Decl. ¶ 4)), is sufficient evidence from which a
jury could reasonably conclude that the proffered reason for Plaintiff’s termination was
pretextual and that racial discrimination was the real reason for the termination. See Payne, 863
F. Supp. 2d at 183–84 (denying summary judgment on race discrimination claim where there
was evidence of comments that could be seen as discriminatory by a superior who affected the
plaintiff’s performance review score, where the performance review scores were the basis for the
plaintiff’s termination); Everson v. N.Y.C. Transit Auth., No. 02-CV-1121, 2007 WL 539159, at
*11 (E.D.N.Y. Feb. 16, 2007) (denying summary judgment and holding that evidence of the
decisionmaker using the word “nigger” one time, combined with evidence that another employee
had heard the decisionmaker make similar remarks and that the plaintiff was better qualified than
the employee ultimately promoted, was sufficient evidence to go to the jury on a claim for
discriminatory failure to promote); cf. Sedelnik v. City of Bridgeport, 837 F. Supp. 2d 12, 19–20
pretext for terminating him, or (2) terminated him based on his accrual of twenty-four points and
would not have done so if he were not African-American. Indeed, there is insufficient evidence
from which a jury could conclude that the asserted reason “was so lacking in merit as to call into
question its genuineness.” Miller, 703 F. Supp. 2d at 247 (internal quotation marks omitted).
44
(D. Conn. 2011) (holding that evidence that people in high positions of authority, who may not
even have been the decisionmakers, made stray remarks about the plaintiff’s age was sufficient
evidence to deny summary judgment in age discrimination case). Therefore, Defendant’s
Motion for Summary Judgment on this claim is denied.
4. Retaliation
a. Prima Facie Case
To establish a prima facie case of retaliation, Plaintiff must show that: (1) he engaged in
protected activity; (2) Defendant was aware of this activity; (3) Defendant took adverse action
against Plaintiff; and (4) there was a causal connection between the adverse action and the
protected activity, i.e., that a retaliatory motive played a part in the adverse employment action.
See Kessler v. Westchester Cty. Dep’t of Soc. Serv., 461 F.3d 199, 205–06 (2d Cir. 2006);
Hawana v. City of New York, 230 F. Supp. 2d 518, 529 (S.D.N.Y. 2002). Proof of causation can
be shown either: (1) directly, through evidence of retaliatory animus directed against the plaintiff
by the defendant; or (2) 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. See Gordon v. N.Y.C. Bd. of Educ., 232
F.3d 111, 117 (2d Cir. 2000); Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990);
Gilford v. City of New York, No. 03-CV-91, 2004 WL 1574695, at *7 (S.D.N.Y. July 14, 2004)
(quoting Gordon, 232 F.3d at 117), aff’d, 136 F. App’x 390 (2d Cir. 2005). However, even if
Plaintiff states a prima facie case, retaliation claims are still subject to McDonnell Douglas
burden shifting. See Sumner, 899 F.2d at 209.
Plaintiff proffers evidence from which a jury could conclude he engaged in protected
activity. For example, Plaintiff says he complained to Schou about racial harassment by
45
co-workers, including by Decker and Walker in the spring or early summer of 2011. (Pl.’s
Counter 56.1 ¶ 16 (citing McCall Decl. ¶ 10).) Plaintiff also claims that he reported Hager’s
November 2011 “Aunt Jemima” comment to Steve Derisi, a manager in the engineering
department, and to Carpanini, but does not provide evidence as to exactly when he reported the
comment. (See Pl.’s 56.1 ¶ 121 (citing McCall Decl. ¶¶ 14–16); McCall Decl. ¶¶ 14–16.)
Plaintiff further claims that, at the same time he reported the Aunt Jemima comment, he reported
to Carpanini that he had also been subjected to racial slurs and jokes by Decker and others. (Pl.’s
Counter 56.1 ¶ 36 (citing McCall Decl. ¶ 16).)
Regarding the first element of a prima facie case, “[w]hile . . . protected activity generally
involves the filing of a formal complaint of discrimination with an administrative agency, the
Second Circuit has recognized that ‘protected activity’ includes ‘informal protests of
discriminatory employment practices, including making complaints to management.’” Risco v.
McHugh, 868 F. Supp. 2d 75, 110 (S.D.N.Y. 2012) (citation omitted) (quoting Sumner, 899 F.2d
at 209) (citing Kotcher v. Rosa & Sullivan Appliance Ctr., 957 F.2d 59, 65 (2d Cir. 1992)); see
also Giscombe v. N.Y.C. Dep’t of Educ., 39 F. Supp. 3d 396, 401 (S.D.N.Y. 2014) (“Informal
complaints to supervisors, instituting litigation, or filing a formal complaint are protected
activities under Title VII.” (internal quotation marks omitted)); Martin v. State Univ. of N.Y., 704
F. Supp. 2d 202, 227 (E.D.N.Y. 2010) (“It is clearly established that informal complaints to
supervisors constitute protected activity under Title VII.” (internal quotation marks omitted)).
“[S]uch informal complaints[,] [however,] must be sufficiently specific to make it clear that the
employee is complaining about conduct prohibited by Title VII.” Risco, 868 F. Supp. 2d at 110.
Thus, there is an issue of fact as to whether Plaintiff engaged in protected activity by
46
complaining to Carpanini, Schou, and Derisi that he had been subjected to racial jokes and slurs
by Hager, Walker, and Decker, among others.
Next, crediting Plaintiff’s evidence, the second requirement is also met, as general
corporate knowledge of Plaintiff’s protected activity is sufficient to make out a prima facie case.
See Kessler, 461 F.3d at 210 (“Neither this nor any other circuit has ever held that, to satisfy the
knowledge requirement, anything more is necessary than general corporate knowledge that the
plaintiff has engaged in a protected activity.” (citing Gordon, 232 F.3d at 116)). Thus,
construing all facts in the light most favorable to Plaintiff, Plaintiff has met the minimal burden
of showing general knowledge of his protected activity.
As for the third element, Plaintiff points to the alleged adverse employment actions
described above, namely his demotion and termination.16 An adverse action for a retaliation
16
The Court notes that one other action referred to by Plaintiff could potentially
constitute an adverse employment action. Plaintiff has proffered evidence that, after he
complained to Schou, Schou did not take remedial action but merely started to treat Plaintiff
worse than he did previously. (Pl.’s Counter 56.1 ¶ 17 (citing McCall Decl. ¶ 10; Crum Decl. ¶ 7
(declaring that Plaintiff and Crum were “regularly assigned the worst, most dangerous jobs”)).)
Events that do not constitute adverse employment actions for Plaintiff’s intentional
discrimination claim may still be considered in the context of his retaliation claim. See
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) (“[T]he anti[-]retaliation
provision, unlike the substantive provision, is not limited to discriminatory actions that affect the
terms and conditions of employment.”). This does not mean that all potential workplace
grievances are fodder for retaliation claims, however. See id. at 68 (“We speak of material
adversity because we believe it is important to separate significant from trivial harms. Title VII,
we have said, does not set forth a general civility code for the American workplace.” (internal
quotation marks omitted)). To constitute an adverse action for a retaliation claim, the allegedly
retaliatory action must be “materially adverse;” in other words, it must be the type of action that
would “dissuade a reasonable worker from making or supporting a charge of discrimination.” Id.
at 57; see also Kessler, 461 F.3d at 207 (same).
However, Plaintiff’s evidence that Schou treated him worse following his complaint is
insufficient because Plaintiff does not provide enough evidence for the Court to conclude that the
action taken by Schou is of the type that would dissuade a reasonable worker from complaining
about discrimination. Indeed, Plaintiff does not argue otherwise. It also is informative that the
actions allegedly taken by Schou after Plaintiff complained to him in the spring or summer of
47
claim need not “bear on the terms or conditions of employment;” rather, “the proper inquiry now
is whether ‘the employer’s actions [were] harmful to the point that they could well dissuade a
reasonable worker from making or supporting a charge of discrimination.’” See Hicks v. Baines,
593 F.3d 159, 169 (2d Cir. 2010) (alteration in original) (quoting Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 57 (2006)). Demotion and termination, actions that do bear on the
terms and conditions of employment, are clearly adverse actions under this broad standard. See,
e.g., Mariama Amar v. N.Y.C. City Health & Hosps. Corp., No. 14-CV-2503, 2015 WL
3754999, at *10 (S.D.N.Y. June 15, 2015) (“While the anti-retaliation provision of Title VII is
not limited to discriminatory actions that relate to the terms and conditions of employment, a
termination of employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly diminished internal responsibilities,
or other indices unique to a particular situation may be considered materially adverse actions.”
(alteration, citation, and internal quotation marks omitted)); cf. Petyan, 2015 WL 4104841, at *3
n.8 (“Examples of materially adverse employment actions include termination of employment, a
demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of
benefits, significantly diminished material responsibilities, or other indices . . . unique to a
particular situation.” (alteration in original) (internal quotation marks omitted) (quoting
Feingold, 366 F.3d at 152)); Ren Yuan Deng v. N.Y. State Office of Mental Health, No. 13-CV6801, 2015 WL 221046, at *15 (S.D.N.Y. Jan. 15, 2015) (noting in context of Family and
Medical Leave Act retaliation claim that “[i]t is well-established that termination and wage
deduction are adverse employment actions.”). Thus, Plaintiff has met this requirement.
2011 did not dissuade Plaintiff from allegedly making further complaints in or around November
2011. (See Pl.’s Counter 56.1 ¶¶ 16, 31–38.)
48
Accordingly, the Court turns to whether Plaintiff has presented evidence to suggest that
“a causal connection exist[ed] between the protected activity and the adverse action.” Kessler,
461 F.3d at 206 (internal quotation marks omitted). Plaintiff relies primarily on the temporal
relationship, arguing that it is sufficient that he complained of discrimination to Schou in late
spring or early summer 2011, (Pl.’s Counter 56.1 ¶ 16), shortly before his demotion in July 2011,
and that he complained to Carpanini in or after November 2011, (Pl.’s Counter 56.1 ¶¶ 31–38), a
few months before his termination in March 2012, (see Def.’s 56.1 ¶ 128; Pl.’s 56.1¶ 128).
Plaintiff also points to the other evidence of discrimination discussed above as evidence of
retaliation.
“[T]he causal connection needed for proof of a retaliation claim can be established
indirectly by showing that the protected activity was closely followed in time by the adverse
action.” Cifra v. Gen. Elec. Co., 252 F.3d 205, 217 (2d Cir. 2001) (internal quotation marks
omitted); see also Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002) (“We have held
that a close temporal relationship between a plaintiff’s participation in protected activity and an
employer’s adverse actions can be sufficient to establish causation.”). Here, it is not entirely
clear how much time elapsed between Plaintiff’s complaint to Schou in “spring or summer
2011,” (see Pl.’s Counter 56.1 ¶ 16), and his demotion in July 2011, (see Def.’s 56.1 ¶ 14; Pl.’s
56.1 ¶ 14), but no more than three or four months elapsed between Plaintiff’s complaint in
November 2011 and his termination on March 2, 2012. The case law in the Second Circuit is
unclear with regard to how much time can pass between a protected action and the adverse
employment action before no causal connection can be inferred, but the Second Circuit has
emphasized that it has not “drawn a bright line to define the outer limits beyond which a
temporal relationship is too attenuated to establish a causal relationship between the exercise of a
49
federal constitutional right and an allegedly retaliatory action.” See Gorman-Bakos v. Cornell
Co-op Extension of Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001); see also Littlejohn v.
City of New York, — F. 3d —, 2015 WL 4604250, at *15 (2d Cir. Aug. 3, 2015) (same); Perez v.
N.Y. State Office of Temp. & Disability Assistance, No. 14-CV-1621, 2015 WL 3999311, at *8
(S.D.N.Y. June 30, 2015) (same). And while some courts have held that three months is too long
to draw a causal inference based on the temporal relationship, others have held that fact finders
could draw temporal inferences from gaps between protected action and adverse employment
actions of three months or, indeed, much longer. Compare Kanhoye v. Altana Inc., 686 F. Supp.
2d 199, 209 (E.D.N.Y. 2009) (holding that a gap of “two and three months after the
complaints . . . is a sufficiently short gap to permit a reasonable inference of retaliation at the
prima facie stage”) and Pergament v. Fed. Express Corp., No. 03-CV-1106, 2007 WL 1016993,
at *14 (E.D.N.Y. Mar. 30, 2007) (holding that gaps of two and half months and less than a month
“suffice[] to satisfy [the plaintiff’s] burden of showing indirect causation”) with Cobian v. New
York City, No. 99-CV-10533, 2000 WL 1782744, at *18 (S.D.N.Y. Dec. 6, 2000) (“Standing
alone, the lapse of more than four months . . . is insufficient evidence of a causal connection.”),
aff’d, 23 F. App’x 82 (2d Cir. 2001); see also Gorman-Bakos, 252 F.3d at 554 (collecting cases).
On balance, a jury could conclude that Plaintiff has sufficiently set out a prima facie case for
retaliation based on the relatively short gap between protected activity and demotion and
termination, especially when combined with his other evidence of discriminatory animus.
b. Legitimate, Non-Discriminatory Reason
Because Plaintiff has made out a prima facie case for retaliation, the burden then shifts to
Defendant to provide a legitimate, non-discriminatory reason for its actions. Here, the actions at
issue are Plaintiff’s demotion and termination, the same actions that are the subject of Plaintiff’s
50
discrimination claims. As discussed in detail above, Defendant proffers legitimate reasons for its
actions—that Plaintiff was not performing adequately as a mechanic trainee and that Plaintiff
had accrued twenty-four absence points, which mandated dismissal under the terms of the CBA.
c. Pretext
The burden then shifts again to Plaintiff who must put forth evidence that the reason
given was pretextual. “Once the first two steps of the burden-shifting test have been satisfied,
‘the McDonnell Douglas framework disappears,’ and ‘the plaintiff must then produce evidence
and carry the burden of persuasion that the proffered reason for the allegedly retaliatory conduct
is a pretext.’” Villanti v. Cold Spring Harbor Cent. Sch. Dist., 733 F. Supp. 2d 371, 384
(E.D.N.Y. 2010) (brackets omitted) (citations omitted) (quoting Reg’l Econ. Cmty. Action
Program, Inc. v. City of Middletown, 294 F.3d 35, 49 (2d Cir. 2002), superseded by statute on
other grounds, ADA Amendments Act of 2008, Pub. L. No. 110–325, 122 Stat 3553; Sista v.
CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006)). As noted, “[t]he plaintiff may do this
by presenting additional evidence, or by relying on the evidence that supported the plaintiff’s
prima facie case.” Id. However, although “[t]he temporal proximity of events may give rise to
an inference of retaliation for the purposes of establishing a prima facie case of retaliation . . . [;]
without more, such temporal proximity is insufficient to satisfy [a plaintiff’s] burden to bring
forward some evidence of pretext.” El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir.
2010); see also Martel v. New England Home Care, Inc., No. 09-CV-1412, 2014 WL 3687738,
at *15–16 (D. Conn. July 22, 2014) (same). “Indeed, a plaintiff must come forward with some
evidence of pretext in order to raise a triable issue of fact.” El Sayed, 627 F.3d at 933.
With respect to Plaintiff’s demotion and termination claims, the temporal proximity,
combined with the evidence of pretext discussed in detail above, is sufficient to create a triable
51
issue of fact, and Defendant’s Motion for Summary Judgment is denied as to the retaliatory
demotion and termination claims.
5. Hostile Work Environment
“In order to prevail on a hostile work environment claim, a plaintiff must make two
showings.” Summa v. Hofstra Univ., 708 F.3d 115, 124 (2d Cir. 2013) (internal quotation marks
omitted). First, the plaintiff must show “that the harassment was sufficiently severe or pervasive
to alter the conditions of the victim’s employment and create an abusive working environment.”
Id. (internal quotation marks omitted). Second, the plaintiff must show “that there is a specific
basis for imputing the conduct creating the hostile work environment to the employer.” Id.
(internal quotation marks omitted). The Court will address each requirement in turn.
a. Establishing a Hostile Work Environment
A plaintiff can state a cause of action under Title VII by demonstrating that his or her
working environment is “overrun by racial antagonism.” Lopez v. S.B. Thomas, Inc., 831 F.2d
1184, 1189 (2d Cir. 1987). A hostile work environment claim is evaluated under the same
standard under Title VII as under the NYSHRL, see Marchuk v. Faruqi & Faruqi, LLP, — F.
Supp. 3d. —, 2015 WL 363625, at *2 (S.D.N.Y. Jan. 28, 2015), and § 1981, see Whidbee, 223
F.3d at 69; see also Massie v. Metro. Museum of Art, No. 11-CV-9549, 2015 WL 3833839, at *6
(S.D.N.Y. June 22, 2015) (“[The plaintiff’s] Title VII and NYSHRL discharge and hostile work
environment claims are analyzed like his § 1981 claims for the same . . . .”); Parra v. City of
White Plains, 48 F. Supp. 3d 542, 551 n.2 (S.D.N.Y. 2014) (“The same standards govern hostile
work environment claims under Title VII, Section 1981, and the NYSHRL.”).
To prove a hostile work environment claim, Plaintiff must produce evidence that “the
workplace [was] permeated with discriminatory intimidation, ridicule, and insult, that [was]
52
sufficiently severe or pervasive to alter the conditions of the victim’s employment.” Patterson v.
Cty. of Oneida, 375 F.3d 206, 227 (2d Cir. 2004) (internal quotation marks omitted); see also
Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 723–24 (2d Cir. 2010) (“In order
to establish a hostile work environment claim under 42 U.S.C. § 1981, a plaintiff 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.” (internal quotation marks
omitted)). Though a single incident may be severe enough to materially alter employment
conditions, see Patterson, 375 F.3d at 227, in general the actions taken by the defendant “must
be more than ‘episodic; they must be sufficiently continuous and concerted in order to be
deemed pervasive[,]’” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (quoting Perry v.
Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir.1997)). The test for determining whether a
workplace is a hostile work environment has both subjective and objective elements. See Alfano,
294 F.3d at 374. “[T]he misconduct shown must be ‘severe or pervasive enough to create an
objectively hostile or abusive work environment,’ and the victim must also subjectively perceive
that environment to be abusive.” Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993)); see also Harris, 510 U.S. at 21–22 (holding that conduct must be “severe or pervasive
enough to create an objectively hostile or abusive work environment—an environment that a
reasonable person would find hostile or abusive,” and the plaintiff must “subjectively perceive
the environment to be abusive”); Parra, 48 F. Supp. 3d at 551 (“The sufficiency of a hostile
work environment claim is analyzed both subjectively and objectively.”).
When determining whether an objectively hostile work environment exists, courts must
consider the totality of the circumstances, including the frequency, severity, and offensiveness of
the allegedly discriminatory conduct, whether the conduct was physically threatening or
53
humiliating, and whether it unreasonably interfered with an employee’s work performance. See
Patterson, 375 F.3d at 227. The Second Circuit “treats the first two of these factors—the
frequency and the severity of the misconduct—as the principal focus of the analysis.” See
Aulicino v. N.Y.C. Dep’t of Homeless Servs., 580 F.3d 73, 82 (2d Cir. 2009). “Core hostile work
environment cases involve misconduct that is both frequent and severe, for example, when a
supervisor utters blatant racial epithets on a regular if not constant basis and behaves in a
physically threatening manner.” Id. (internal quotation marks omitted). Even still, “an
employer’s motion for summary judgment must be denied if the claimed misconduct ranks
sufficiently highly on either axis.” Id. “Where reasonable jurors could disagree as to whether
alleged incidents of racial insensitivity or harassment would have adversely altered the working
conditions of a reasonable employee, the issue of whether a hostile work environment existed
may not properly be decided as a matter of law.” Patterson, 375 F.3d at 227. Finally, “[i]t is
axiomatic that the plaintiff also must show that the hostile conduct occurred because of a
protected characteristic.” Richards v. N.Y.C. Dep’t of Educ., No. 13-CV-16, 2015 WL 4164746,
at *10 (S.D.N.Y. July 10, 2015) (internal quotation marks omitted) (quoting Tolbert, 790 F.3d at
439).
Crediting his evidence, Plaintiff has proffered sufficient evidence for a jury to find that a
hostile work environment existed. There is evidence that, when he was a mechanic’s helper,
Plaintiff was assigned primarily to work with Walker. (Pl.’s Counter 56.1 ¶ 4 (citing McCall
Decl. ¶ 6).) Plaintiff claims that Walker “regularly referred to McCall as ‘Boy,’” and also
referred to him as “Black Boy” and “told him to move his ‘black ass.’” (Pl.’s Counter 56.1 ¶ 5
(citing McCall Decl. ¶ 6; McCall Dep. Tr. 235–36).) Plaintiff also claims that, after Plaintiff
became a mechanic trainee, Walker threatened to fight Plaintiff and, when Plaintiff tried to walk
54
away, Walker rammed into him, causing Plaintiff’s lip to bleed. (See Pl.’s Counter 56.1 ¶ 14
(citing McCall Decl. ¶ 9).) Plaintiff also claims that other co-workers regularly used racial slurs
and made racial jokes in Plaintiff’s presence and outside of his presence. (Pl.’s Counter 56.1 ¶ 8
(citing McCall Decl. ¶ 7; Crum Decl. ¶ 4).) For example, Plaintiff claims that a senior mechanic,
Decker, told Plaintiff that Decker’s dog was named “Nigger,” and referred to menial tasks
Plaintiff was assigned to as “nigger work.” (Pl.’s Counter 56.1 ¶¶ 12–13 (citing McCall Decl.
¶ 8).) Plaintiff also has submitted evidence from Crum that co-workers and managers regularly
referred to Plaintiff as a “nigger.” (Pl.’s Counter 56.1 ¶ 10 (citing Crum Decl. ¶¶ 4, 10).) In
particular, Crum has stated that Schou referred to Plaintiff as a “nigger” on multiple occasions.
(Pl.’s Counter 56.1 ¶ 11 (citing Crum Decl. ¶ 4).) According to Crum, Plaintiff and Crum,
because Crum worked with Plaintiff, were regularly assigned the most dangerous jobs in the
Maintenance Department. (Pl.’s Counter 56.1 ¶ 17 (citing Crum Decl. ¶ 7); see also Crum Decl.
¶ 10 (declaring he was treated badly because he worked with Plaintiff).) Furthermore, Plaintiff
has proffered that he found the above comments offensive. For example, Plaintiff has stated that
he made it clear he did not appreciate Walker’s comments, (see Pl.’s Counter 56.1 ¶ 7 (citing
McCall Decl. ¶ 6)), that Plaintiff found it “very offensive” when Decker told Plaintiff that
Decker’s dog was named “Nigger,” (id. ¶ 12 (citing McCall Decl. ¶ 8)), and that Plaintiff was
offended by Hager referring to him as “Aunt Jemima,” (id. ¶¶ 32–33 (citing McCall Decl. ¶ 15;
Crum Decl. ¶ 5)).
Plaintiff has provided sufficient evidence that he was subjected to severe racially
discriminatory language with frequency. For example, the use of the word “boy,” even by itself,
can be evidence of “racial animus,” depending on “various factors including context, inflection,
tone of voice, local custom, and historical usage.” Ash v. Tyson Foods, Inc., 546 U.S. 454, 456
55
(2006) (rejecting the argument that the word “boy” is only “evidence of discriminatory intent”
“when modified by a racial classification like ‘black’ or ‘white’” (some internal quotation marks
omitted)). Furthermore, the repeated use of the word “nigger” by Decker, as well as by
managers, could result in a reasonable jury finding that there was a hostile work environment.
Indeed, the Second Circuit has “emphasiz[ed] that perhaps no single act can more quickly alter
the conditions of employment and create an abusive working environment than the use of an
unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of his
subordinates.” Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2012)
(brackets and internal quotation marks omitted). And courts have held that even one use of the
word “nigger,” depending on the circumstances, is sufficient to go to a jury on a hostile work
environment claim. See, e.g., Lovejoy v. Gure-Perez, No. 10-CV-5748, 2014 WL 2459656, at *5
(E.D.N.Y. May 21, 2014) (“Even if [the] plaintiff established that being called ‘nigger’ was the
only incident of racial animus, this would suffice for a hostile work environment claim. Plaintiff
testified that she was called ‘nigger’ by her supervisor in an aggressive and intimating tone, with
saliva falling onto her body, and loudly enough for others to hear it.”), appeal withdrawn (Jan.
16, 2015). Moreover, the mere fact that Schou’s use of the word “nigger” allegedly occurred
outside of earshot of Plaintiff is not in itself dispositive. Rather, “the fact that a plaintiff learns
second-hand of a racially derogatory comment or joke by a fellow employee or supervisor also
can impact the work environment.” Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997).
Here, it is not exactly clear when Plaintiff learned of these alleged comments, but they provide
additional evidence for Plaintiff’s claim. Moreover, Plaintiff’s short tenure at Genpak means
that all of these events occurred within eighteen months. (See Def.’s 56.1 ¶¶ 5, 128–29; Pl.’s
56.1 ¶¶ 128–29.) Finally, Plaintiff’s evidence that he was regularly assigned the most dangerous
56
jobs, that Walker threatened to fight him and rammed into him, and that Hager treated him worse
than white employees bolsters Plaintiff’s contention that a jury could conclude that Plaintiff has
established a hostile work environment claim. See Rivera, 743 F.3d at 24 (“The use of racially
offensive language is particularly likely to create a hostile work environment when, as here, it is
presented in a physically threatening manner.” (internal quotation marks omitted)). For the
foregoing reasons, the Court concludes that Plaintiff has provided sufficient evidence from
which a jury could conclude that a hostile workplace existed.
b. Employer Liability
In addition to showing that a hostile work environment existed, “in order to establish
employer liability under Title VII[,] [§ 1981,] and the NYSHRL for hostile actions taken by
employees, a plaintiff must establish that the hostile work environment can be imputed to the
employer.” See Setelius v. Nat’l Grid Elec. Servs. LLC, No. 11-CV-5528, 2014 WL 4773975, at
*25 (E.D.N.Y. Sept. 24, 2014); see also Whidbee, 223 F.3d at 72 (“To prevail on their § 1981
claims the plaintiffs must show . . . a specific basis . . . for imputing the conduct that created the
hostile environment to the employer.” (second alteration in original) (internal quotation marks
omitted)).
i. Federal Law
The Supreme Court recently set out the following framework for when an employer
should be liable for harassment by employees under federal law, that is, under Title VII or
§ 1981.
If the harassing employee is the victim’s co-worker, the employer is liable only if
it was negligent in controlling working conditions. In cases in which the harasser
is a “supervisor,” however, different rules apply. If the supervisor’s harassment
culminates in a tangible employment action, the employer is strictly liable. But if
no tangible employment action is taken, the employer may escape liability by
establishing, as an affirmative defense, that (1) the employer exercised reasonable
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care to prevent and correct any harassing behavior and (2) that the plaintiff
unreasonably failed to take advantage of the preventive or corrective opportunities
that the employer provided.
Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013). Although Vance concerned Title VII,
see id., the Second Circuit has applied its framework and holdings to hostile work environment
claims under § 1981, see Wiercinski v. Mangia 57, Inc., 787 F.3d 106, 113–14 (2d Cir. 2015).
If the harassing employee is a co-worker, to show negligence by the employer in
controlling work conditions, a plaintiff must “demonstrate that the employer has either provided
no reasonable avenue for complaint or knew of the harassment but did nothing about it.” See
Dabney v. Christmas Tree Shops, 958 F. Supp. 2d 439, 460 (S.D.N.Y. 2013) (internal quotation
marks omitted), aff’d sub nom. Dabney v. Bed Bath & Beyond, 588 F. App’x 15 (2d Cir. 2014).
If an employer has notice of the harassment, i.e. that it knew or should have known, the “law
imposes upon the employer a duty to take reasonable steps to eliminate it.” See id. (internal
quotation marks omitted); see also Dillon v. Ned Mgmt., Inc., No. 13-CV-2622, 2015 WL
427921, at *10 (E.D.N.Y. Feb. 2, 2015) (“The employer is not liable unless it either (1) provided
no reasonable avenue for complaint, or (2) knew of the harassment and did nothing about it.”).
Here, there is evidence from which a jury could conclude that Plaintiff’s co-workers,
notably Decker and Walker, were responsible for the hostile work environment. The evidence
shows that Defendant provided a reasonable avenue for complaint and is thus not liable on that
basis. However, Plaintiff has offered evidence from which a jury could conclude that Defendant
knew about the harassment and took no steps to eliminate it. Specifically, Plaintiff claims that in
spring or early summer of 2011, he complained to Schou about racial harassment by co-workers,
including by Decker and Walker. (Pl.’s Counter 56.1 ¶ 16 (citing McCall Decl. ¶ 10).)
According to Plaintiff, after he complained to Schou, Schou did not take remedial action but
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merely started to treat Plaintiff worse than he did previously. (Pl.’s Counter 56.1 ¶ 18 (citing
McCall Decl. ¶ 10; Crum Decl. ¶ 7 (declaring that Plaintiff and Crum were “regularly assigned
the worst, most dangerous jobs”)).) Plaintiff further claims that he in fact went to Carpanini and
reported Hager’s “Aunt Jemima” comment, as well as about how he had been subjected to racial
slurs and jokes by Decker and others. (Pl.’s Counter 56.1 ¶ 36 (citing McCall Decl. ¶ 16).)
According to Plaintiff, Carpanini told McCall she would file a report with her boss, but Plaintiff
never heard back from her about his complaint. (Pl.’s Counter 56.1 ¶¶ 37–38 (citing McCall
Decl. ¶ 16).) Thus, a jury could conclude from this evidence that Defendant knew about the
racial harassment and did nothing.
As noted above, different rules apply if the harasser is a supervisor. First, the Supreme
Court has defined supervisor as someone empowered by the employer “to take tangible
employment actions against the victim, i.e., to effect a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.” See Vance, 133 S. Ct. at
2443 (internal quotation marks omitted). Under Burlington Industries, Inc. v. Ellerth, 524 U.S.
742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), “if a supervisor’s
harassment culminates in a tangible adverse employment action, the employer is strictly liable
for that supervisor’s harassment.” Setelius, 2014 WL 4773975, at *25; see also Redd v. N.Y.
Div. of Parole, 678 F.3d 166, 182 (2d Cir. 2012) (“If the ‘harassment culminate[d] in a tangible
employment action, such as discharge, demotion, or undesirable reassignment,’ the employer is
held strictly liable, and ‘[n]o affirmative defense is available.’” (alterations in original) (quoting
Ellerth, 524 U.S. at 765)). “But if no tangible employment action is taken as a result of the
harassment, or if any tangible employment action taken against the employee was not part of the
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supervisor’s discriminatory harassment, the employer may raise an affirmative defense.”
Setelius, 2014 WL 4773975, at *25 (internal quotation marks omitted). Turning to the
affirmative defense available to employers, “[w]ith respect to the first prong of this defense, an
employer ‘need not prove success in preventing harassing behavior in order to demonstrate that it
exercised reasonable care’ and ‘the existence of an anti-harassment policy with complaint
procedures is an important consideration.’” Grant v. United Cerebral Palsy of N.Y.C., Inc., No.
11-CV-18, 2014 WL 902638, at *9 (S.D.N.Y. Mar. 7, 2014) (quoting Leopold v. Baccarat, Inc.,
239 F.3d 243, 245 (2d Cir. 2001)). With respect to the second prong of the defense, “the
employer must show that the plaintiff ‘acted unreasonably in failing to avail herself of the
company’s internal complaint procedures,’ and then the burden shifts to the employee to ‘come
forward with one or more reasons why the employee did not make use of the procedures.’”
Grant, 2014 WL 902638, at *9 (quoting Leopold, 239 F.3d at 246).
The evidence shows that a jury could conclude that Plaintiff’s supervisors contributed to
the hostile work environment. In particular, the jury could conclude that Hager and Schou were
Plaintiff’s supervisors and their discriminatory comments contributed to the hostile work
environment. The jury also could reasonably find that racial harassment by both Hager and
Schou culminated in an adverse employment action—Plaintiff’s demotion and termination. If a
jury so concluded, then Defendant would be strictly liable and no affirmative defense would be
available. Furthermore, factual issues preclude summary judgment even if the affirmative
defense is available. Notably, Plaintiff provided evidence that he complained to Carpanini and
Schou about racial harassment and nothing was done and that he then spoke to his union
representative, Leigh Miller, about the racial harassment, and that Miller “told him ‘not to rock
the boat’ and that [Miller] did not want to hear about it from [P]laintiff.” (Pl.’s Counter 56.1
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¶ 18 (citing McCall Decl. ¶ 11).) Thus, the jury could decide that Plaintiff had a valid reason for
not following the procedures provided by his employer, as doing so might have been, or
appeared to have been, futile. See Redd, 678 F.3d at 183 (holding that summary judgment was
inappropriate because, “if the affirmative defense [was] available, there appear[ed] to be a
factual dispute to be resolved as to the sufficiency of [the plaintiff’s] complaints about [the
supervisor’s] conduct”); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 105 (2d Cir. 2010)
(“There is no requirement that a plaintiff exhaust all possible avenues made available where
circumstances warrant the belief that some or all of those avenues would be ineffective or
antagonistic.”).
ii. New York Law
Under New York law, unlike under federal law, “an employer is never strictly liable for
the conduct of employees, even if the harassing employee is a Plaintiff’s supervisor.” Marchuk,
2015 WL 363625, at *2; see also Sesay-Harrell v. N.Y.C. Dep’t of Homeless Servs., No. 12-CV925, 2013 WL 6244158, at *24 (S.D.N.Y. Dec. 2, 2013) (noting limited circumstances under
which liability can be imputed to employer for hostile work environment claims under New York
law); Brown v. City of New York, No. 11-CV-2915, 2013 WL 3789091, at *18 (S.D.N.Y. July
19, 2013) (same); State Div. of Human Rights ex rel. Greene v. St. Elizabeth’s Hosp., 487 N.E.2d
268, 269 (N.Y. 1985) (“An employer cannot be held liable for an employee’s discriminatory act
unless the employer became a party to it by encouraging, condoning, or approving it.” (internal
quotation marks omitted)). Rather, under New York law, “[a]n employer is only liable for
conduct that it encouraged, condoned, or expressly or impliedly approved.” Marchuk, 2015 WL
363625, at *2. The New York Court of Appeals has held that “[c]ondonation . . . contemplates a
knowing, after-the-fact forgiveness or acceptance of an offense,” and “[a]n employer’s
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calculated inaction in response to discriminatory conduct may, as readily as affirmative conduct,
indicate condonation.” St. Elizabeth’s Hosp., 487 N.E.2d at 269. Here, as discussed above,
Plaintiff claims he complained multiple times about the racial harassment and no corrective
action was taken, which evidence would permit a jury to decide that the employer condoned it.
See Guzman v. Macy’s Retail Holdings, Inc., No. 09-CV-4472, 2010 WL 1222044, at *11
(S.D.N.Y. Mar. 29, 2010) (holding that an allegation that the plaintiff complained to her
employer’s human resources regional vice president and he “not only refused to investigate but
threatened her with termination if she made further complaints to senior level management” was
sufficient to establish condonation under New York law); Melendez v. Int’l Serv. Sys., Inc., No.
97-CV-8051, 1999 WL 187071, at *15 (S.D.N.Y. Apr. 6, 1999) (holding that the plaintiff’s
allegation that he “reported his discriminatory treatment . . . to numerous people up the chain of
command in the management . . . , yet no remedial action was taken” was sufficient under New
York law); Seepersad v. D.A.O.R. Sec., Inc., No. 97-CV-2086, 1998 WL 474205, at *5
(S.D.N.Y. Aug. 12, 1998) (holding that summary judgment on NYSHRL claim was
inappropriate when there were factual questions regarding the plaintiff’s complaints and the
corrective action taken in response). Therefore, Defendant’s Motion for Summary Judgment on
Plaintiff’s hostile work environment claim is denied.
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III. Conclusion
For the foregoing reasons, Defendant's Motion for Summary Judgment is denied. The
Clerk of the Court is respectfully directed to terminate the pending Motion. (See Dkt. No. 21 .)
SO ORDERED.
Dated:
September~ 2015
White Plains, New York
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