Vaughn v. Empire City Casino at Yonkers Raceway et al
Filing
102
OPINION & ORDER re: 79 MOTION for Summary Judgment pursuant to FRCP Rule 56, filed by Ryan Monroe, Robert Galterio, Michael Palmiere, Empire City Casino at Yonkers Raceway. The Motion is granted in part and denied in part. Defend ants' Motion is granted with respect to Plaintiff's Title VII and NYSHRL claims for hostile work environment and retaliation, but denied with respect to Plaintiff's Title VII and NYSHRL claims for discrimination. Defendants' Motio n is denied with respect to its effort to limit damages based on the consent award, without prejudice to raise that argument if and when damages are determined by a fact finder. The Court will hold a conference on July 28, 2017 at 2:30 PM. The Clerk of Court is respectfully requested to terminate the pending Motion, (Dkt. No. 79.), and as further set forth herein. (Status Conference set for 7/28/2017 at 02:30 PM before Judge Kenneth M. Karas.) (Signed by Judge Kenneth M. Karas on 7/14/2017) (ras)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PARNELL VAUGHN,
Plaintiff,
No. 14-CV-10297 (KMK)
v.
EMPIRE CITY CASINO AT YONKERS
RACEWAY, MICHAEL PALMIERE,
RYAN MONROE, ROBERT GALTERIO,
OPINION & ORDER
Defendants.
Appearances:
Eileen M. Burger, Esq.
Mitchell B. Pollack, Esq.
Mitchell Pollack & Associates PLLC
Tarrytown, NY
Counsel for Plaintiff
Joseph DeGiuseppe, Jr., Esq.
William P. Harrington, Esq.
Justin M. Gardner, Esq.
Bleakley Platt & Schmidt, LLP
White Plains, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Plaintiff Parnell Vaughn (“Plaintiff”) brought this Action against Defendants Empire City
Casino at Yonkers Raceway, Michael Palmiere, Ryan Monroe, and Robert Galterio
(collectively, “Defendants”), alleging that Defendants unlawfully discriminated against him and
retaliated against him during his employment. (See Am. Compl. (Dkt. No. 18).) Before the
Court is Defendants’ Motion for Summary Judgment. (See Dkt. No. 79.) For the following
reasons, the Motion is granted in part and denied in part.
I. Background
A. Factual Background
The following facts are taken from the documents submitted and the Parties’ respective
statements pursuant to Local Rule 56.1.
1. The Parties
Defendant Empire City Casino at Yonkers Raceway (“YRC”) is a New York corporation
based in Yonkers, New York. (See Aff. of Robert Galterio (“Galterio Aff.”) ¶ 3 (Dkt. No. 81);
see also Defs.’ Local Rule 56.1 Statement of Undisputed Material Facts (“Defs.’ 56.1”) ¶ 1 (Dkt.
No. 85); Pl.’s Counter-Statement of Material Facts Pursuant to Federal Rule 56.1 (“Pl.’s 56.1
Resp.”) ¶ 1 (Dkt. No. 96).)1 Defendant Robert Galterio was the General Manager of YRC from
2008 to 2013, (see Aff. of Joseph DeGiuseppe, Jr. (“DeGiuseppe Aff.”) Ex. C (“Galterio I Tr.”)
11–13 (Dkt. No. 84); see also Defs.’ 56.1 ¶ 4; Pl.’s 56.1 Resp. ¶ 4), and was YRC’s Chief
Operation Officer and Vice President from 2005 to 2008, and has been in that position again
since 2013, (see Galterio I Tr. 12–13; see also Defs.’ 56.1 ¶¶ 3–4; Pl.’s 56.1 Resp. ¶¶ 3–4).
Defendant Michael Palmieri was the Director of Video Gaming Operations at YRC from July 16,
2007 to November 26, 2013, and was Vice President of Video Gaming Operations from
November 27, 2013 to April 7, 2015. (See Galterio Aff. Ex. 4; see also Defs.’ 56.1 ¶ 6; Pl.’s
56.1 Resp. ¶ 6.)2 Defendant Ryan Munroe was hired by YRC in September 2008 as a Video
1
Plaintiff’s response to Defendants’ Local Rule 56.1 Statement of Undisputed Material
Facts is riddled with legal arguments. A 56.1 statement is not an opportunity to present
arguments that do not fit in the briefing; it is an opportunity to establish the factual fault lines on
a motion for summary judgment. Plaintiff’s counsel is advised to adhere to this guideline in the
future.
2
Michael Palmieri’s name is misspelled as “Palmiere” in the Amended Complaint.
2
Gaming Machines (“VGM”) Manager and was promoted in August 2015 to his current position
of Director of Video Gaming Operations. (See DeGiuseppe Aff. Ex. D (“Munroe I Tr.”) 14; see
also Defs.’ 56.1 ¶¶ 7–8; Pl.’s 56.1 Resp. ¶¶ 7–8.)3 Non-party Cheri Czerniowski was hired by
YRC in July 2006 as a VGM Manager, became Assistant Director of the VGM Department in
2007, served temporarily as the Interim Director of the VGM Department, and resumed her
duties as Assistant Director of the VGM Department after Munroe became the Director of Video
Operations. (See DeGiuseppe Aff. Ex. E (“Czerniowski I Tr.”) 12; see also Defs.’ 56.1 ¶¶ 9–10;
Pl.’s 56.1 Resp. ¶¶ 9–10.)
Plaintiff, a Black male, was hired by YRC on or about December 7, 2006 as a VGM
Attendant and remained in that position until the effective date of his dismissal on October 5,
2013. (See DeGiuseppe Aff. Ex. B (“Vaughn I Tr.”), at 11; Aff. of Parnell Vaughn (“Vaughn
Aff.”) ¶ 1 (Dkt. No. 92); see also Defs.’ 56.1 ¶ 11; Pl.’s 56.1 Resp. ¶ 11.) Plaintiff and all other
regular full-time and part-time VGM Attendants and Promotion Booth Representatives employed
by YRC are represented by Local 1105, Communications Workers of America, AFL/CIO
(“Local 1105”). (See Vaughn I Tr. 10; Decl. of Robert Shannon in Supp. of the Summ. J. Mot.
(“Shannon Decl.”) Ex. 1 (Dkt. No. 80); see also Defs.’ 56.1 ¶ 13; Pl.’s 56.1 Resp. ¶ 13.)4
Throughout Plaintiff’s employment, Local 1105 and YRC were parties to a collective bargaining
agreement. (See Shannon Decl. Ex. 1.) Article 6 of that collective bargaining agreement sets
forth the grievance and arbitration provisions relating to disciplinary and termination issues, and
3
Ryan Munroe’s name is misspelled as “Monroe” in the Amended Complaint.
4
To the extent there are specific allegations in Shannon’s declaration that Plaintiff
disputes, the Court will take those into consideration. The Court will not, however, disregard the
entirety of Shannon’s declaration on this Motion simply because Plaintiff has speculated that
Shannon may have received some incentive from YRC for providing the declaration, (see Pl.’s
56.1 Resp. ¶ 69), or because Plaintiff finds Shannon’s explanations “unlikely,” “incredible,” or
“unbelievable,” (see Vaughn Aff. ¶¶ 12–14).
3
Article 7 provides that employees may be discharged only for “just cause” and gives Local 1105
the right to grieve any discharge “that it believes is not for just cause.” (Id. at 9–13.)
2. Casino Rules and Policies
YRC is subject to Section 5117.1 of the Gaming Commission Rules, which provides:
No video lottery gaming agent, representative, licensed employee or contractor
thereof, shall allow, permit or suffer any person under the age of 18 years (underage
person) to: . . . (3) loiter or remain on the gaming floor longer than reasonably
necessary for a legitimate non-gaming purpose or to reach a destination that is not
on the gaming floor.”
(DeGiuseppe Aff. Ex. NN; see also Defs.’ 56.1 ¶ 16; Pl.’s 56.1 Resp. ¶ 16.) Section 5113 of the
Gaming Commission Rules sets forth the various penalties that may be imposed for violations of
the rules, which include, among other things, revocation or suspension of the casino’s Video
Lottery Gaming License. (See DeGiuseppe Aff. Ex. OO; see also Defs.’ 56.1 ¶ 17; Pl.’s 56.1
Resp. ¶ 17.) YRC’s VGM Departmental Policy VGM-GA011 instructs VGM Attendants to
“[c]ontinuously scan [the] area to observe underage patrons,” and to “[i]mmediately notify a
VGM Manager/Assistant Manager (VGM Ops 1) or Security (Security Ops 1) by two-way radio
for assistance.” (See DeGiuseppe Aff. Ex. I; see also Defs.’ 56.1 ¶ 18; Pl.’s 56.1 Resp. ¶ 18.)
Plaintiff is familiar with this provision. (See Vaughn I Tr. 30–33; see also Defs.’ 56.1 ¶ 21; Pl.’s
56.1 Resp. ¶ 21.)
YRC’s Employee Handbook sets forth additional information regarding the monitoring of
underage gambling, saying that “[a]ny employee observing an individual gambling who may be
under the age of eighteen (18) should notify Security or their immediate supervisor,” and that
“[s]ecurity shall make routine checks of identification and maintain a log of such requests.”
(DeGiuseppe Aff. Ex. F, 41; see also Defs.’ 56.1 ¶ 25; Pl.’s 56.1 Resp. ¶ 25.) Plaintiff has
4
acknowledged that he has read those portions of the Employee Handbook. (See Vaughn I Tr.
28–30; see also Defs.’ 56.1 ¶ 26; Pl.’s 56.1 Resp. ¶ 26.)
3. Munroe’s Treatment of Plaintiff
Plaintiff alleges that beginning in 2009, Munroe, one of his supervisors, began to use
abusive and racist language toward him.5 Specifically, Plaintiff alleges that in 2009, Munroe
became angry at Plaintiff and used the “N-word” for the first time. (See Decl. of Eileen M.
Burger (“Burger Decl.”) Ex. 3 (“Vaughn II Tr.”), at 75–76 (Dkt. No. 91); see also Pl.’s 56.1
Resp. ¶ 114.)6 In mid-2010, while Plaintiff was fixing a video gaming machine, Munroe walked
by and told Plaintiff, “[y]ou know why I put you in the N section, because that is where all the
Ns need to be,” an apparent reference to Section N on the casino floor. (Vaughn II Tr. 81–82;
see also Pl.’s 56.1 Resp. ¶ 116.) In 2011, Chancy Marsh, a “cage supervisor,” heard Munroe tell
Plaintiff, in response to a suggestion by Plaintiff that a gaming machine be moved, to “[s]tay in
your place, that’s our job,” and “you need to stay in your place, nigger.” (Vaughn II Tr. 72–74;
Aff. of Chancy Marsh IV (“Marsh Aff.”) ¶¶ 4–5 (Dkt. No. 93); see also Pl.’s 56.1 Resp. ¶ 117.)
In April 2012, Marsh witnessed another incident in which Munroe referred to Plaintiff and
Marsh as “Obama Niggers.” (See Vaughn II Tr. 77–78; Marsh Aff. ¶ 6; see also Pl.’s 56.1 Resp.
¶ 118.) Marsh told Galterio about Munroe referring to Plaintiff and Marsh as “Obama Niggers,”
5
Because Plaintiff included these allegations in his statement of additional material facts
and Defendants did not respond to those statements, the Court cannot discern whether
Defendants deny that Munroe used the language described. However, as Plaintiff is the nonmovant, the Court will assume all factual allegations supported by the record, even if disputed, in
Plaintiff’s favor for the purpose of this Motion.
6
The transcript of Plaintiff’s deposition testimony is divided into two sets of citations
(Vaughn I Tr. and Vaughn II Tr.) because the Parties have not provided the complete transcript
of Plaintiff’s deposition and have instead cited to the limited excerpts provided by each Party on
this Motion. Other deposition transcripts are similarly cited.
5
but Galterio merely responded, “listen, I don’t feel like dealing with you people, report it to HR.”
(Marsh Aff. ¶ 7; see also Pl.’s 56.1 Resp. ¶ 119.) In 2013, Munroe told Plaintiff “to be a good
little black monkey and start moving faster to [his] machine.” (Vaughn II Tr. 85; see also Pl.’s
56.1 Resp. ¶ 120.) Munroe continued to use the “N-word” at least once a week throughout 2013,
and Plaintiff estimates that Munroe used the word more than 100 times during Plaintiff’s time
with YRC. (See Vaughn II Tr. 76, 83; see also Pl.’s 56.1 Resp. ¶ 121.)7
In accordance with the instructions in the Employee Handbook regarding harassment and
discrimination, (see DeGiuseppe Aff. Ex. F, at 35; see also Pl.’s 56.1 Resp. ¶ 104), Plaintiff
made complaints about Munroe’s behavior to Palmieri, the VGM Director, on at least two
occasions, (see Vaughn Aff. ¶ 18; see also Pl.’s 56.1 Resp. ¶ 105). No action was taken by
Palmieri in response to those complaints, (see Vaughn Aff. ¶ 18), although Czerniowski’s 2009
Performance Review of Munroe noted disapproval of Munroe’s use of “lingo,” (see Burger Decl.
Ex. 8; see also Pl.’s 56.1 Resp. ¶ 122). After Plaintiff complained to Palmieri about Munroe,
Munroe confronted Plaintiff and warned him that if he continued to complain about Munroe’s
behavior, Plaintiff could be terminated. (See Vaughn II Tr. 79–80; see also Pl.’s 56.1 Resp.
¶ 106.) After this encounter sometime in or before 2010, Plaintiff stopped complaining about
Munroe’s behavior because he was “too afraid to speak up.” (See Vaughn II Tr. 79–82; see also
Pl.’s 56.1 Resp. ¶ 107.)
7
There are other allegations of instances where Munroe used racial epithets or other
offensive language, (see, e.g., Pl’s 56.1 Resp. ¶¶ 103, 115), but those allegations are not set forth
in a sworn declaration or affidavit, and instead appear only either in the Amended Complaint or
the transcript of court proceedings. The Court does not consider these allegations in this Motion
because “with a motion for summary judgment adequately supported by affidavits, the party
opposing the motion cannot rely on allegations in the complaint, but must counter the movant’s
affidavits with specific facts showing the existence of genuine issues warranting a trial.”
McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004).
6
4. Incident With Hassan
Plaintiff alleges that on July 27, 2013, he reported an incident to Czerniowski wherein his
supervisor, Adeel Hassan, failed to promptly respond to Plaintiff’s call for a supervisor after a
customer hit a jackpot. (See Vaughn II Tr. 89–90; see also Pl.’s 56.1 Resp. ¶ 125.) The next
day, on July 28, 2013, Vaughn and Hassan were involved in an incident with one another, the
details of which are the subject of some dispute. At some point, someone at YRC viewed the
surveillance footage of the incident and put together a surveillance log of that footage. (See
Defs.’ 56.1 ¶ 32; Pl.’s 56.1 Resp. ¶ 32.) That summary, the Video Review Request surveillance
summary (the “VRR”), relays the following information:
-On July 28, 2013, Plaintiff clocked in for work at approximately 17:04 (according
to the timer on the footage);
-After clocking in at the VGM office, he left the office at 17:06 with VGM Assistant
Manager LaMont Brown;
-At 17:07, Plaintiff reentered the VGM office;
-At 17:10, he left the VGM office with VGM Attendant John Francesconi;
-At 17:12, Plaintiff entered the VGM office again as Francesconi walked out onto
the casino floor;
-At 17:14, Plaintiff exited the VGM office and spoke with VGM Attendant Shaun
Saldivia outside the employee bank;
-At 17:17, Hassan walked up to Plaintiff and pointed to his own wrist;
-After the two spoke for a moment, Plaintiff entered the employee bank at 17:17.
(See Aff. of Caralyn Taromina Ex. 1 (“July 28 VRR”) (Dkt. No. 83).) The VRR indicates that it
was prepared at the request of Palmieri, (see id.), but Plaintiff disputes that this is accurate, (see
Pl.’s 56.1 Resp. ¶ 32). The Parties also dispute who put together the VRR, with Defendants
claiming it was Caralyn Taromina and Plaintiff arguing that the evidence is inconclusive on this
7
issue and pointing out that none of Defendants could recall during their depositions who drafted
the VRR, (see Defs.’ 56.1 ¶ 32; Pl.’s 56.1 Resp. ¶ 32), but there appears to be no disagreement
that the VRR is a generally accurate summary of the events that took place, other than some
ambiguity as to whether the timestamp on the footage aligns perfectly with YRC’s time clock
records, (see Defs.’ 56.1 ¶ 33; Pl.’s 56.1 Resp. ¶ 33; see also Burger Decl. Ex. 4 (“Munroe II
Tr.”), at 136). The surveillance footage that the VRR purports to summarize has not been
produced in this litigation.
Whatever the circumstances of the encounter, Plaintiff, believing Hassan’s behavior to be
retaliation for Plaintiff’s complaint about his job performance the night before, thereafter sought
to make a complaint to Czerniowski about Hassan’s alleged harassment, (see Vaughn II Tr. 96;
Munroe II Tr. 89; Vaughn Aff. ¶¶ 19–20; see also Pl.’s 56.1 Resp. ¶ 127), but on his way to the
VGM office was intercepted by Munroe, (see Vaughn II Tr. 96; Munroe II Tr. 89–90; see also
Pl.’s 56.1 Resp. ¶ 128). The two stepped into the VGM office where Plaintiff relayed to Munroe
that he felt he was being harassed by Hassan in retaliation for his comments to Czerniowski the
day before. (See Munroe II Tr. 89–91; see also Defs.’ 56.1 ¶ 28; Pl.’s 56.1 Resp. ¶ 28.)
According to Munroe, he told Plaintiff that he would investigate the matter and instructed
Plaintiff to return to the casino floor. (See Munroe II Tr. 90.)
Following this exchange, Defendants aver that Hassan met with Munroe the same day
and told him that Plaintiff had twice failed to follow Hassan’s directive to proceed to his
assigned work area and was disrespectful to Hassan, asking Hassan, “What are you going to do
about it?” (Munroe I Tr. 91–92; see also Defs.’ 56.1 ¶ 31.) Although Plaintiff does not dispute
that Munroe met with Hassan after speaking with Plaintiff, (see Pl.’s 56.1 Resp. ¶ 31), Plaintiff
does dispute Hassan’s account, saying that he was engaged only briefly with Shaun Saldivia to
8
discuss a work issue, that Hassan quickly became agitated and harassing when Plaintiff did not
immediately cease his conversation with Saldivia, and that he never told Hassan, “What are you
going to do about it?”, (see Vaughn II Tr. 90–95; Vaughn Aff. ¶¶ 20–21; see also Pl.’s 56.1
Resp. ¶ 126).
According to Munroe, he next called surveillance and asked them to inspect the footage
to determine how many times Hassan had approached Plaintiff, and also asked them to describe
Plaintiff’s and Hassan’s “general mannerisms.” (See Munroe II Tr. 93–94; see also Defs.’ 56.1
¶ 38; see also Pl.’s 56.1 Resp. ¶ 38.) Based on Munroe’s conversations with the surveillance
team (Munroe testified that he did not himself view the footage), he believed that Plaintiff was
the aggressor. (See Munroe II Tr. 100–01.) Munroe also checked the time clock software and
determined that Plaintiff had punched in at 5:02 (his scheduled shift started at 5:00). (See id. at
94–95.)
There is some dispute as to what happened after Munroe spoke with Plaintiff, Hassan,
and the surveillance team. Munroe testified that he spoke to Palmieri and reported his basic
findings, after which Palmieri instructed him to send Plaintiff home for the day and suspend him
pending an investigation. (See id. at 102, 105; see also Defs.’ 56.1 ¶ 39.) Plaintiff avers,
however, that an email sent from Munroe to Palmieri on September 12, 2013, which included a
summary of the events at issue, suggests that it was Munroe who made the decision to
temporarily suspend Plaintiff. (See Burger Decl. Ex. 17 (“Summary of Facts”); see also Burger
Decl. Ex. 5 (“Galterio II Tr.”), at 95–96; Pl.’s 56.1 Resp. ¶ 39.) In any event, after the decision
was made to send Plaintiff home pending an investigation, Munroe, Hassan, Plaintiff, and
Plaintiff’s union representative, Colleen Smith, met in Czerniowski’s office, wherein Munroe
9
informed Plaintiff that he was being suspended pending an investigation. (See Munroe I Tr.
102–03; see also Defs.’ 56.1 ¶¶ 42–43; Pl.’s 56.1 Resp. ¶¶ 42–43.)
At some point, Munroe (or, perhaps, someone else) drafted the first Notice of
Disciplinary Action, which is dated July 29, 2013 and purports to relay events that transpired on
July 29, formally suspending Plaintiff pending an investigation. (See Burger Decl. Ex. 11; see
also Munroe II Tr. 119–20.) Under “Type of Violation,” the boxes for “Unsatisfactory Work
Quality,” “Insubordination,” and “Abuse of Company Time” are checked. (See Burger Decl. Ex.
11.) The signatures of Munroe and Hassan indicate that the notice was signed on July 28, 2013,
notwithstanding that it is otherwise dated July 29, 2013. (See id.; see also Defs.’ 56.1 ¶ 41.)
Plaintiff argues, however, that some evidence indicates that the document was actually drafted
on July 29 (the day after the incident and suspension) and backdated by Munroe to make it
appear as though it had been drafted and signed on July 28. (See Burger Decl. Exs. 11, 12; see
also Pl.’s 56.1 Resp. ¶ 41.) Plaintiff did not sign the first Notice of Disciplinary Action, (see
Burger Decl. Ex. 11; see also Defs.’ 56.1 ¶ 44; Pl.’s 56.1 Resp. ¶ 44), though Plaintiff attests that
Local 1105 instructs its members not to sign such forms, (see Vaughn Aff. ¶ 25; see also Pl.’s
56.1 Resp. ¶ 44). It is unclear whether Munroe prepared and presented to Plaintiff the first
Notice of Disciplinary Action on July 28, 2013, before he sent Plaintiff home. (Compare
Munroe II Tr. 120–21 (testifying that he believed he prepared the first Notice of Disciplinary
Action on July 28, before the meeting with Plaintiff and Colleen), with Vaughn Aff. ¶ 25
(denying that Munroe presented him with the first Notice of Disciplinary Action on July 28,
2013).)
Following the meeting, Munroe instructed Hassan to draft a statement detailing what
happened during the incident. (See Munroe II Tr. 106, 112; see also Defs.’ 56.1 ¶ 46; Pl.’s 56.1
10
Resp. ¶ 46.) Hassan provided that statement in an email message dated July 29, 2013. (See
DeGiuseppe Aff. Ex. LL; see also Defs.’ 56.1 ¶ 46; Pl.’s 56.1 Resp. ¶ 46.) Before Munroe
received Hassan’s statement, however, he drafted his own email message, summarizing the July
28, 2013 incident, which he sent to the VGM management team. (See Munroe I Tr. 106–08;
Summary of Facts; see also Defs.’ 56.1 ¶ 45; Pl.’s 56.1 Resp. ¶ 45.) The entirety of Munroe’s
email was as follows:
Team….
Parnell has been suspended pending investigation for an incident at the start of his
shift today.
At 5:02pm Parnell punched in and proceeded to speak with John F inside and
outside of the office until approximately 5:10pm. Christine had to go retrieve him
from the vestibule and tell him to get his keys and radio and get on the floor. He
then got his belongings and went to the front of satellite at 5:12pm. He talked to
Shaun there for 2 minutes and Adeel walked by and asked him to get on the floor.
He did not stop his conversation, or move towards satellite. Before Adeel turned
the corner to go to Rd. 4 he looked back and saw that Parnell was carrying on. He
then turned around and approached him again, he told him to get on the floor again
and Parnell’s response was “What are you going to do about it?”. Based on these
facts Parnell was suspended for insubordination and Poor Work Quality.
Thanks.
(Summary of Facts.)
Munroe testified that he had no further involvement in the investigation of the incident
between Plaintiff and Hassan. (See Munroe I Tr. 110–11; see also Defs.’ 56.1 ¶ 47.) Plaintiff
disputes this, but points out only that the VGM management team relied heavily on Munroe’s
summary of the facts. (See Pl.’s 56.1 Resp. ¶ 47.)8 The only other involvement by Munroe
8
Plaintiff also points to testimony from Czerniowski that Munroe “may have” generally
investigated grievances, (see Pl.’s 56.1 Resp. ¶ 47), but that testimony, which is equivocal at
best, does nothing to refute Munroe’s testimony that he had no further involvement in this
dispute.
11
mentioned by Plaintiff is an email from Munroe to Czerniowski on July 30, 2013, asking
Czerniowski to remind whatever manager was on duty when Plaintiff returned from his
suspension to give Plaintiff his “First Notice Returned From Suspension.” (See id. (citing Burger
Decl. Exs. 14, 15).) Whatever weight should be given to this communication, the Parties are
thus in agreement that Munroe’s involvement in the investigation after July 28, 2013 was limited
to a one-line email sent on July 30. (See Defs.’ 56.1 ¶ 47; Pl.’s 56.1 Resp. ¶ 47.)
The events immediately following Plaintiff’s suspension are the subject of some
ambiguity. Czerniowski was asked by Palmieri to handle Plaintiff’s return to work, as Palmieri
was off work. (See Czerniowski I Tr. 51–52; see also Defs.’ 56.1 ¶ 48; Pl.’s 56.1 Resp. ¶ 48.)
Czerniowski, however, did not conduct any investigation of her own, and accepted the facts in
Munroe’s Summary of Facts as true. (See Burger Decl. Ex. 6 (“Czerniowski II Tr.”), at 61–62;
see also Pl.’s 56.1 Resp. ¶¶ 152–53.) She interpreted Palmieri’s instructions to mean that she
should coordinate with Danette Jordan-Woods, the director of human resources, to determine
what the appropriate disciplinary action should be. (See Czerniowski II Tr. 54.) Czerniowski
emailed Jordan-Woods, who she believed was already aware of the situation, that she was going
to return Plaintiff from his suspension on July 30, but wanted Jordan-Woods’s recommendation.
(See id.; see also DeGiuseppe Aff. Ex. T.) Jordan-Woods asked for Hassan’s statement, which
Czerniowski forwarded to her. (See Czerniowski II Tr. 58; DeGiuseppe Aff. Ex. T.) The record
does not reflect, however, whether Jordan-Woods ever gave her input on Plaintiff’s suspension,
nor does it reflect who made the final decision to return Plaintiff from his suspension after two
days, although Czerniowski believed that it was Palmieri’s decision to suspend Plaintiff for two
days without pay. (See Czerniowski II Tr. 55, 71.) Moreover, Czerniowski was not sure
whether Jordan-Woods or Palmieri, or anyone else for that matter, conducted any further
12
investigation into the incident, although she believed that someone would have viewed the
surveillance footage. (See id. at 54–55.) As Palmieri was not deposed, the scope of his
investigation and involvement, if any, in Plaintiff’s discipline is largely a matter of speculation.
In any event, when Plaintiff returned to work from his suspension on July 30,
Czerniowski drafted a second Notice of Disciplinary Action, (see Burger Decl. Ex. 15; see also
Defs.’ 56.1 ¶ 53; Pl.’s 56.1 Resp. ¶ 53), which Czerniowski described as the document that puts
an employee, like Plaintiff, on notice of the disciplinary incident, (see Czerniowski II Tr. 67).
Under “Type of Violation,” the boxes for “Unsatisfactory Work Quality” and “Insubordination”
are checked. (See Burger Decl. Ex. 15.) The description of the incident closely matches the
description provided by Munroe in the Summary of Facts. (See id.) On the second page, the
second Notice of Disciplinary Action states that Plaintiff’s actions were “in violation of VGM
policy VGM003,” and references three rules regarding rude behavior and failure to comply with
supervisor instructions and departmental rules. (Id.) Directly below the three rules are the words
“Theft of time,” with no other explanation. (Id.) The second Notice of Disciplinary Action is
signed by Czerniowski. (See id.) Where Plaintiff’s signature would be, it says “Refused to
sign,” and below Czerniowski’s signature is a notation by Vaunesha Cole, (id.), whom
Czerniowski identified as the shop steward for Local 1105, (see Czerniowski II Tr. 66).
Czerniowski testified that if the allegations against Plaintiff were substantiated, he would have
lost pay during his two-day suspension. (See id. at 67.)
Plaintiff’s and Local 1105’s response to the suspension is somewhat unclear. At some
point after the incident, Plaintiff filed a “Statement of Occurrence” with the union, setting forth
his version of the events. (See Vaughn II Tr. 117; Burger Decl. Ex. 16; see also Defs.’ 56.1 ¶ 57;
Pl.’s 56.1 Resp. ¶ 57.) Although not sworn to, and thus of questionable value on this Motion, the
13
Statement of Occurrence sets forth some of the missing details in the record. Namely, Plaintiff
states that he was never given an opportunity to give his side of the story to a union
representative; that after being sent home, he received a call from Munroe the next day telling
him that he was suspended that day as well; and that he did not receive a Notice of Disciplinary
Action until he returned to work and met with Czerniowski and Cole on July 30. (See Burger
Decl. Ex. 16.) On September 11, 2013, Jordan-Woods wrote Palmieri, copying Czerniowski,
saying that human resources had met with the union that day to discuss Plaintiff’s suspension
and asking Palmieri to give her a call to discuss, as she was “[n]ot sure what led to [his]
suspension and was hoping [Palmieri] could provide some insight.” (Burger Decl. Ex. 21.)
Presumably as a reaction to that request, Palmieri emailed Munroe the next morning asking him
to a write up a summary of the incident. (See Summary of Facts.) Munroe promptly responded,
forwarding the Summary of Facts he had sent the management team in July and alerting Palmieri
that before Hassan had spoken to Munroe about the incident, Plaintiff had come off the floor to
discuss the incident with Munroe. (See id.) The Court has no information as to whether Palmieri
and Jordan-Woods spoke after that (neither was deposed), nor can it discern whether JordanWoods spoke again to Local 1105 about the incident. On September 17, 2013, however, the
union wrote Jordan-Woods with a list of the grievances it intended to discuss at an upcoming
meeting, and Plaintiff’s suspension was among them. (See Burger Decl. Ex. 19.)
Although Galterio testified that a proper investigation of the incident between Plaintiff
and Hassan would have included an interview of Saldivia, (see Galterio II Tr. 86–87), Munroe
did not interview Saldivia, (see Munroe II Tr. 92; see also Czerniowski II Tr. 72). Saldivia was
not disciplined for congregating while on duty or for “theft of time.” (See Vaughn II Tr. 103;
Czerniowski II Tr. 73; see also Pl.’s 56.1 Resp. ¶ 133.)
14
5. Underage Gambling Incident
On September 22, 2013, an underage youth was spotted on the floor at YRC. Many of
the youth’s movements and interactions with staff members were captured on surveillance
footage, which has been both summarized and provided to the Court for review. As with the
footage relating to the incident between Plaintiff and Hassan, there is some argument from
Plaintiff about whether Jennifer Monaco, who purports to have drafted the summary of the
footage, (see Aff. of Jennifer Monaco (Dkt. No. 82)), actually did so. More specifically, Plaintiff
complains that he was not aware until summary judgment that Monaco is alleged to have drafted
the summary, and believes he is entitled to cross-examine Monaco regarding the authenticity of
the summary on that basis alone. (See Pl.’s 56.1 Resp. ¶ 59.) Notably, despite contesting the
authenticity of the summary, Plaintiff has cited it and relied on it in his statement of additional
material facts. (See, e.g., Pl.’s 56.1 Resp. ¶¶ 157, 159, 166–69.) Whatever the merits of
Plaintiff’s argument, however, the Court is in possession of the actual surveillance footage, and
therefore sees no need to resolve the debate as to the authenticity of or the identity of the author
of the summary.
The minor, wearing a dark hoodie with the hood up, and three adults (one of whom was
in a wheelchair) entered the casino at approximately 3:48 PM. (See Burger Decl. Ex. 25
(“September 22 Footage”), at 15:48:00.) There is no indication that a security guard was present
at the entrance. At 4:03 PM, the group sat down at several adjacent gaming machines. (See id.
at 16:03:07.) It is not clear whether the minor was engaged in any gambling at that time. At
approximately 4:04 PM, Suszan Oswald, the white, female, VGM attendant assigned to Section
B on September 22, (see Burger Decl. Ex. 22), walked through the gambling area where the
minor and the other adults were seated, (see September 22 Footage at 16:04:26). At 4:07 PM,
15
Oswald returned and assisted one of the minor’s companions. (See id. at 16:07:08.) The minor
was seated at the machine next to the one where the companion being assisted by Oswald was
seated. (See id.) The minor and his companion got up and moved to converse with the two other
adults at approximately 4:11 PM. (See id. at 16:11:00.) At 4:12 PM, the minor and the adult he
had been sitting with sat down at two new gaming machines across from the other two members
of the group. (See id. at 16:12:03.) Shortly thereafter, at 4:14 PM, the minor moved across the
aisle and took the place of one of his companions who had gotten up. (See id. at 16:14:36.) It is
again unclear whether the minor was engaged in any gambling at this time. At 4:22 PM, after
milling about for a few moments, the minor changed seats again, returning to his seat across the
aisle. (See id. at 16:22:11.) At 4:23 PM, both the minor and his companion got up and spent the
next few minutes talking and watching other members of the group play. (See id. at 16:23:14.)
At 4:26 PM, the group arrived at a new set of slot machines, (see id. at 16:26:32), where,
after some other patrons got up, the minor and one of his companions sat down at two adjacent
gaming machines, (see id. at 16:27:49). The footage does not indicate that the minor was
gambling. At 4:39 PM, Tahlaya Alston, another VGM attendant, walked through the area where
the minor was seated. (See id. at 16:39:21.) The minor’s companion got up to assist the member
in the wheelchair at approximately 4:53 PM, (see id. at 16:53:53), after which the minor moved
one seat over and began playing on a handheld video game device, (see id. at 16:54:09).
Moments later, Oswald entered the area and sat down to service the gaming machine two seats
away from the minor. (See id. at 16:54:18.) There was no one seated at the gaming machine
between the minor and Oswald. A few moments later, the minor’s companion returned, and the
minor moved one seat over to make room, then sitting directly next to Oswald. (See id. at
16:54:38.) At 4:55 PM, the minor got up and crossed the aisle to assist the companion in a
16
wheelchair with his gaming machine. (See id. at 16:55:03.) Oswald completed servicing the
gaming machine and left the area at approximately 4:55 PM. (See id. at 16:55:46.) At 4:57 PM,
Oswald returned to service another gaming machine (one that the minor had been seated at
earlier) on the opposite side of the aisle where the minor was seated, (see id. at 16:57:17),
departing the area at 4:58 PM, (see id. at 16:58:54). At 5:14 PM, after helping his companion in
the wheelchair to another gaming machine, the minor appeared to insert a gambling card into the
gaming machine at the request of his companion. (See id. at 17:14:33.)
The minor and his companions thereafter moved to a new area of the casino. At 5:19
PM, the minor took his hood down, which had been up during the rest of his time in the casino.
(See id. at 17:19:10.) Between 5:26 and 5:27 PM, an unidentified housekeeper passed through
the area where the minor was standing. (See id. at 17:26:48.) No gambling from the minor was
observed in this area. Here, the video surveillance provided by Plaintiff skips approximately 30
minutes of footage. The video summary indicates that during this period, the minor was
observed touching the screen of a gaming machine, but does not indicate that any other staff
members were in the area. (See Burger Decl. Ex. 24.)
At 6:00 PM, the minor and two of his companions arrived at a new set of gaming
machines. (See September 22 Footage at 18:00:41.) The minor was no longer wearing his hood
at this point. At 6:08 PM, the minor sat down at a gaming machine next to one of his
companions. (See id. at 18:08:25.) At 6:17 PM, Plaintiff began to walk through the area, where
the minor and his two companions were seated, before turning around and leaving the area. (See
id. at 18:17:18.) A few minutes later, at 6:24 PM, Plaintiff and VGM attendant Philjo Phillip
walked through the area where the minor and his companions were seated (by this time, the
minor’s third companion had rejoined the group). (See id. at 18:24:35.) Phillip walked through
17
the same area again at around 6:32 PM. (See id. at 18:32:31.) At 6:38 PM, the minor began
assisting his companion in a wheelchair playing a gaming machine. (See id. at 18:38:28.) The
minor interacted with the gaming machine several times, and at 6:41 PM, the minor cashed out
the credits earned while playing the gaming machine. (See id. at 18:41:47.) At 6:53 PM,
Plaintiff and Phillip again walked through the area where the minor was seated. (See id. at
18:53:29.) At 7:04 PM, the minor and his companions were escorted out of the casino by
security. (See id. at 19:04:44.) Plaintiff denies ever seeing a minor on the casino floor that day.
(See Vaughn I Tr. 36; see also Pl.’s 56.1 Resp. ¶ 160.)
The record is not entirely clear on how the matter proceeded from there. Regardless of
which employee put together the video summary and forwarded it to security, Galterio suggested
that it was his belief that either the security or the surveillance team reported the incident to both
him and the New York State Gaming Commission (the “NYSGC”) either that evening or the
next morning. (See Galterio II Tr. 119–20.) On September 24, 2013, YRC received a notice of
violation from the NYSGC, describing the incident and reprimanding YRC for allowing a minor
to remain on the gambling floor in violation of the Gaming Commission Rules. (See id. at 120;
Burger Decl. Ex. 23.) The notice identified four issues: (1) there was no guard stationed at the
food court outside of the casino to prevent minors from entering; (2) the minor was allowed to
keep his hood on for an extended period time in violation of gaming rules; (3) a floor attendant
(presumably Oswald) assisted one of the minor’s companions while the minor sat right next to
her; and (4) several employees walked by the minor without asking him to remove his hood or
noting that he was a minor. (See Burger Decl. Ex. 23.) With respect to Oswald, the NYSGC
stated that “unless some compelling reason [could] be provided [they] expect[ed] this employee
to be given a final warning.” (See id.; see also Pl.’s 56.1 Resp. ¶ 162.)
18
Following receipt of the notice from the NYSGC, both Plaintiff and Oswald were
suspended pending an investigation. (See DeGiuseppe Exs. X; see also Defs.’ 56.1 ¶¶ 67–68;
Pl.’s 56.1 Resp. ¶¶ 67–68.) On October 5, 2013, Plaintiff and Oswald were terminated. (See
Shannon Decl. ¶ 10; see also Shannon Decl. Exs. 2A, 2B.) Although Galterio was not positive,
he believed that Palmieri made the decision to ultimately terminate Plaintiff, though he
acknowledged that the matter was discussed among himself, Palmieri, and Jordan-Woods. (See
Galterio I Tr. 163; see also Defs.’ 56.1 ¶ 65; Pl.’s 56.1 Resp. ¶ 65.) Notwithstanding Plaintiff’s
unfounded speculation to the contrary, there is no evidence that Munroe played any role in the
termination of Plaintiff or was in any way involved with the investigation or grievance process.
(See Munroe I Tr. 163–66.)
6. Grievance, Arbitration, and EEOC Proceedings
Local 1105 filed a grievance on behalf of both Plaintiff and Oswald challenging their
terminations. (See Shannon Decl. ¶ 10; see also Defs.’ 56.1 ¶ 69; Pl.’s 56.1 Resp. ¶ 69.) For
reasons that the Parties cannot agree on, but are not material, Plaintiff’s and Oswald’s grievances
skipped Step I of the grievance protocol and proceeded directly to Step II. (See Shannon Decl.
¶ 10; Galterio II Tr. 70–72; Czerniowski II Tr. 76; see also Defs.’ 56.1 ¶ 69; Pl.’s 56.1 Resp.
¶ 69.) On October 9, 2013, the union and management met to discuss the grievances, but both
grievances were denied at Step II. (See Shannon Decl. ¶ 10; see also Defs.’ 56.1 ¶¶ 69–70; Pl.’s
56.1 Resp. ¶¶ 69–70.) Local 1105 appealed both grievance denials to Step III, the final step of
the grievance procedure, and the parties met on November 4, 2013 to discuss the grievances.
(See Shannon Decl. ¶ 10; see also Defs.’ 56.1 ¶ 72; Pl.’s 56.1 Resp. ¶ 72.) Plaintiff’s suspension
arising from the incident with Hassan was also heard on the same day. (See Burger Decl. Ex. 26;
see also Pl.’s 56.1 Resp. ¶ 182.)
19
Following the November meeting, YRC agreed to reinstate Oswald under a “Last
Chance” settlement agreement. (See Shannon Decl. ¶ 10; see also Defs.’ 56.1 ¶ 73; Pl.’s 56.1
Resp. ¶ 73.) The purported basis for YRC’s decision to reinstate Oswald was YRC’s belief that
mitigating circumstances, such as the fact that Oswald did not have a robust disciplinary record
and only passed by the minor a couple of times, warranted a sanction lighter than termination.
(See Galterio II Tr. 127–28.) Plaintiff questions this basis, saying that the surveillance footage
does not support this evaluation of Oswald’s conduct and that the NYSGC specifically called out
Oswald’s negligence, but no one else’s. (See Pl.’s 56.1 Resp. ¶ 73.) Plaintiff also points out that
Oswald was reprimanded in February 2013 for poor customer service. (See Burger Decl. Ex. 27;
see also Pl.’s 56.1 Resp. ¶ 186.)
YRC, however, did not reinstate Plaintiff. (See Shannon Decl. ¶ 10; see also Defs.’ 56.1
¶ 74; Pl.’s 56.1 Resp. ¶ 74.) Galterio testified that the decision not to reinstate Plaintiff was
based on the fact that his “file wasn’t as clean as Sus[z]an Oswald’s,” pointing to his suspension
in July for insubordination. (See Galterio II Tr. 153.) Galterio testified that he would have
considered anything in Plaintiff’s file, including any incidents that took place more than a year
prior, but could not recall whether any such incidents were in Plaintiff’s file. (See id. at 153–
55.)9 The decision not to reinstate Plaintiff was made by Galterio, Jordan-Woods, and possibly
Michael Taylor, YRC’s General Manager. (See Galterio I. Tr. 188–89; see also Defs.’ 56.1 ¶ 75;
Pl.’s 56.1 Resp. ¶ 75.) In a letter dated November 18, 2013, Galterio informed the NYSGC of
the terminations of Plaintiff and Oswald and the reinstatement of Oswald. (See Galterio Aff. Ex.
9
Plaintiff contends that Galterio violated the Employee Handbook and the collective
bargaining agreement when he considered disciplinary actions more than 12 months prior to the
underage gambling incident, (see Pl.’s 56.1 Resp. ¶ 185 (citing DeGiuseppe Exs. F, at 28, G, at
46)), but does not suggest or point to any evidence indicating that there were any prior
disciplinary actions more than 12 months removed that could have been considered.
20
3; see also Defs.’ 56.1 ¶ 76; Pl.’s 56.1 Resp. ¶ 76.) In a letter dated December 16, 2013, Local
1105 sent Plaintiff a letter informing him that his grievance had been denied by YRC. (See
Shannon Decl. Ex. 4; see also Defs.’ 56.1 ¶ 77; Pl.’s 56.1 Resp. ¶ 77.) The letter stated,
somewhat confusingly, that YRC provided the following response to the grievance:
As discussed at our meeting, Mr. Vaughn had no interaction with a 12 year old
underage patron gambling from 3:48 to 7:03 in Section AB&F; the discipline was
warranted.
Therefore, this grievance is denied.
(Shannon Decl. Ex. 4.)
The next sequence of events is the source of some dispute and confusion, as Plaintiff filed
a charge with the U.S. Equal Employment Opportunity Commission (“EEOC”) at the same time
that, allegedly unbeknownst to him, Local 1105 was arbitrating his grievance on his behalf; the
chronology is therefore significant. Between November 6, 2013 and January 24, 2014, Plaintiff
exchanged text messages with a union representative to discuss the possibility and timing of
arbitration. (See Vaughn II Tr. 140–42; DeGiuseppe Aff. Ex. CC; see also Defs.’ 56.1 ¶ 78; Pl.’s
56.1 Resp. ¶ 78.) On February 10, 2014, Local 1105 informed YRC that it intended to proceed
to arbitration on Plaintiff’s grievance and filed a Demand for Arbitration on Plaintiff’s behalf.
(See Shannon Decl. ¶ 11; Shannon Decl. Exs. 5, 6; see also Defs.’ 56.1 ¶ 79; Pl.’s 56.1 Resp.
¶ 79.) On or about April 1, 2014, Local 1105 received a letter from Plaintiff requesting
information about the status of his grievance and arbitration. (See Shannon Decl. ¶ 12; Shannon
Decl. Ex. 7.) Although Defendants have produced a copy of a response letter drafted by Local
1105 that was allegedly sent to Plaintiff’s address in the Bronx, (see Shannon Decl. Ex. 8; see
also Shannon Decl. ¶ 12), Plaintiff claims to have never received the response, (see Vaughn Aff.
¶ 7).
21
On May 13, 2014, Plaintiff filed a Charge of Discrimination (the “Charge”) with the
EEOC, alleging that he had been falsely accused of insubordination and punished after a biased
investigation, and that he had been unlawfully terminated (and not reinstated, unlike his white
co-worker) for his involvement in the underage gambling incident. (See DeGiuseppe Aff. Ex. JJ
(“EEOC Charge”); see also Defs.’ 56.1 ¶ 80; Pl.’s 56.1 Resp. ¶ 80.) The Charge indicates that
Plaintiff believed he was the victim of race and sex discrimination, and also the victim of
retaliation, but does not include any allegations about racist comments made by Munroe or
anyone else. (See EEOC Charge.)10 The Charge was cross-filed with the New York State
Division of Human Rights, and Plaintiff averred at the end of the document that he believed he
“was discriminated against in violation of Title VII of Civil Rights Act of 1964, as amended, and
other applicable Federal, state, and local anti-discrimination statutes.” (Id.)
On July 29, 2014, the American Arbitration Association (the “AAA”), which was
overseeing the arbitration, provided written notice to YRC and Local 1105 that it was offering
October 3 and October 30, 2014 as arbitration dates. (See DeGiuseppe Aff. Ex. FF; see Defs.’
56.1 ¶ 83; Pl.’s 56.1 Resp. ¶ 83.) On August 11, 2014, YRC filed a statement with the EEOC
responding to the Charge. (See DeGiuseppe Aff. Ex. II; see also Defs.’ 56.1 ¶ 84; Pl.’s 56.1
Resp. ¶ 84.) In the statement, YRC indicated that Plaintiff’s arbitration had been tentatively
10
Plaintiff claims that this fact is “Disputed,” but instead of pointing to any language in
the Charge that contradicts this assertion, Plaintiff argues that he filed the Charge pro se, that the
EEOC intake representative improperly instructed him not to include any information about
incidents more than 300 days past, and that his rebuttal statement in the EEOC proceeding
included information about Munroe’s past behavior. (See Pl.’s 56.1 Resp. ¶ 81.) This is but one
of many places where instead of assisting the Court in determining which facts are undisputed,
Plaintiff has improperly used the 56.1 statement process to make additional argument. Nothing
in Plaintiff’s response undercuts the fact that the original Charge did not include any information
about Munroe’s racial comments. That Plaintiff believes that other circumstances either excuse
this failure or indicate that Defendants were on notice of the full scope of Plaintiff’s claims does
not make this statement of fact, which is incontrovertibly true, disputed.
22
scheduled for October 2014. (See DeGiuseppe Aff. Ex. II, at 1.) In discussing Plaintiff’s prior
discipline for insubordination, the statement incorrectly asserts that Plaintiff was disciplined for
insubordination on both July 28, 2013 and “the very next day,” July 29, when, in fact, Plaintiff
was out of work on July 29, having been sent home by Munroe the day before. (See id. at 4.) On
the same day, August 11, 2014, the AAA provided written notice to both YRC and Local 1105
that Plaintiff’s grievance would be heard on October 3, 2014. (See DeGiuseppe Aff. Ex. GG; see
also Defs.’ 56.1 ¶ 85; Pl.’s 56.1 Resp. ¶ 85.)
On August 28, 2014, Plaintiff filed his rebuttal in the EEOC proceeding. (See Burger
Decl. Ex. 30; see also Pl.’s 56.1 Resp. ¶ 188.) In his rebuttal statement, Plaintiff mentioned that
he was “subjected to name calling in prior instances in the past such as being called the N-word
by Mr. Munroe.” (Burger Decl. Ex. 30, at 2.) Plaintiff also stated that after the union did not
respond to his letter, he no longer considered Local 1105 his representative. (See id. at 4–5.)
Defendants claim that they attempted to notify Plaintiff of the arbitration date via
telephone and overnight delivery service on September 23, 2014, (see Shannon Decl. ¶ 14;
Shannon Decl. Ex. 9), but Plaintiff was no longer living at the Bronx address to which the
notification was addressed, and the landlord of the building denies ever receiving any mail
addressed to Plaintiff from YRC or Local 1105, (see Aff. of Andrea Pena Martinez ¶ 8 (Dkt. No.
94)). On September 27, 2014, Plaintiff informed the EEOC of his change in address, giving the
EEOC his new address at a shelter in Mount Vernon, New York. (See Burger Decl. Ex. 34.)
Sometime thereafter, the EEOC mailed its decision on the Charge, dated September 25, 2014,
notifying Plaintiff that it was unable to conclude that the evidence established unlawful
discrimination and informing Plaintiff of his right to sue. (See id.; see also Defs.’ 56.1 ¶ 87; Pl.’s
56.1 Resp. ¶ 87.)
23
On October 3, 2014, the arbitration was held in Plaintiff’s absence. (See Shannon Decl.
¶ 15; see also Defs.’ 56.1 ¶¶ 88–89; Pl.’s 56.1 Resp. ¶¶ 88–89.) The union and YRC formulated
a consent award at the arbitration whereby Plaintiff would be offered unconditional reinstatement
and 13 weeks of back pay. (See Shannon Decl. ¶ 15; see also Defs.’ 56.1 ¶ 90; Pl.’s 56.1 Resp.
¶ 90.) The arbitration was thereafter adjourned to allow Local 1105 sufficient time to contact
Plaintiff to discuss the terms of the consent award. (See Shannon Decl. ¶ 15; Shannon Decl. Ex.
10; see also Defs.’ 56.1 ¶ 91; Pl.’s 56.1 Resp. ¶ 91.) The letter memorializing the adjournment
indicated that the matter would be held in abeyance for up to one year. (See Shannon Decl. Ex.
10.)
Defendants aver that they made numerous attempts to contact Plaintiff to discuss the
proposed consent award, with the vice president of Local 1105 claiming that he visited Plaintiff’s
last known address in the Bronx and that he also visited a homeless shelter in Yonkers where a
coworker had indicated Plaintiff may have been staying. (See Shannon Decl. ¶ 16.) Defendants
state that they also sent a letter to Plaintiff’s old address on file with the union, but the letter was
returned as unclaimed. (See id.) Plaintiff disputes this account, claiming it is implausible that
the vice president of Local 1105 would have taken it upon himself to visit Plaintiff’s former
home in the Bronx or a homeless shelter in Yonkers. (See Vaughn Aff. ¶ 12.) Plaintiff’s former
landlord also contends she never received any visitors asking about Plaintiff’s whereabouts. (See
Aff. of Andrea Pena Martinez ¶ 7.) Plaintiff additionally points out that by December 2014,
when this Action was filed, Defendants were aware of Plaintiff’s new address, which was
included in the Complaint, and Local 1105 could have obtained Plaintiff’s address through
Defendants. (See Dkt. No. 2; Vaughn Aff. ¶¶ 13–14.) In any event, Plaintiff claims he never
24
received notice of the proposed consent award until it was mentioned during his deposition in
January of 2016. (See Vaughn Aff. ¶ 14.)
Without Plaintiff present, the consent award was entered into by YRC and Local 1105 on
May 8, 2015. (See DeGiuseppe Aff. Ex. HH.)
B. Procedural History
Plaintiff filed his Complaint pro se on December 30, 2014. (See Dkt. No. 2.) On the first
page of the form Complaint, there are instructions directing the litigant to check all claims for
discrimination that are being brought. (See id. at 1.) Plaintiff checked only the line for Title VII
of the Civil Rights Act of 1964, and did not check the line relating to New York State Human
Rights Law. (See id.) Defendants filed their Answer on May 7, 2015, (see Dkt. No. 14), and
Plaintiff filed an Amended Complaint on May 22, 2015, (see Dkt. No. 18). The Amended
Complaint also did not check the line relating to New York State Human Rights Law. (See id.)
After mediation failed, (see Dkt. No. 21), a discovery schedule was entered, (see Dkt. No. 22).
Defendants filed their Answer to the Amended Complaint on October 29, 2015. (See Dkt. No.
27.) On June 3, 2016, counsel entered an appearance on behalf of Plaintiff, (see Dkt. No. 56),
and discovery was thereafter extended and completed. After a conference before the Court, (see
Dkt. (minute entry for Nov. 7, 2016)), the Court entered a briefing schedule on Defendants’
proposed Motion for Summary Judgment, (see Mot. Scheduling Order (Dkt. No. 77)).
Defendants filed their Motion on January 13, 2017. (See Dkt. No. 79.) Plaintiff responded on
February 16, 2017, (see Dkt. Nos. 91–97), and Defendants replied on March 10, 2017, (see Dkt.
Nos. 100–01).
25
II. Discussion
A. Standard of Review
Summary judgment is appropriate 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). “It is the movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy
Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also Berry v.
Marchinkowski, 137 F. Supp. 3d 495, 521 (S.D.N.Y. 2015) (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) (alteration 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. County of Erie, 692 F.3d 22, 30 (2d
Cir. 2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
26
U.S. 574, 586–87 (1986)), “and cannot rely on the mere allegations or denials contained in the
pleadings,” Guardian Life Ins. Co. v. Gilmore, 45 F. Supp. 3d 310, 322 (S.D.N.Y. 2014)
(internal quotation marks omitted); see also 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 this stage,
“[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 omitted). 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) (internal quotation marks
omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986)).
When ruling on a motion for summary judgment, a district court should consider only
evidence that would be admissible at trial. See Nora Beverages, Inc. v. Perrier Group of Am.,
Inc., 164 F.3d 736, 746 (2d Cir. 1998). “[W]here a party relies on affidavits . . . to establish
facts, the statements ‘must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant . . . is competent to testify on the matters
stated.’” DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012) (quoting Fed. R. Civ. P. 56(c)(4));
see also Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988) (“Rule 56 requires
a motion for summary judgment to be supported with affidavits based on personal knowledge
. . . .”); Baity v. Kralik, 51 F. Supp. 3d 414, 419 (S.D.N.Y. 2014) (disregarding “statements not
27
based on [the] [p]laintiff’s personal knowledge”); Flaherty v. Filardi, No. 03-CV-2167, 2007
WL 163112, at *5 (S.D.N.Y. Jan. 24, 2007) (“The test for admissibility is whether a reasonable
trier of fact could believe the witness had personal knowledge.” (internal quotation marks
omitted)).
B. Analysis
A number of issues and arguments are presented by Defendants on this Motion. The
Court will endeavor to address those issues in the most logical sequence.
1. Hostile Work Environment Claim
Defendants first argue that Plaintiff’s claim for a hostile work environment, arising out of
Munroe’s use of racial slurs over a period of time, must be dismissed because Plaintiff did not
present the claim in the Charge to the EEOC. (See Mem. of Law in Supp. of Mot. for Summ. J.
(“Defs.’ Mem.”) 20 (Dkt. No. 86).)
To the extent Plaintiff’s claims arise under Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e, et seq., those claims require Plaintiff to exhaust his
administrative remedies before filing suit in federal court. See Fowlkes v. Ironworkers Local 40,
790 F.3d 378, 384 (2d Cir. 2015). Thus, “[b]efore bringing a Title VII suit in federal court, an
individual must first present the claims forming the basis of such a suit in a complaint to the
EEOC or the equivalent state agency.” Littlejohn v. City of New York, 795 F.3d 297, 322 (2d
Cir. 2015) (alteration and internal quotation marks omitted). This requirement, which “applies to
pro se and counseled plaintiffs alike,” Fowlkes, 790 F.3d at 384 (italics omitted), is “not a
jurisdictional requirement; rather, it is merely a precondition of suit and, accordingly, it is
subject to equitable defenses,” id.
28
Claims not raised in an EEOC charge may, however, nonetheless be heard in federal
court if those claims “are reasonably related to the claim filed with the agency.” Williams v.
N.Y.C. Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006) (internal quotation marks omitted). A claim
“is considered reasonably related if the conduct complained of would fall within the scope of the
EEOC investigation which can reasonably be expected to grow out of the charge that was made.”
Id. (internal quotation marks omitted). “The central question is whether the complaint filed with
the EEOC gave that agency adequate notice to investigate discrimination on both bases.” Id.
(internal quotation marks omitted).
Plaintiff offers three arguments for why the Charge, which makes no mention of
Munroe’s racial slurs or harassing behavior, should be deemed sufficient to exhaust Plaintiff’s
claim for a hostile work environment. Plaintiff first points out that he “specifically marked
‘race’ in the Charge, noting that he was ‘discriminated against because of [his] race,’” and that
such a notation is sufficient to put Defendants and the EEOC on notice. (The Pl.’s Mem. of Law
in Opp’n to the Defs.’ Mot. for Summ. J. (“Pl.’s Opp’n”) 21 (Dkt. No. 95).) This argument has
no basis in the law—the Second Circuit has held that an EEOC charge alleging a single act of
discrimination is not sufficient to exhaust a plaintiff’s remedies for a hostile work environment
claim. See Mathirampuzha v. Potter, 548 F.3d 70, 77 (2d Cir. 2008) (holding that a charge that
“recount[ed] nothing more than a single act of physical and verbal abuse” did not serve to
exhaust a hostile work environment claim); see also Gomez v. N.Y.C. Police Dep’t, 191 F. Supp.
3d 293, 300–01 (S.D.N.Y. 2016) (holding that a hostile work environment claim was not
exhausted where the EEOC charge alleged only that the plaintiff was threatened with suspension
and ultimately terminated because of her disability); Little v. Nat’l Broad. Co., 210 F. Supp. 2d
330, 375 (S.D.N.Y. 2002) (holding that a hostile work environment claim was not exhausted
29
where the plaintiff’s charge stated only that she had “been demoted, denied upgrades and
overtime, and [had] suffered diminished opportunities for professional growth” (internal
quotation marks omitted)); cf. Morris v. David Lerner Assocs., 680 F. Supp. 2d 430, 437
(E.D.N.Y. 2010) (“To give the EEOC adequate notice of a hostile work environment claim, the
EEOC charge must reference ‘repeated conduct or the cumulative effect of individual acts’
directed toward the plaintiff.” (quoting Mathirampuzha, 548 F.3d at 77)). While the Court
acknowledges that Plaintiff alleged two instances of discrimination in the Charge, there is no
indication or suggestion in the Charge itself that Plaintiff was subject to repeated harassment.
Plaintiff next argues that his claim has been exhausted because in his rebuttal statement to
the EEOC, he alleged that he “was also subjected to name calling in prior instances in the past
such as being called the N-word by Mr. Munroe while [he] was servicing the video gaming
machines in which [he] did not report because [he] was in fear of retaliation and losing [his]
job.” (Burger Decl. Ex. 30.) The Second Circuit has twice rejected similar attempts to amend an
EEOC charge by way of subsequent filings. In Holtz v. Rockefeller & Co., 258 F.3d 62 (2d Cir.
2001), the court held that an affidavit sent to the EEOC after the original charge “could not
enlarge the scope of the charge to encompass new unlawful employment practices or bases of
discrimination,” and could only serve to “clarify and amplify allegations made in the original
charge or allege additional acts which constitute unlawful employment practices related to or
growing out of the subject matter of the original charge.” Id. at 83 (alteration and internal
quotation marks omitted). In Littlejohn, the Second Circuit similarly held that a letter sent to the
EEOC including new allegations of a hostile work environment was insufficient to exhaust the
plaintiff’s administrative remedies, saying that “unsworn letters sent to the EEOC describing
additional claims of discrimination unrelated to the claims described in the EEOC charge cannot
30
enlarge the scope of the original charge to include new claims.” 795 F.3d at 323 (alterations and
internal quotation marks omitted).
While the allegations of a hostile work environment obliquely referenced in Plaintiff’s
rebuttal statement are not wholly unrelated to the claims in the Charge insofar as they both allege
discrimination on the basis of race, they are unrelated in the sense that they relate to a different
time period and involve unrelated acts of discrimination which have no meaningful relationship
to the discrimination described in the Charge. Although Munroe, the supervisor allegedly
responsible for Plaintiff’s suspension and termination, is also the individual alleged to have
created a hostile work environment, Plaintiff has offered no authority suggesting that the mere
fact that the new allegations relate to the same individual is sufficient to make them reasonably
related to the original charge, and a supplemental submission is not an appropriate vehicle to
expand the scope of the claim to the EEOC. See Crespo v. N.Y.C. Transit Auth., No. 01-CV-671,
2002 WL 398805, at *9 (E.D.N.Y. Jan. 7, 2002) (“[E]ven if [the plaintiff’s] letters to the
investigator had adequately detailed the alleged harassment and hostile work environment, those
letters could not have expanded the scope of that charge as a matter of law.”). Even assuming,
however, that the rebuttal statement could have served to amend Plaintiff’s charge, a single line
about the use of racial slurs, which contained no further details about the alleged harassment and
which was invoked only as evidence for the claim for an unlawful suspension, cannot be said to
have given the EEOC “adequate notice to investigate discrimination on [that] bas[is].” Williams,
458 F.3d at 70 (internal quotation marks omitted); see also Butts v. City of N.Y. Dep’t of Hous.
Preservation & Dev., 990 F.2d 1397, 1403 (2d Cir. 1993) (holding that an allegation to the
EEOC that the plaintiff “was denied promotional opportunities and consideration based on [her]
race and sex” was impermissibly vague because were the court “to permit such vague, general
31
allegations, quite incapable of inviting a meaningful EEOC response, to define the scope of the
EEOC investigation and thereby predicate subsequent claims in the federal lawsuit, such
allegations would become routine boilerplate and Title VII’s investigatory and mediation goals
would be defeated” (internal quotation marks omitted)), superseded by statute on other grounds
as recognized in Carter v. New Venture Gear, Inc., 310 F. App’x 454 (2d Cir. 2009); Zito v.
Fried, Frank, Harris, Shriver & Jacobson, LLP, 869 F. Supp. 2d 378, 392 (S.D.N.Y. 2012)
(“Courts in [the Second Circuit] have considered and refused to recognize allegations that lacked
factual specificity because the EEOC cannot be expected to investigate mere generalizations of
misconduct, nor can defendants adequately respond to them.” (internal quotation marks
omitted)); Crespo, 2002 WL 398805, at *9 (holding that “vague allegations,” such as the
employer “made [the plaintiff’s] life difficult in the way they treated [her]” and the employer
was “very uncooperative and subjected [her] to a hostile environment,” were insufficient to state
a claim of harassment or a hostile work environment).
Finally, Plaintiff argues that he limited the scope of the Charge on the basis of the advice
he received from an EEOC employee, and that he should not be penalized for the misinformation
received from the EEOC employee. (See Pl.’s Opp’n 21–22.) Specifically, Plaintiff attests that
he was told by an EEOC intake representative that he could not include any discriminatory
practices that occurred more than 300 days prior to the filing of the Charge because such claims
would be untimely. (See Vaughn Aff. ¶ 16.) It was not until he retained counsel in this case that
Plaintiff learned that certain claims may be brought outside the 300-day window where a
plaintiff alleges continuing harassment. (See id. ¶ 17.) Although Plaintiff cites cases generally
holding that “courts do not penalize litigants for [the] EEOC’s mistakes and misinformation,” see
Harris v. City of New York, 186 F.3d 243, 248 n.3 (2d Cir. 1999), none of those cases involves a
32
court excusing the failure of a plaintiff to raise a claim in his or her EEOC charge, and instead all
involve the timeliness of the claims, see id. (holding that the plaintiff’s charge was timely
submitted based on advice from an EEOC supervisor’s erroneous advice that his claims would be
deemed retroactive to the earliest filing); Ford v. Bernard Fineson Dev. Ctr., 81 F.3d 304, 312
(2d Cir. 1996) (holding that the timeliness of a plaintiff’s charge was not dependent on whether
the EEOC followed through on a worksharing agreement with a state agency); DeMatteis v.
Eastman Kodak Co., 520 F.2d 409, 410–11 (2d Cir. 1975) (holding that a claim was not untimely
to the extent the plaintiff “was misled by the [EEOC] into filing an untimely action”); Shumway
v. Hendricks, No. 93-CV-485, 1994 WL 672656, at *3 (N.D.N.Y. Nov. 28, 1994) (holding, in
line with Ford, that the timeliness of the plaintiff’s charge was not dependent on whether the
EEOC honored its obligations in a worksharing agreement). Extending this limited line of cases
to situations where the substantive adequacy of an EEOC charge is at issue would open the doors
to wide-ranging claims of misinformation that would undermine the very purpose of the
exhaustion requirement: to permit the EEOC to investigate claims for unlawful employment
practices before those claims are brought in federal court.
Moreover, Plaintiff offers no explanation for why he did not include any allegations in
the Charge of Munroe’s weekly racial insults throughout 2013, despite the fact that at least some
of those slurs and insults occurred within the 300-day window described by the EEOC
representative. (See Vaughn II Tr. 83.) There is thus no case law in support of Plaintiff’s
argument on this point, and the facts themselves belie Plaintiff’s claim. Accordingly, because
33
Plaintiff has failed to exhaust his administrative remedies with respect to his hostile work
environment claim, that claim must be dismissed.11
2. Discrimination and Retaliation Claims
Defendants argue that Plaintiff’s claim for discrimination and retaliation with respect to
his suspension and subsequent termination are legally insufficient, even construing all disputed
facts in Plaintiff’s favor. (See Defs.’ Mem. 11.) The Court will examine first the claims for
discrimination, and then those claims for retaliation.
a. Discrimination
At the summary judgment phase, Title VII discrimination claims are subject to the threepart burden-shifting test in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Dawson v. Bumble & Bumble, 398 F.3d 211, 216 (2d Cir. 2005). Under this paradigm,
a plaintiff must first establish a prima facie case of discrimination by showing that
(1) he is a member of a protected class; (2) he is competent to perform the job or is
performing his duties satisfactorily; (3) he suffered an adverse employment
decision or action; and (4) the decision or action occurred under circumstances
giving rise to an inference of discrimination based on his membership in the
protected class.
Id. If the plaintiff succeeds in making out a prima facie a case, “a presumption of discrimination
arises and the burden shifts to the defendant to proffer some legitimate, nondiscriminatory reason
for the adverse decision or action.” Id. If the defendant is able to proffer such a reason, “the
presumption of discrimination created by the prima facie case drops out of the analysis,” and the
defendant “will be entitled to summary judgment unless the plaintiff can point to evidence that
11
Plaintiff is correct, however, that the Court may consider Munroe’s racial comments to
the extent they are relevant to show that Plaintiff’s suspension and termination were racially
motivated. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (“Nor does the
[180- or 300-day time limitation] bar an employee from using . . . prior acts as background
evidence in support of a timely claim.”).
34
reasonably supports a finding of prohibited discrimination.” Id. (alteration and internal quotation
marks omitted).
Although a plaintiff may carry his burden at the third step “by the presentation of
additional evidence showing that the employer’s proffered explanation is unworthy of credence,”
the burden “may often be carried by reliance on the evidence comprising the prima facie case,
without more.” Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995) (internal
quotation marks omitted). Thus, “unless the employer has come forward with evidence of a
dispositive nondiscriminatory reason as to which there is no genuine issue and which no rational
trier of fact could reject,” the case presents “a question of fact to be resolved by the factfinder
after trial.” Id. Unlike some types of discrimination, a plaintiff alleging discrimination on the
basis of race under Title VII need only “present sufficient evidence for a reasonable jury to
conclude, by a preponderance of the evidence, that race . . . was a motivating factor for any
employment practice.” Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003) (internal quotation
marks omitted). Thus, “a plaintiff in a Title VII case need not allege ‘but-for’ causation.” Vega
v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015).
There is no apparent dispute that Plaintiff is a member of a protected class, that he is and
was generally competent to perform his job duties, and that he suffered an adverse employment
action (the suspension and subsequent termination). (See Defs.’ Mem. 12.) Defendants argue,
however, that Plaintiff has not established that his suspension or termination “occurred under
circumstances that give rise to an inference of discrimination.” (Id. (internal quotation marks
omitted).) Although Defendants focus largely on the termination, the Court construes Plaintiff’s
Amended Complaint as raising claims for discrimination with respect to both the suspension and
35
the termination. Accordingly, the Court will first examine whether Plaintiff’s claim for
discrimination arising out of his suspension may survive summary judgment.
A plaintiff may raise an inference of discrimination “by showing that the employer
subjected him to disparate treatment, that is, treated him less favorably than a similarly situated
employee outside his protected group.” Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.
2000). “To be ‘similarly situated,’ the individuals with whom [a plaintiff] attempts to compare
herself must be similarly situated in all material respects.” Shumway v. United Parcel Serv., Inc.,
118 F.3d 60, 64 (2d Cir. 1997). Accordingly, the comparator “must have engaged in conduct
similar to the plaintiff’s without such differentiating or mitigating circumstances that would
distinguish their conduct or the appropriate discipline for it.” Desir v. Board of Coop. Educ.
Servs. (BOCES) Nassau Cty., 803 F. Supp. 2d 168, 180 (E.D.N.Y. 2011) (internal quotation
marks omitted), aff’d, 469 F. App’x 66 (2d Cir. 2012); see also Ruiz v. County of Rockland, 609
F.3d 486, 493–94 (2d Cir. 2010) (“An employee is similarly situated to co-employees if they
were (1) subject to the same performance evaluation and discipline standards and (2) engaged in
comparable conduct.” (internal quotation marks omitted)). “Ordinarily, the question whether
two employees are similarly situated is a question of fact for the jury.” Mandell v. County of
Suffolk, 316 F.3d 368, 379 (2d Cir. 2003). Still, “a court can properly grant summary judgment
where it is clear that no reasonable jury could find the similarly situated prong met.” Harlen
Assocs. v. Incorporated Village of Mineola, 273 F.3d 494, 499 n.2 (2d Cir. 2001).
Plaintiff has not identified any similarly-situated comparators with respect to his
suspension. Plaintiff alludes to the fact that he was reprimanded for his behavior while Saldivia,
with whom he was speaking during the incident, was not. (See Pl.’s Opp’n 15.) But there is no
credible argument that Plaintiff and Saldivia were similarly situated. Despite Plaintiff’s
36
protestation that YRC’s policies permit a seven-minute grace period for lateness, (see id.), there
is no evidence in the record that Plaintiff’s suspension resulted solely or even primarily from his
failure to promptly report to the casino floor. Both Notices of Disciplinary Action make clear
that Plaintiff was suspended for his insubordination and for his discourteousness toward Hassan.
(See Burger Decl. Exs. 11, 15.) While Plaintiff disputes the factual basis for his suspension, that
issue is unrelated to the question of whether a coworker, who undisputedly did not engage in the
same insubordinate conduct of which Plaintiff was accused, is similarly situated to Plaintiff.
But the absence of a similarly-situated comparator does not doom Plaintiff’s
discrimination claim with respect to the suspension. “Circumstances contributing to an inference
of discrimination may include, among other things, invidious comments about people in the
protected class . . . .” Brenner v. City of N.Y. Dep’t of Educ., 132 F. Supp. 3d 407, 416
(E.D.N.Y. 2015), aff’d, 659 F. App’x 52 (2d Cir. 2016); see also Chambers v. TRM Copy Ctrs.
Corp., 43 F.3d 29, 37 (2d Cir. 1994) (“Circumstances contributing to a permissible inference of
discriminatory intent may include the employer’s . . . invidious comments about others in the
employee’s protected group . . . .”). However, such remarks “do not themselves give rise to an
inference of discrimination under Title VII unless they are accompanied by other evidence of
discrimination or a plaintiff demonstrates a ‘nexus’ between the remark and the adverse
employment action.” Brenner, 132 F. Supp. 3d at 420; see also Schreiber v. Worldco, LLC, 324
F. Supp. 2d 512, 518 (S.D.N.Y. 2004) (“Verbal comments constitute evidence of discriminatory
motivation when a plaintiff demonstrates that a nexus exists between the allegedly
discriminatory statements and a defendant’s decision to discharge the plaintiff.”). In order to
determine whether a comment is probative of an intent to discriminate, a court should consider
“(1) who made the remark”; “(2) when the remark was made in relation to the employment
37
decision at issue”; “(3) the content of the remark”; and “(4) the context in which the remark was
made, i.e., whether it was related to the decisionmaking process.” Schreiber, 324 F. Supp. 2d at
519 (italics omitted); see also Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149–50 (2d Cir. 2010)
(citing Schreiber and holding that “[t]he more a remark evinces a discriminatory state of mind,
and the closer the remark’s relation to the allegedly discriminatory behavior, the more probative
that remark will be” (internal quotation marks omitted)).
Plaintiff has offered a number of comments by Munroe that a trier of fact could conclude
evidence a discriminatory mindset:
-In 2010, Munroe told Plaintiff, “[y]ou know why I put you in the N section,
because that’s where all the Ns need to be,” an apparent reference to Section N on
the casino floor. (Vaughn II Tr. 81–82);
-In 2011, Munroe told Plaintiff to “[s]tay in your place, that’s our job,” and “you
need to stay in your place, nigger.” (Id. at 72–74; Marsh Aff. ¶¶ 4–5);
-In 2012, Munroe referred to Plaintiff and another Black co-worker as “Obama
Niggers.” (See Vaughn II Tr. 77–78; Marsh Aff. ¶ 6);
-In 2013, Munroe told Plaintiff “to be a good little black monkey and start moving
faster to your machine.” (Vaughn II Tr. 85).
In addition to these comments, Plaintiff testified that Munroe continued to use the “N-word” at
least once a week throughout 2013. (See id. at 83.)
With respect to the first consideration—who made the remark—Defendants argue that
these comments are not probative of discriminatory intent because Munroe was not involved in
the decision to suspend Plaintiff. (See Defs.’ Mem. 15.) See also Ostrowski v. Atl. Mut. Ins.
Cos., 968 F.2d 171, 182 (2d Cir. 1992) (holding that “‘stray’ remarks in the workplace by
persons who are not involved in the pertinent decisionmaking process” are not sufficient to prove
that discriminatory animus was a motivating factor in an adverse employment decision). But as
Plaintiff points out, (see Pl.’s Opp’n 13), there is a dispute of fact as to whether Munroe was
38
involved in the decision to suspend Plaintiff. While Munroe testified that Palmieri made the
decision to suspend Plaintiff, (see Munroe I Tr. 105), the email he sent to Palmieri suggests that
Munroe may have made the initial decision to suspend Plaintiff, (see Summary of Facts (“After
speaking with surveillance and Adeel I figure[d] out what had actually happened and at that
point suspended Parnell for his actions with union present.”)), and Galterio’s testimony indicated
the same, (see Galterio II Tr. 95–96). Construing these facts in the light most favorable to
Plaintiff, the Court concludes that Munroe was at least partially involved in the decision to
suspend Plaintiff, and therefore his comments are probative in that respect.
Regarding when the remark was made, there is a significant temporal gap between the
comments made in 2010–2012 and the suspension. However, Plaintiff additionally testified not
only about a specific comment made in 2013, but also stated that Munroe used the “N-word”
throughout 2013. There are therefore a number of derogatory or racist comments or phrases in
the time period near the adverse employment action. See Boakye-Yiadom v. Laria, No. 09-CV622, 2012 WL 5866186, at *8 (E.D.N.Y. Nov. 19, 2012) (holding that a remark made “no more
than two months before” the adverse employment action provided “some evidence of
discriminatory motivation”), reconsideration denied, 2013 WL 3094943 (E.D.N.Y. June 18,
2013).
There can be little doubt that the content of the remarks is discriminatory. While it is true
that none of the remarks offered by Plaintiff specifically relate to his truthfulness or his behavior
toward supervisors, the blatantly racist nature of the comments is striking and troubling.
Moreover, Munroe’s comment in 2013 that Plaintiff needed to “be a good little black monkey
and start moving faster to [his] machine,” (Vaughn II Tr. 85), speaks to some of the conduct of
which Plaintiff was accused by Hassan, namely, his failure to timely get onto the casino floor. A
39
finder of fact could conclude that Munroe’s comment evinces a discriminatory belief that
Plaintiff was more likely to arrive late to the casino floor because of his race.
Finally, the context of the remarks, which were apparently made throughout Plaintiff’s
employment, but not with respect to any disciplinary action, may not necessarily establish
discriminatory intent on the part of Munroe. Nevertheless, the other considerations are sufficient
to allow a finder of fact to draw the inference that the remarks demonstrate that Munroe was
motivated by discriminatory animus to credit Hassan’s account over Plaintiff’s, or to impose a
harsher sanction on Plaintiff because of his race.
Accordingly, because Plaintiff has made out a prima facie case of discrimination with
respect to his suspension, the burden falls on Defendants to offer a legitimate, nondiscriminatory
reason for Plaintiff’s suspension. Defendants have met that standard, positing that Plaintiff’s
suspension was a direct result not only of his failure to report to the casino floor for a significant
amount of time, but also of his insubordination toward Hassan and his repeated failure to follow
Hassan’s instructions. (See Defs.’ Mem. 17.)
Plaintiff, however, has nonetheless created a genuine issue of material fact with respect to
whether that explanation is pretextual. First, the comments allegedly made by Munroe through
2013 evince a discriminatory attitude that gives rise to a question about the sincerity of
Defendants’ proffered explanation. See Holcomb v. Iona Coll., 521 F.3d 130, 142 (2d Cir. 2008)
(finding that the plaintiff had produced sufficient evidence of pretext where the evidence
indicated that one defendant “was apparently in the habit of making racially questionable
remarks” and was “alleged to have made a strikingly racist remark to [the plaintiff] about him
and his wife”); Terry v. Ashcroft, 336 F.3d 128, 136 n.8 (2d Cir. 2003) (holding that although
40
derogatory comments are not required to show pretext, “certainly such comments might be
evidence of pretext”).
Second, there are some inconsistencies between Hassan’s account (summarized in
Munroe’s email) and the VRR. For example, Munroe wrote that Hassan had to approach
Plaintiff twice in an effort to get Plaintiff onto the casino floor, (see Summary of Facts), but the
VRR states only that “Hassan walked up to Vaughn and pointed to his wrist. They spoke for a
moment and Vaughn entered the Employee Bank at 17:17,” (July 28 VRR).12 Moreover, while
the Summary of Facts states that “Christine had to go retrieve [Plaintiff] from the vestibule to tell
him to get his keys and radio and get on the floor,” (Summary of Facts), there is no mention of
Christine in the VRR, (see July 28 VRR), and the record does not reflect where Munroe got the
information about Christine. “A plaintiff may demonstrate pretext by demonstrating
discrepancies in the employer’s story.” Hall v. Family Care Home Visiting Nurse & Home Care
Agency, LLC, 696 F. Supp. 2d 190, 200–01 (D. Conn. 2010), partial reconsideration granted,
2010 WL 1487871 (D. Conn. Apr. 12, 2010); cf. Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834,
846 (2d Cir. 2013) (“A plaintiff may prove that retaliation was a but-for cause of an adverse
employment action by demonstrating weaknesses, implausibilities, inconsistencies, or
contradictions in the employer’s proffered legitimate, nonretaliatory reasons for its action.”). A
trier of fact could find that Munroe exaggerated the details of the incident to ensure that
Plaintiff’s suspension was upheld, and that he did so, at least in part, in an effort to discriminate
against Plaintiff, as evidenced by his alleged pattern of discriminatory language. This is by no
means the only explanation for Plaintiff’s suspension, but it is a permissible one, and there are
12
It bears noting that Defendants have not produced the actual video of this incident.
41
sufficient facts from which a jury could conclude that discrimination was a motivating factor in
Plaintiff’s suspension.
Turning next to Plaintiff’s termination, Plaintiff has made out a prima facie case by
pointing to the disparate treatment of a similarly-situated comparator—Oswald. To be sure,
there are some differences between Plaintiff and Oswald, namely, Plaintiff was suspended for
insubordination two months prior to the underage gambling incident, (see Burger Decl. Ex. 15),
whereas the only discipline on record for Oswald is a verbal warning for poor customer service
in February 2013, (see Burger Decl. Ex. 27). A materially dissimilar disciplinary history may
disqualify a peer employee from being deemed similarly situated to a plaintiff. See, e.g.,
Rommage v. MTA Long Island R.R., No. 08-CV-836, 2010 WL 4038754, at *9 (E.D.N.Y. Sept.
30, 2010 (granting the defendant’s summary judgment motion after “considering that [the]
plaintiff’s disciplinary history [was] far worse than that of the comparators” and collecting
cases), aff’d, 452 F. App’x 70 (2d Cir. 2012); McKinney v. Bennett, No. 06-CV-13486, 2009 WL
2981922, at *7 (S.D.N.Y. Sept. 16, 2009) (holding that “[n]o reasonable jury could find that [the
plaintiff] [was] similarly situated to . . . the white troopers he attempts to compare himself to[]”
because the plaintiff had “not shown these people to have a comparable disciplinary history to
his own or to have any disciplinary history at all”). Plaintiff attempts to avoid this line of cases
by arguing that Munroe’s discriminatory motive in suspending Plaintiff, which tainted Plaintiff’s
disciplinary history and led to his termination, may form the basis for his claim regarding the
termination. (See Pl.’s Opp’n 14.) Plaintiff relies on the “cat’s paw” theory of liability, endorsed
by the Second Circuit in the Title VII retaliation context, whereby an employer may be held
liable for an employee’s discrimination where the “employer in effect adopts an employee’s
unlawful animus by acting negligently with respect to the information provided by the employee,
42
and thereby affords that biased employee an outsize role in its own employment decision.”
Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 275 (2d Cir. 2016). However, “an
employer who, non-negligently and in good faith, relies on a false and malign report of an
employee who acted out of unlawful animus cannot, under this ‘cat’s paw’ theory, be held
accountable for or said to have been ‘motivated’ by the employee’s animus.” Id.
It is unclear whether the “cat’s paw” theory has any application here. The doctrine is
most naturally applied to those situations where a peer employee fabricates or embellishes
allegations against the plaintiff, who is thereby negligently disciplined by the employer on the
basis of those allegations. But here, the purportedly fabricated allegations against Plaintiff are
one step removed from the decision to terminate Plaintiff—Munroe disciplined Plaintiff for his
alleged insubordination, and when Plaintiff faced disciplinary action for an unrelated incident
two months later, his prior suspension formed part of the basis for YRC’s decision not to
reinstate Plaintiff. (See Galterio II Tr. 153.) An argument could be made, however, that because
Munroe’s discriminatory suspension served as the but-for causation for Plaintiff’s ultimate
suspension and because there is at least some evidence that YRC did not adequately investigate
the underlying facts of the suspension, (see id. at 86–87 (indicating that it would have been
“appropriate” to interview Saldivia regarding Plaintiff’s dispute with Hassan)), YRC should be
held liable for Munroe’s discriminatory actions.
But the Court need not resolve the question of whether “cat’s paw” liability may attach in
these circumstances, because there is a question of fact as to whether Oswald and Plaintiff are
similarly situated. Although Plaintiff was suspended for insubordination, whereas Oswald was
disciplined only for poor customer service, this difference is not so significant as to preclude a
trier of fact from concluding that the two were similarly situated in “all material respects.”
43
While courts do grant summary judgment where a plaintiff seeks to compare himself to a
coworker with a materially different disciplinary history, the disparity between the plaintiff and
the coworker is typically far more stark than that present here. See, e.g., Varughese v. Mount
Sinai Med. Ctr., No. 12-CV-8812, 2015 WL 1499618, at *52 (S.D.N.Y. Mar. 27, 2015) (“[The
plaintiff] presents no evidence that any other resident had an extensive history of stubborn
insubordination and absenteeism without notice, i.e. a history comparable to her.”); Rommage,
2010 WL 4038754, at *9 (“[The] [p]laintiff has provided several comparators, none of whom are
sufficient to demonstrate pretext. The comparators do not have disciplinary histories nearly as
long or as severe as [the] plaintiff’s . . . .”); Saenger v. Montefiore Med. Ctr., 706 F. Supp. 2d
494, 514 (S.D.N.Y. 2010) (“Dr. Dimartino-Nardi was also materially different from [the]
[p]laintiff because she did not have an extensive disciplinary history, and had not been
repeatedly warned that additional misconduct could result in termination.”). The slight disparity
in disciplinary history here may be persuasive to a jury, but it is not so drastic as to compel
summary judgment in favor of Defendants.
Defendants point also to the fact that Oswald’s reinstatement was purportedly premised
on the existence of “mitigating circumstances,” (Defs.’ Mem. 14), specifically, that the first time
Oswald walked by the minor, he was wearing his hood up, and the second time, Oswald was
assisting a patron with her casino card, (see DeGiuseppe Aff. Ex. II, at 4). In order to rely on a
similarly-situated comparator to show circumstances giving rise to an inference of discrimination
(or to show pretext), the plaintiff must “show that similarly situated employees who went
undisciplined engaged in comparable conduct.” Graham, 230 F.3d at 40. The conduct,
however, “need not be identical.” Id. Here, the “mitigating circumstances” identified by
Defendants do not establish, as a matter of law, that Oswald and Plaintiff are not similarly
44
situated, as a trier of fact could reasonably find that these mitigating circumstances are
insufficient to justify the disparate treatment:
First, it is not clear that the fact that Oswald’s view of the minor was potentially
obstructed by the hood is a mitigating circumstance in light of the NYSGC’s letter to YRC,
which specifically instructed YRC that the “entire team need[ed] to be reminded that hoods or
other garments that obstruct view of a face are prohibited.” (Burger Decl. Ex. 23.) A trier of
fact could conclude that Defendants’ reliance on this fact, which was cited by the NYSGC as one
of several transgressions by YRC’s employees, gives rise to an inference of discrimination.
Second, Defendants’ letter to the EEOC identifying the mitigating circumstances omits
the fact that the “patron” whom Oswald was assisting during her second encounter with the
minor was actually one of the adults accompanying the minor, and that the minor was seated
next to the adult while Oswald offered assistance. (Compare DeGiuseppe Aff. Ex. II, at 3–4,
with September 22 Footage at 16:07:08.) This omission is particularly striking in light of the fact
that the NYSGC made special note of this occurrence in its letter, immediately before
recommending disciplinary action against Oswald. (See Burger Decl. Ex. 23 (“A floor attendant
assisted one of the adults that brought the minor into the facility while the minor sat next to her,
apparently looking right at the attendant.”).)
Third, in the NYSGC’s letter to YRC, the only employee singled out for disciplinary
treatment is Oswald. (See id. (advising that “unless some compelling reason [could] be
provided,” the NYSGC “expect[ed] [Oswald] to be given a final warning”).) A trier of fact
could conclude that Defendants’ decision to punish Plaintiff more severely than the employee
identified by the NYSGC supports a finding that the termination occurred under circumstances
giving rise to an inference of discrimination.
45
Finally, and most notably, the position statement submitted to the EEOC by Defendants
does not even reference the third time in which Oswald had an opportunity to observe the minor,
namely, the extended period during which Oswald sat directly next to the minor and serviced a
machine, (see September 22 Footage at 16:54:18), nor does it mention the fourth interaction
during which Oswald serviced a different machine across the aisle from the minor, (see id. at
16:57:17). These prolonged interactions, which are more sustained and more direct than any
interaction Plaintiff had with the minor, are sufficient to create a question of fact as to whether
the more favorable treatment Oswald received gives rise to an inference of discrimination.
In light of the above facts, Plaintiff has established a prima facie case. Defendants have
rebutted that case by offering a legitimate, nondiscriminatory reason for the disparity—Plaintiff’s
disciplinary history and purportedly more egregious behavior. But for many of the same reasons
discussed above, Plaintiff has raised a triable issue of fact as to whether that reasoning is a
pretext for discrimination. See Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 173 (2d Cir. 2006)
(holding that pretext “may be demonstrated either by the presentation of additional evidence
showing that the employer’s proffered explanation is unworthy of credence, or by reliance on the
evidence comprising the prima facie case, without more” (internal quotation marks omitted)).
As noted, in Defendants’ statement to the EEOC, they reference only two of the four interactions
Oswald had with the minor. (See DeGiuseppe Aff. Ex. II, at 3–4.) Moreover, Defendants
misrepresented to the EEOC that Plaintiff had been disciplined twice for insubordination, when
in fact he had been disciplined only once. (See id. at 4.) These are the types of “weaknesses,
implausibilities, inconsistencies, or contradictions” that entitle a plaintiff to the opportunity to
present to a trier of fact the question of whether a defendant’s facially legitimate explanations are
merely pretext for discrimination. Zann Kwan, 737 F.3d at 846. And although it is not sufficient
46
merely to present evidence sufficient to allow a factfinder “to disbelieve the employer,”
Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (internal quotation marks omitted),
Plaintiff has not simply offered reasons to disbelieve YRC’s stated rationale, but has also
presented evidence that a similarly situated comparator was treated more favorably than Plaintiff,
see Graham, 230 F.3d at 43 (“A showing that similarly situated employees belonging to a
different racial group received more favorable treatment can also serve as evidence that the
employer’s proffered legitimate, non-discriminatory reason for the adverse job action was a
pretext for racial discrimination.”). In such circumstances, summary judgment is not
appropriate. See, e.g., Dall v. St. Catherine of Siena Med. Ctr., 966 F. Supp. 2d 167, 188
(E.D.N.Y. 2013) (denying summary judgment where the plaintiff “presented evidence that both
he and [a coworker] violated [the] [d]efendant’s Sexual Harassment Policy and filed sexual
harassment complaints, and that [the] [d]efendant conducted an investigation, after which [the
coworker] suffered no disciplinary action, while [the] [p]laintiff was constructively discharged”);
Delia v. Donahoe, 862 F. Supp. 2d 196, 219 (E.D.N.Y. 2012) (denying summary judgment
where the plaintiff “pointed to evidence that could allow a reasonable jury to determine that [the
employer] disciplined other non-Italian similarly situated employees in a less severe manner after
they committed comparable misconduct,” and there were “questions of fact as to whether [the]
plaintiff’s suspension and ultimate termination . . . were based upon insufficient and
unsubstantiated information”).
Summary judgment is therefore denied with respect to Plaintiff’s claims for
discrimination in connection with his suspension and termination.
47
b. Retaliation
At summary judgment, retaliation claims under Title VII are subject to the same burdenshifting framework as discrimination claims, except that to make out a prima facie case of
retaliation, the plaintiff must show: “(1) participation in a protected activity; (2) that the
defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal
connection between the protected activity and the adverse employment action.” Hicks v. Baines,
593 F.3d 159, 164 (2d Cir. 2010) (internal quotation marks omitted). One additional difference
between retaliation and discrimination claims is that “a plaintiff alleging retaliation in violation
of Title VII must show that retaliation was a ‘but-for’ cause of the adverse action, and not simply
a ‘substantial’ or ‘motivating’ factor in the employer’s decision.” Zann Kwan, 737 F.3d at 845.
This standard “does not require proof that retaliation was the only cause of the employer’s
action, but only that the adverse action would not have occurred in the absence of the retaliatory
motive.” Id. at 846.
A plaintiff engages in protected activity within the meaning of Title VII when he either
“oppose[s] any practice made unlawful by Title VII,” or “ma[kes] a charge, testifie[s], assist[s],
or participate[s] in any manner in an investigation, proceeding, or hearing under Title VII.”
Littlejohn, 795 F.3d at 316 (internal quotation marks omitted). A plaintiff’s complaint qualifies
as protected activity so long as the plaintiff had “a good faith, reasonable belief that she was
opposing an employment practice made unlawful by Title VII.” Kelly v. Howard I. Shapiro &
Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (alteration and internal quotation
marks omitted).
Plaintiff identifies three instances in which he engaged in protected activity: (1) his
reporting to Palmieri of Munroe’s racial comments, (2) his reporting to Czerniowski on July 27,
48
2013 of Hassan’s failure to promptly to respond when a customer hit a jackpot, and (3) his
reporting to Munroe on July 28, 2013 of Hassan’s harassment of Plaintiff. (See Pl.’s Opp’n 12.)
The second and third of these are plainly insufficient. With respect to Hassan’s failure to
respond when a customer hit a jackpot, nothing in Title VII prevents employers or coworkers
from simply being poor at their jobs—Hassan’s failure to promptly respond when Plaintiff called
for assistance was not a violation of Title VII, nor could a reasonable employee think it to be so.
With respect to Plaintiff’s complaint to Munroe about Hassan’s rude and abusive treatment, there
is no evidence or even suggestion in the record that Hassan’s treatment of Plaintiff was
discriminatory or otherwise in violation of Title VII. The mere fact that Hassan was rude,
discourteous, or even outright abusive toward Plaintiff does not establish that Hassan was
violating Title VII. See Lizardo v. Denny’s, Inc., 270 F.3d 94, 102 (2d Cir. 2001) (“Although
mistreatment by [the] defendants is not irrelevant in assessing the strength of [the] plaintiffs’
circumstantial evidence of race-based animus, it is certainly not sufficient to establish it. We can
envision many circumstances where markedly hostile treatment . . . would raise no inference of
racial animus, but rather it would simply be yet another example of the decline of civility.”);
Desir, 803 F. Supp. 2d at 177 (“Federal employment discrimination laws do not make employers
liable for doing stupid or even wicked things; it makes them liable for discriminating.”
(alteration and internal quotation marks omitted)).
There is no question, however, that Plaintiff’s reports to Palmieri about Munroe’s racially
insensitive comments may qualify as protected activity. See Reed v. A.W. Lawrence & Co., 95
F.3d 1170, 1179–80 (2d Cir. 1996) (holding that a jury could conclude that a plaintiff had a good
faith and reasonable belief that sexist comments made by a coworker were in violation of Title
VII); Martin v. State Univ. of N.Y., 704 F. Supp. 2d 202, 228 (E.D.N.Y. 2010) (holding that a
49
plaintiff’s complaint to a supervisor about a coworker’s allegedly discriminatory remarks
constituted protected activity). The question is whether those complaints, which were made no
later than 2010, (see Vaughn II Tr. 77–80), can be said to be causally related to the suspension
Plaintiff received, allegedly at the hands of Munroe, and if so, whether Plaintiff has offered
sufficient evidence to support a conclusion that Defendants’ proffered explanation for Plaintiff’s
termination is a pretext for retaliation.
“To establish the causation prong of a prima facie case, [the] [p]laintiff must be able to
show that the retaliatory actions closely followed the protected activity o[r] that there was a
reasonably close temporal proximity between the two.” Figueroa v. Johnson, 109 F. Supp. 3d
532, 549 (E.D.N.Y. 2015) (italics and internal quotation marks omitted), aff’d, 648 F. App’x 130
(2d Cir. 2016); Laudadio v. Johanns, 677 F. Supp. 2d 590, 613 (E.D.N.Y. 2010) (“[A] plaintiff
can prove causation not only directly, by showing employer’s retaliatory animus towards the
plaintiff, but also indirectly, either by showing temporal proximity . . . , or through other
circumstantial evidence such as disparate treatment of fellow employees who engaged in similar
conduct.” (internal quotation marks omitted)); Uddin v. City of New York, 427 F. Supp. 2d 414,
426 (S.D.N.Y. 2006) (“[A] close temporal relationship between the protected activity and an
employer’s adverse actions can be sufficient to establish causation.”). “There is no bright-line
beyond which a temporal relationship is too attenuated to prove causation,” Laudadio, 677 F.
Supp. 2d at 614, but courts have held that gaps between the protected activity and the adverse
employment action as little as three months are sufficient to thwart an inference of causation,
see, e.g., Housel v. Rochester Inst. of Tech., 6 F. Supp. 3d 294, 308 (W.D.N.Y. Mar. 17, 2014)
(“[T]he lapse of two to three months between [the plaintiff’s protected activity] and her
unsatisfactory merit review . . . is . . . insufficient temporal proximity in the absence of any other
50
evidence of causation.”); Chukwueze v. NYCERS, 891 F. Supp. 2d 443, 457 (S.D.N.Y. 2012)
(holding that a lapse “somewhere between three and six months” was “insufficient, standing
alone, to establish a causal connection”); Murray v. Visiting Nurse Servs. of N.Y., 528 F. Supp.
2d 257, 275 (S.D.N.Y. 2007) (“[D]istrict courts within the Second Circuit have consistently held
that the passage of two to three months between the protected activity and the adverse
employment action does not allow for an inference of causation.”); cf. Wood v. Sophie Davis
Sch., No. 02-CV-7781, 2003 WL 21507579, at *3 (S.D.N.Y. June 30, 2003) (holding that a gap
of one month was sufficient to establish a prima facie case of retaliation).
As discussed above, neither Plaintiff’s complaints about Hassan’s failure to timely
respond to a jackpot nor his complaints about Hassan’s abusive behavior is protected activity.
With respect to the sole protected activity alleged in this case—Plaintiff’s complaints to Palmieri
about Munroe’s conduct—Plaintiff makes virtually no effort to tie this activity to his suspension
or ultimate termination, merely averring, without any case citation or further discussion, that
“[t]here are also questions of fact as to whether [Plaintiff] suffered retaliation for reporting . . .
Munroe’s racial bias to Palmieri, twice.” (Pl.’s Opp’n 12.) To the extent Plaintiff’s allegation of
retaliation is based solely on the temporal proximity between his complaints to Palmieri and the
suspension, the claim is deficient. Plaintiff testified that by mid-2010, he had given up
complaining about Munroe’s behavior, partly in response to comments made by Munroe. (See
Vaughn II Tr. 77–82.) Such a significant time gap between the protected activity and the adverse
employment action—no less than three years—precludes Plaintiff from relying solely on
temporal proximity to make out his prima facie case. See Wojcik v. Brandiss, 973 F. Supp. 2d
195, 216 (E.D.N.Y. 2013) (holding that a complaint “submitted nearly six months prior” to the
plaintiff’s suspension and termination was insufficient to “demonstrat[e] that [the] [d]efendants
51
retaliated against [the plaintiff] for complaining of discrimination”); Castro v. Local 1199, 964 F.
Supp. 719, 729 (S.D.N.Y. 1997) (holding that a lapse in one year was “insufficient to establish a
causal connection”).
But Plaintiff need not rely solely on temporal proximity (or lack thereof), as there is
evidence that Munroe told Plaintiff sometime before mid-2010 that if Plaintiff continued to
complain about Munroe using offensive and racist language, “basically,” Plaintiff could be
terminated. (See Vaughn II Tr. 79–80.) In some cases, even in the absence of temporal
proximity, such evidence of retaliatory intent may be sufficient to establish a claim for
retaliation. See Stajic v. City of New York, 214 F. Supp. 3d 230, 236 (S.D.N.Y. 2016) (holding
that even though the temporal gap between the protected activity and adverse action was at least
five and a half months, the plaintiff had “alleged direct evidence of retaliatory animus,
independent of any inferences that could or could not be plausibly drawn with respect to the
temporal proximity between the protected speech and the adverse action”). Here, however, the
evidence does not bear out Plaintiff’s claim. Plaintiff has offered no explanation of the link—or
possible link—between Munroe’s comment and the suspension. Indeed, the record contains no
evidence as to the timeframe in which Munroe’s comment was made, no evidence indicating that
Munroe made retaliatory comments or engaged in conduct that evinced a retaliatory intent at any
other time, and no other evidence from which a reasonable trier of fact could draw an inference
that Plaintiff’s suspension was related to a comment made by Munroe at an indeterminate point
in time at least three years prior to the suspension. Tellingly, Plaintiff has made little effort to
draw any connection between the comment and the suspension. (See Pl.’s Opp’n 13–20.)
Munroe may have been motivated, in part, by discriminatory animus, as set forth above,
or he may just have been misguided, ill-informed, or simply a poor supervisor. But the question
52
on this portion of the claim is whether Plaintiff has adduced evidence sufficient to allow a
reasonable trier of fact to conclude that Munroe would not have suspended Plaintiff but for
Plaintiff’s complaints to Palmieri about Munroe. See Bowen-Hooks v. City of New York, 13 F.
Supp. 3d 179, 232 (E.D.N.Y. 2014) (“Whether [the] [d]efendants’ actions were unreasonable,
unfair or even untrue, as [the] [p]laintiff alleges, without any showing of retaliatory motive, they
do not support [the] [p]laintiff’s retaliation claim.”); Joseph v. Owens & Minor Distrib., Inc., 5 F.
Supp. 3d 295, 320 (E.D.N.Y. 2014) (“Without any additional evidence that [the] [d]efendant’s
decision to terminate [the] [p]laintiff was related to the complaints that [a supervisor’s] actions of
August 30, 2010 were racially-motivated, [the] [p]laintiff cannot show that, but-for those
complaints, he would not have been terminated.”), aff’d, 594 F. App’x 29 (2d Cir. 2015). And
the evidence discussed above regarding Plaintiff’s discrimination claim is insufficient here,
because while Munroe may have been racially motivated in his treatment of Plaintiff, that does
not establish that he was also motivated by a retaliatory intent. On that point, Plaintiff’s claim is
unsupported by the evidence, even construed in the light most favorable to Plaintiff, and
therefore summary judgment in favor of Defendants is appropriate.
The analysis with respect to Plaintiff’s retaliation claim for his termination is similar.
Plaintiff has appeared to offer only a “cat’s paw” theory of liability for the retaliation claim
arising out of his termination. (See Pl.’s Opp’n 13–15.)13 But as there is no claim that Munroe’s
suspension of Plaintiff was motivated by a retaliatory intent, there can be no derivative claim that
the employer is liable for subsequent disciplinary actions that gave effect to that retaliatory
13
Plaintiff’s argument consists largely of recitations of facts without any explanation as
to their significance under existing case law. (See, e.g., Pl.’s Opp’n 13–20.) To the best of the
Court’s understanding, however, little or none of Plaintiff’s arguments actually relate to the
retaliation claim arising out of his termination.
53
animus. Cf. Vasquez, 835 F.3d at 272 n.4 (noting, in discussing cat’s paw liability, that the
parties did “not dispute on appeal whether [the plaintiff] ha[d] adequately pled [her coworker’s]
retaliatory intent”). Accordingly, both of Plaintiff’s claims for retaliation must be dismissed.
3. New York State Human Rights Law
Notwithstanding that Plaintiff’s discrimination claims survive summary judgment,
Defendants argue that his claims against the individual Defendants must be dismissed because
Title VII does not provide for individual liability. (See Defs.’ Mem. 23–24 (citing Lore v. City of
Syracuse, 670 F.3d 127, 169 (2d Cir. 2012).) Plaintiff does not dispute this basic legal point, but
argues that the Amended Complaint should be liberally construed to include claims under the
New York State Human Rights Law (“NYSHRL”), (see Pl.’s Opp’n 22–23), which does provide
for individual liability in certain circumstances, see Feingold v. New York, 366 F.3d 138, 157 (2d
Cir. 2004).
As noted, when Plaintiff filed the Amended Complaint, he checked the box for “Title VII
of the Civil Rights Act of 1964,” but did not check the box for “New York State Human Rights
Law, N.Y. Exec. Law §§ 290 to 297.” (See Am. Compl. 1.) Plaintiff did state, at one point in
his Amended Complaint, “[YRC], Robert Galterio, Michael Palmiere [sic], and Ryan Monroe
[sic] are guilty of violating laws that include not only discrimination, harassment and defamation
of character but also falsifying documents which is illegal under criminal law and also violated
these laws on Federal, state, city and local levels,” (id. at unnumbered 6), but there is no direct
reference to NYSHRL in Plaintiff’s Amended Complaint.
While Defendants are correct that Plaintiff has not formally pled a violation of NYSHRL
in his Amended Complaint, Plaintiff was pro se at the time he filed his Amended Complaint.
“[T]he submissions of a pro se litigant must be construed liberally and interpreted to raise the
54
strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474
(2d Cir. 2006) (italics and internal quotation marks omitted). This policy stems from the
understanding that there is “an obligation on the part of the court to make reasonable allowances
to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of
legal training.” Id. at 475 (italics and internal quotation marks omitted). Defendants argue that
the Court cannot “‘invent’ a cause of action that Plaintiff has not pled.” (Mem. of Law in
Further Supp. of Defs.’ Mot. for Summ. J. (“Defs.’ Reply”) 2 (Dkt. No. 100).) But the cases that
they cite do not stand for this proposition. In Chavis v. Chappius, 618 F.3d 162 (2d Cir. 2010),
the Second Circuit held that a court “cannot invent factual allegations that [a plaintiff] has not
pled.” Id. at 170 (emphasis added). And in Woods v. Empire Health Choice, Inc., 574 F.3d 92
(2d Cir. 2009), the court merely held that even construing the plaintiff’s complaint liberally, the
complaint had “manifestly fail[ed] to establish [the plaintiff’s] standing to bring th[e] action.”
Id. at 96. Neither of these cases addresses a situation where, as here, a pro se plaintiff has pled
all of the factual allegations underlying a claim, but failed to identify the statutory provision
under which the claim was brought.
More apt are those cases where courts have liberally construed a complaint as raising a
NYSHRL claim where a plaintiff has only explicitly pled a Title VII claim. See, e.g., Guardino
v. Vill. of Scarsdale Police Dep’t, 815 F. Supp. 2d 643, 646 (S.D.N.Y. 2011) (construing the
plaintiff’s complaint as including a NYSHRL claim where the plaintiff attached his
administrative charge to the complaint); Grant v. Pathmark Stores, Inc., No. 06-CV-5755, 2009
WL 2263795, at *1 (S.D.N.Y. July 29, 2009) (construing the plaintiff’s Title VII complaint as
including a NYSHRL claim); cf. Weerahandi v. Time, Inc., No. 10-CV-1269, 2010 WL 5129080,
at *3 (S.D.N.Y. Nov. 15, 2010) (giving the plaintiff leave to amend to include an unpled cause of
55
action under NYSHRL), adopted by 2010 WL 5158623 (S.D.N.Y. Dec. 16, 2010). Admittedly,
none of these cases involves a scenario where, as here, the plaintiff failed to mark a box
specifically designated for the claim now sought to be raised and no administrative complaint
was brought directly to the New York State Division of Human Rights. See Guardino, 815 F.
Supp. 2d at 646 (construing liberally where the plaintiff had filed a NYSHRL claim with the
New York State Division of Human Rights and had attached that claim to his complaint); Grant,
2009 WL 2263795, at *1 n.1 (noting that the form complaint used by the plaintiff did not provide
a box to check regarding the NYSHRL, but adding that newer forms did include such a box).
Nevertheless, Defendants have offered no reason why they would be unfairly prejudiced by the
inclusion of NYSHRL claims, and consideration of those claims would not expand the scope of
discovery or increase the amount of damages Plaintiff may receive. Accordingly, the Court
liberally construes Plaintiff’s Amended Complaint as raising claims under the NYSHRL, and the
Court therefore declines to dismiss the Action against the individual Defendants on the basis that
Title VII does not provide for individual liability.
Defendants also argue, in their reply brief, that even if Plaintiff’s Amended Complaint
could be read to include a claim under the NYSHRL, such a claim is barred because Plaintiff has
made an “election of remedies” and accordingly, under the statute, may not pursue the NYSHRL
claims in federal court. (See Defs.’ Reply 3.) New York Executive Law § 297, which governs
the procedure for filing a claim under the NYSHRL, states that “[a]ny person claiming to be
aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of
appropriate jurisdiction for damages,” “unless such person had filed a complaint hereunder or
with any local commission on human rights.” N.Y. Exec. Law § 297(9). Section 297 goes on to
state that “[a] complaint filed by the equal employment opportunity commission to comply with
56
the requirements of 42 [U.S.C.] [§] 2000e-5(c) and 42 [U.S.C.] [§] 12117(a) and 29 [U.S.C.] [§]
633(b) shall not constitute the filing of a complaint within the meaning of this subdivision.” Id.
New York courts have interpreted this provision to “preserve the complainant’s right to
commence an action in court pursuant to Executive Law § 297(9) even though he or she filed
charges or an administrative complaint with the [EEOC] and the EEOC, in turn, forwarded those
charges or that administrative complaint to the [State Division of Human Rights] for filing.”
Barr v. BJ’s Wholesale Club, Inc., 879 N.Y.S.2d 558, 559 (App. Div. 2009); see also Hirsch v.
Morgan Stanley & Co., 657 N.Y.S.2d 448, 449 (App. Div. 1997) (“The clear intent of [N.Y.
Exec. Law § 297(9)] was to preserve the complainant’s right to sue in court even though the
complaint had been filed with NYSDHR by the EEOC.” (internal quotation marks omitted)).
Thus, where “[t]here is no indication that the plaintiff filed charges or an administrative
complaint directly with the [State Division of Human Rights] and there is no indication that the
[Sate Division of Human Rights] ever investigated the charges referred to it by the EEOC or
opened a file on behalf of the plaintiff,” a charge of discrimination filed with the EEOC does not
amount to “an administrative remedy within the meaning of [N.Y. Exec. Law § 297(9)].” Barr,
879 N.Y.S.2d at 559.
Here, there is no dispute that when Plaintiff filed the Charge, on the line labeled “State or
local Agency, if any,” he (or the EEOC intake representative) wrote “New York State Division
Of Human Rights.” (EEOC Charge.) But aside from Plaintiff’s apparent admission that the
EEOC charge was “cross-filed” with the New York State Division of Human Rights, (see Pl.’s
Opp’n 22; see also EEOC Charge), the record is entirely silent on what effect, if any, this
notation has. Neither Party has explained whether the charge was actually forwarded to the New
York State Division of Human Rights, whether the division “ever investigated the charges
57
referred to it by the EEOC or opened a file on behalf of . . . [P]laintiff,” Barr, 879 N.Y.S.2d at
559, or whether the division was ever even aware that Plaintiff filed the Charge. The Court thus
sees nothing in the record that would compel the conclusion that Plaintiff’s claim is barred by the
election of remedies, as it is unclear whether any state remedy was pursued, and certainly unclear
as to whether any action was ever taken by the state agency.
Because the NYSHRL claims were properly pled and are properly before this Court,
dismissal of the claims against the individual Defendants is not appropriate on that basis. To the
extent Defendants’ papers can be construed as raising an argument as to the merits of Plaintiff’s
NYSHRL claims, it is well settled that except for the provisions relating to individual liability,
“claims brought under New York State’s Human Rights Law are analytically identical to claims
brought under Title VII.” Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 107 n.10
(2d Cir. 2011) (internal quotation marks omitted). Accordingly, Plaintiff’s NYSHRL claims for
retaliation are dismissed, but his NYSHRL claims for discrimination are not.
4. Effect of Consent Award
Defendants’ final argument is that Plaintiff’s damages should be limited by virtue of the
consent award reached between YRC and Local 1105 during arbitration. (See Defs.’ Mem. 24–
25.) Plaintiff argues that he never received notice of the consent award, notwithstanding that he
provided an address in connection with this litigation, until his deposition in January 2016, and
thus should not be limited by its offer. (See Pl.’s Opp’n 24.)
In a wrongful termination case where the employee has prevailed in establishing the
liability of the employer, the “employee is generally entitled to back pay from the date of his
wrongful termination to the date the discrimination is rectified.” Clarke v. Frank, 960 F.2d
1146, 1151 (2d Cir. 1992). “However, back pay will no longer accrue if the employer makes an
58
unconditional offer to reinstate the employee, and the employee rejects the offer.” Id. In such
circumstances, “the employer’s liability for back pay is tolled on the date the employee rejects
the offer.” Id. Moreover, such an unconditional offer “forecloses any claim for future front
pay.” Lightfoot v. Union Carbide Corp., 110 F.3d 898, 908 (2d Cir. 1997).
To the extent this issue is even appropriate for consideration at this stage in the litigation,
where liability has not yet been determined, “[w]hether the employer made an unconditional
offer of reinstatement, and whether the employee rejected that offer, are questions of fact.”
Clarke, 960 F.2d at 1151. Here, given that the record is unclear as to whether Defendants ever
actually communicated the offer of employment to Plaintiff, and also as to whether Plaintiff ever
rejected that offer, or even had an opportunity to reject it, summary judgment is inappropriate.
Defendants will be free to argue for mitigation if and when damages are set by a fact finder, but
there is nothing in the record that compels the conclusion, at this stage, that Plaintiff’s damages
are limited by the consent award obtained during arbitration.
59
III. Conclusion
The Motion is granted in part and denied in part. Defendants' Motion is granted with
respect to Plaintiff's Title VII and NYSHRL claims for hostile work environment and retaliation,
but denied with respect to Plaintiff's Title VII and NYSHRL claims for discrimination.
Defendants' Motion is denied with respect to its effort to limit damages based on the consent
award, without prejudice to raise that argument if and when damages are determined by a fact
finder. The Court will hold a conference on July 28, 2017 at 2:30 PM. The Clerk of Court is
respectfully requested to terminate the pending Motion. (Dkt. No. 79.)
SO ORDERED.
DATED:
July
1~, 2017
Whi~lains, New York
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