Zamora v. Open Door Family Medical Center, Inc. et al
Filing
60
OPINION & ORDER re: 44 MOTION for Summary Judgment filed by Open Door Family Medical Center, Inc., Dosoon Min. For the foregoing reasons, Defendants' motion is DENIED. The Clerk of the Court is respectfully requested to terminate the motion at ECF No. 44. The parties are directed to appear before this honorable Court on October 12, 2018 at 11:00 a.m. for a pretrial conference. (Signed by Judge Nelson Stephen Roman on 9/28/2018) (mro)
Sl>C SDNY
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
JOHNATHAN ZAMORA,
Plaintiffs,
-against-
1,
.lOCUMENT
1·
i
IFC:TRONICALLY FILEll 1
,
th·#:
-----~~--
\. r FIIED:
q/1Jo/t½
16-CV-00353 (NSR)
OPINION & ORDER
OPEN DOOR FAMILY MEDICAL CENTER,
INC. and DOSOON MIN,
Defendants.
---------------------------------------------------------------X
NELSON S. ROMAN, United States District Judge:
Plaintiff Johnathan Zamora brings this action against his former employer, Open Door
Family Medical Center, Inc. ("Open Door"), and his former supervisor, Dosoon Min, alleging
violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.
and the New York State Human Rights Law ("NYSHRL"), New York Executive Law § 290, et
seq. ("Complaint," ECF No. 1.)
Presently before the Court is Defendants' motion for summary judgment on each of
Plaintiffs' claims. (Defs.' Mot. for Summ. J., ECF No. 44.) For the reasons that follow,
Defendants' motion is DENIED.
BACKGROUND
The following facts are derived from the parties' respective Local Rule 56.1 statements,
pleadings, and a review of the record. 1
Plaintiff was hired to work as a nutritionist in the WIC Department at Defendant Open
Door Family Medical Center, Inc. ("Open Door") on August 12, 2006. (Pl's Resp. to Defs' Rule
1
Where only one party's 56.1 Statement is cited, the factual statement is either undisputed or no admissible
evidence has been offered to refute that fact.
56.1 Statement of Facts ("Pl.'s 56.1") ~ 9, ECF No. 56.) For the duration of Plaintiffs
employment with Defendant Open Door, he was the only male employee in the WIC department.
(Comp!.
~
8, ECF No. l); (Def. Open Door Answer~ 8, ECF No. 14); (Def. Min Answer~ 8,
ECF No. 19.) Plaintiff reported directly to Defendant Min during his employment. (Pl.'s 56.1
~
10.)
On February
1. 2007, Defendant Min provided Plaintiff with a "Competency Assessment
for WIC Nutritionists" and indicated that Plaintiff was proficient in each skillset on the form.
(Pl.'s 56.1
~
18.) On March 26, 2007, Plaintiff received Defendant Min's appraisal of his
perfo1mance which included a note that Plaintiff"has to improve his attendance" and "[a]fter a
few warnings, he is improving very much in this area."2 (Defs' 56.1 ~ 20); (Deel. of Lauren
Hanson in Supp. ofDefs.' Mot. for Summ. J. ("Hanson Deel") Ex. E (Pl. Dep. Tr. 52:23-25,
53: 13-25), Ex. M, ECF No. 45).) During the first year of his employment, Plaintiff complained
to Director of Human Resources Nancy Rodriguez because he believed Defendant Min was
2
Plaintiff argues that Defendant Open Door's performance appraisals are inadmissible hearsay lacking a foundation
in "testimony from a knowledgeable person as to why a particular performance evaluation was given." (Pl. 's 56.1 11
20.) However, Open Door perfonnance appraisals fall within the business records exception to hearsay, which
states that records ofa regularly conducted activity are not excluded as hearsay if(!) the record was made near in
time by someone with knowledge, (2) the record was kept in the course of a regularly conducted business activity,
(3) the making of the record was a regular practice, (4) the aforementioned conditions are shown by testimony of the
custodian or another qualified witness, or by certification, and (5) the opponent does not show that the source of the
information or the method or circumstances of preparation indicate lack of trustworthiness. Fed. R. Evid. 803(6). In
her deposition, Nancy Rodriguez, Director of Human Resources and responsible for making sure performance
appraisals were completed, stated that department heads, which includes Defendant Min, were required to conduct
performance appraisals of their employees in approximately February or March to review their performance for the
previous year; until 2013, these reviews occurred every three years and after 2013, they occurred annually and
included new points ratings to recognize accomplishment and flag "needs improvement." (Hanson Deel. Ex. A
(Rodriguez Dep. Tr. 84:6-85:22)); (Compl.1118.) Defendant Min, as the head of Plaintiff's department, created his
performance appraisal, which was kept in the course of regularly conducted business and part of regular, companywide practice. (Hanson Deel. Ex A. (Rodriguez Dep. Tr. 84: 15-25, 85:1-22), Ex. M); (Compl.116.) Beyond stating
that the record contains disputed fact, Plaintiff does not show that the source of the information or the method or
circumstances of preparation of the record indicate lack of trustworthiness. (Pl. 's 56.11120.) Therefore, the
performance appraisal is admissible.
2
discriminating against him based on his gender. (Pl. 's 56.1
~~
22-23.) Plaintiff infonned Ms.
Rodriguez that Defendant Min told him about "a relative of hers in Korea who wanted a son and
had his wife abort nine pregnancies because they were girls, and the lesson was he obtained his
goal .... [I]t was a story told to [Plaintiff about] behavior [he] should emulate in achieving his
goals." (Id.
~
24.) Ms. Rodriguez concluded that Defendant Min did not engage in gender
discrimination. (Id.
~
25.)
Plaintiff resigned from Defendant Open Door on Febrnary 29, 2008 to accept a position
with another company and, based on Defendant Min's advice, wrote a complementary
resignation letter in order to leave Defendant Open Door on good terms. (Id.
~
~~
27-28); (Pl. Aff.
8, ECF No. 50.) Plaintiff returned to his previous position as a nutritionist at Defendant Open
Door in June 2008 after being interviewed by Defendant Min. (Pl.'s 56.1
~
29-32.) Defendant
Min promoted Plaintiff to Assistant Director, a newly created position, in January 2010. (Id.~
31.) Gina DeVito, another WIC nutritionist, had also expressed interest in the Assistant Director
position. (Defs.' 56.1
~
34); (Hanson Deel. Ex. E (Pl. Dep. Tr. 90:6--14).) In a performance
appraisal, dated May 20, 2010, Defendant Min again noted that Plaintiff needed "to improve on
his absenteeism without advance notification."3 (Defs.' 56.1 ~ 36.) Plaintiff states that
repeatedly during his employment, Defendant Min told him that he should "be a man and think
about [his] family and children."4 (Hanson Deel. Ex. E (Pl. Dep. 121:20-25, 122:1-8)); (Defs.'
3
See discussion of the business records hearsay exception and Ms .Rodriguez's testimony, surpa n.2. Defendant
Min, as the head of Plaintiffs department, created his perfommnce appraisal, which was kept in the course of
regularly conducted business and part of regular, company-wide practice. (Hanson Deel. Ex. A (Rodriguez Dep. Tr.
84: 15-85:22), Ex. Q); (Comp!. ,r 6.) Beyond stating that the record contains disputed fact, Plaintiff does not show
that the source of the information or the method or circumstances of preparation of the record indicate lack of
trustworthiness. (Pl. 's 56.1 ,r 36.) Therefore, the performance appraisal is admissible.
4
Defendant Min denies making this statement. (Hanson Deel. Ex. C (Min Dep. Tr. 204:23-25, 205:1--o).)
3
56.1
,r 45.)
On November 18, 2013, Defendants removed Plaintiff from the Assistant Director
position and was assigned to the role of a WIC nutritionist, responsible for coordinating outreach
which included the"[a]dditional responsibility of performing outreach functions and setting up
outreach events." (Defs.' 56.1
12)); (Pl.'s 56.1
,r,r 51-52.)
,r,r 55, 57); (Hanson Deel. Ex. E (PL Dep. Tr. 138:9-25, 139:1-
His salary was not reduced. (Pl.'s 56.1
,r 56.)
Beginning in 2013, Defendant Open Door modified its perfo1mance appraisal process
and, if an employee received an overall performance rating of "needs improvement," they were
required to successfully complete a performance improvement plan ("PIP"). (Id
,r,r 59, 61.)
Under this new system, supervisors recommended an overall performance rating for each of their
direct reports which was subject to approval by the next level management, with additional
feedback from Human Resources. (Id.
,r 64.)
Defendant Min and Anita Wilenkin, Defendant
Open Door's Chief Operating Officer, discussed Plaintiff's performance appraisal for 2013 to
determine whether Plaintiff should receive a raise, and, as of May 2, 2014, Plaintiff was not
scheduled to receive a raise because, according to Defendants, his 2013 perf01mance appraisal
was negative; 5 but Plaintiff was not provided with this information until after May 14, 2014.
(Hanson Deel. Ex. AA); (Deel. of Peter Schuyler in Opp'n to Defs.' Mot. for Summ. J.
("Schuyler Deel.") Ex. 3 (Wilenkin Dep. Tr. 97:16-24), ECF No. 55); (Pl. 's 56.1
,r 127.)
On May 14, 2014, Plaintiff again complained to Ms. Rodriguez about Defendant Min,
'See discussion of the business records hearsay exception, surpa n.2. Defendants imply that Ms. Rodriguez, .who
was, until July 28, 2014, responsible for overseeing the whole Human Resources department, authenticated the
email and attachment from Anita Wilenkin, sent to Human Resources employees. (Rodriguez Aff. ,r 9, ECF No. 47);
(Schuyler Deel. Ex. I (Rodriguez Dep. Tr. 7: 19)); (Shelton Dep. Tr. 9:3-7.) The document is properly authenticated
by Ms. Wilenkin, who testified that the regular procedure for conducting performance appraisals required
supervisors, including Defendant Min as Plaintiff's supervisor, to make the rating decision and discuss it with Ms.
Wilenkin so that she could properly determine salary adjustments. (Schuyler Deel. Ex. 3 (Wilenkin Dep. Tr. 74:2325, 75:1-25).)_ The email attachment contains those salary adjustments.
4
and Plaintiff states that he also complained about discrimination directly to Defendant Min and
her supervisor. (Defs.' 56.1
,r 66); (Pl. Aff. ,r 14.)
Plaintiff informed Ms. Rodriquez that
Defendant Min was discriminating against him based on his gender. (Defs.' 56.1
,r 14.)
,r 67); (Pl. Aff.
Plaintiff reported that, in early 2014 after Plaintiff returned from vacation, Defendant Min
told him that "men shouldn't take vacations, they should let women stay home and raise the
children," and Defendant Min denies making this statement. (Pl.'s 56.1
,r 68); (Defs.' 56.1 ,r 69);
(Hanson Deel. Ex. C (Min Dep. Tr. 207: 19-24).) Plaintiff also informed Ms. Rodriguez that
Defendant Min made a disparaging comment about his weight gain in early 2014 and that he was
written up in April 2014 for taking approved time off. (Pl.'s 56.1
,r,r 70-71.)
Additionally,
Plaintiff reported that Defendant Min told him she was going to assign his outreach coordinator
role to someone "who was more capable because Plaintiff did not understand what the WIC
Department was trying to accomplish with outreach." (Id.
,r 72.)
Plaintiffs April 2014 write-up
for taking time off was removed from Plaintiffs personnel file. (Id
,r 75.)
Parties dispute
whether Plaintiff was ever informed that Ms. Rodriguez concluded that Plaintiffs gender
discrimination complaint was unfounded. (Defs' 56.1
,r 76); (PJ's 56.1 ,r 76.)
Defendant Min and Ms. Wilenkin met with Plaintiff on June 2, 2014 to discuss his 2013
pe1formance appraisal, which rated his overall performance as "needs improvement." (Defs.'
56.1
,r 79); (Hanson Deel. Ex. Y.)
Months later, on August 25, Defendant Min provided Plaintiff
with a copy of his 90 day PIP, dated June 3, 2014. (PJ's 56.1
,r 83); (Defs.' 56.1 ,r 83); (Hanson
Deel. Ex. FF.) The PIP provided that, "effective immediately," Plaintiff was "expected to make
regular progress on addressing performance issues" and that "if there is no significant
improvement ... [Plaintiffs] employment may be terminated prior to 90 days." It also described
Plaintiffs absences and outreach performance during the PIP period. (Pl.'s 56.1
5
,r 84); (Defs.'
56.1 ~~ 86--87); (Hanson Deel. Ex. FF.) In Plaintiffs reply to the PIP, he explained that some of
his absences were supported by medical documentation and that, during the summer months,
there are fewer outreach opportunities. (Pl.'s 56.1 ~ 89.) Defendants state that Plaintiff's PIP did
not go into effect until August 25, 2014, but Plaintiff notes that the PIP documents Plaintiff's
absenteeism and outreach performance starting June 3, 2014, the date listed at the top of the PIP.
(Pl's 56.1
~
90); (Defs.' 56.1
~
90); (Hanson Deel. Ex. FF.) On September 22, 2014, Defendant
Open Door informed Plaintiff that his PIP was being extended by 60 days, but Plaintiff notes that
he did not receive his original PIP until less than one week before it expired, on September 1,
2014. (Pl.'s 56.1
~
91); (Defs.' 56.1
~
91); (Hanson Deel. Ex. FF.) This new PIP, or PIP
extension, required Plaintiff to enroll fifty new outreach participants into the WIC program, a
goal Plaintiff states is unattainable. (Pl.'s 56.1
~
94); (Defs.' 56.1
~~
94.) Plaintiff objected to
the PIP extension by submitting in writing that he had satisfied all of the criteria for the first PIP
and that the "fact that [Plaintiff] was placed on a 90 day improvement plan mere days after
reporting to Human Resources a claim of discrimination within [his] department only raises
questions and arouses suspicion of the program director's motives and senior management
involvement in the mishandling of the situation." (Pl. 's 56.1
~~
98-99.)
As of November 17, 2014, Defendant states that Plaintiff had not held a new outreach
event and had not demonstrated that he had enrolled fifty new WIC participants through
outreach, but Plaintiff states that he held outreach events in October 2014. (Defs.' 56.1
(PJ's 56.1
~
~
107);
107); (Schuyler Deel. Ex. 14.) Defendant Open Door terminated Plaintiff on
November 19, 2014 for his "continued inability to meet his outreach goals following his 90-day
PIP and 60-day extension." (Defs.' 56.1 ~ 108); (Pl. 's 56.1 ~ 108.) Defendant Min provided the
Human Resources Department with the information for the advertisement for Plaintiff's former
6
position, which included a goal to emoll approximately eighty seven new participants into the
WIC program during 2015. (Pl.'s 56.1
,r ll5.)
On or about December 17, 2014, Plaintiff filed a discrimination charge with the EEOC,
alleging sex discrimination and retaliation, and the EEOC issued a Notice of Right to Sue on
October 19, 2015. (Id.
,r,r 120-21.)
Plaintiff commenced this action on January 15, 2016. (Id.
,r
122.) Defendant Open Door filed an answer on March 29, 2016, and Defendant Min filed an
answer on April 11, 2016. After discovery was completed, Defendants Open Door and Min
together moved for summary judgment on all of Plaintiffs claims on October 10, 2017.
STANDARD ON MOTION FOR SUMMARY JUDGMENT
Summaty judgment is appropriate if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P.
56(a). A genuine dispute of material fact exists when "the evidence is such that a reasonable jury
could return a verdict for the nonmoving patty." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986); accord Benn v. Kissane, 510 F. App'x 34, 36 (2d Cir. 2013).
A comt should grant summary judgment when a patty who bears the burden of proof at
trial "fails to make a showing sufficient to establish the existence of an element essential to that
party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "In such a situation, there can
be no genuine issue as to any material fact, since a complete failure of proof concerning an
essential element of the nonmoving party's case necessarily renders all other facts immaterial."
Id. at 323 (internal quotation marks omitted).
In deciding a motion for summary judgment, the Court must "constru[e] the evidence in
the light most favorable to the non-moving patty and draw[] all reasonable inferences in its
favor." Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (internal
7
quotation marks omitted). However, the nonmoving party "may not rely on conclusory
allegations or unsubstantiated speculation." FDIC v. Great Am. Ins. Co., 607 F.3d 288,292 (2d
Cir. 2010) (internal citation and quotation marks omitted). Fmther, "[s]tatements that are devoid
of any specifics, but replete with conclusions, are insufficient to defeat a properly supported
motion for summaiy judgment." Bickerstajfv. Vassar Coll., 196 F.3d 435,452 (2d Cir. 1999).
DISCUSSION
Defendants argue that they are entitled to summaiy judgment for Plaintiff's sex
discrimination and retaliation claims under Title VII and New York Executive Law § 290
("NYHRL"). The Second Circuit has held that "claims brought under New York State's Human
Rights Law are analytically identical to claims brought under Title VII." Torres v. Pisano, 116
F.3d 625,629 n.1 (2d Cir. 1997); see Rojas v. Roman Catholic Diocese ofRochester, 660 F.3d
98, I 07 n.10 (2d Cir. 2011 ); Salomon v. Our Lady of Victory Hosp., 514 F3d 217, 226 n.9 (2d
Cir. 2008). "One notable exception to this rule is that, while an individual defendant with
supervisory control may not be held personally liable under Title VII, an individual defendant
may be held liable under the aiding and abetting provision of the NYSHRL if he 'actually
participates in the conduct giving rise to the discrimination claim.'" Rojas, 660 F.3d at 107 n.10.
Accordingly, the Comt will address Plaintiff's Title VII and NYHRL claims together,
except for Plaintiff's NYHRL claim against Defendant Min in her individual capacity.
I.
. Sex Discrimination
Defendants argue that Plaintiff cannot establish a prima facie case of sex discrimination.
(Defs.' Mot for Sum. J. pp. 4---19.)
8
Where there is "no direct or overt evidence of discriminatory conduct, we apply the
three-pait burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 80204 (1973) to determine whether summary judgement is appropriate." Weinstockv. Columbia
Univ., 224 F.3d 33, 42 (2d Cir. 2000). Under McDonnell Douglas, a plaintiff must establish (1)
she is a member of a protected class; (2) she is qualified for her position; (3) she was subjected to
an adverse employment action; and (4) the circumstances give rise to an interference of
discrimination. Weinstock, 224 F .3d at 42. "[T]he level of proof a plaintiff is required to present
in order to establish aprimafacie case of discrimination is low." De la Cruz v. NY.C. Human
Res. Admin. Dep't ofSoc. Servs., 82 F.3d 16, 20 (2d Cir. 1996). If the plaintiff establishes a
prima facie case, the defendant may rebut the case by establishing a legitimate, nondiscriminatory reason for the adverse employment action and, if the defendant establishes a
legitimate reason, the presumption of discrimination from the establishment of a prima facie case
drops out. Weinstock, 224 F.3d at 42. For the claim to continue, the plaintiff must come forward
with evidence that the defendant's proffered non-discriminatory reason is mere pretext for
discrimination. "The plaintiff must produce not simply 'some' evidence, but 'sufficient evidence
to support a rational finding that the legitimate, non-discriminatory reasons proffered by the
[defendant] were false, and that more likely than not [discrimination] was the real reason for the
[employment action]." Id. (quoting Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714
(2d Cir. 1996) (internal quotation marks omitted)).
In the present action, Plaintiff has proffered sufficient admissible evidence from which a
reasonable trier of fact could find that Defendants engaged in gender discrimination. Plaintiff
establishes, and Defendants do not dispute, that he is a member of a protected class, was
qualified for his position, and that his te1mination qualified as an adverse employment action.
9
(Pl.'s 56.1
~
18); (Defs.' Mot. for Summ. J. p. 5.)
Additionally, Plaintiff presents sufficient evidence to establish that there is a genuine
issue of material fact that his termination occurred under circumstances giving rise to the
inference of sex discrimination. Plaintiff testified that he was treated differently than his female
colleagues for taking his allotted days off of work, endured sexist comments, and was subjected
to improper PIP procedures which ultimately lead to his termination. (Hanson Deel. ~ Ex. E (Pl.
Dep. Tr. 121:20---25, 122:1-8, 158:2-7, 207: 6-22); (Pl. Aff.
~~
14, 25.) In supp01t of his
contention, Plaintiff asserts in a sworn statement that Defendant Min allowed a woman, a
nutritionist, in the WIC department to adjust her schedule so that she could attend graduate
classes but denied Plaintiffs request that he be allowed to modify his schedule so that he could
take night classes. 6 (Pl's 56.1 ~~ 138-39) (Pl. Aff. ~ 12.) Defendant Min confomed this in her
deposition. (Schuyler Deel. Ex. 4 (Min. Dep. Tr. 206:1-9, 18-24).) Plaintiff testifies that
Defendant Min made several sexist comments to him and cites specific comments from the end
of2012 and beginning of 2014, but Defendant Min denied that she made these statements in her
sworn testimony. 7 (Hanson Deel. Ex. C (Min Dep. Tr. 204:23-25, 207:19-24), Ex. E (Pl. Dep.
121 :20---25, 122:1-8, 158:2-7).) This alleged discrimination came to a head when Defendants
misapplied their PIP procedure and set an umeasonable goal for Plaintiff, a male, that no other
nutritionists, who are all female, were expected to meet, resulting in his termination. (See infra.)
A reasonable fact finder could find that Plaintiff met the low standard of proof for a prima facie
discrimination case. See De la Cruz, 82 F.3d at 20.
6
Plaintiff does not specify a time for this incident. (See Pl. Aff.
7
,r 12.)
Defendant Min allegedly told Plaintiff to "be a man" around November 2012 (Defs.' 56.1111[ 41-45) and that men
should not take vacations in early 2014. (Pl. 's 56.1 ,r 68); (Defs.' 56.1 ,r 69); (Hanson Deel. Ex. C (Min Dep. Tr.
207:19-24).)
10
Though Defendant offers a legitimate, nondiscriminatory reason for Plaintiffs
termination-his failure to meet the standards set in his extended PIP (Defs.' 56.1
,r 108), there is
a question of fact whether the basis for Plaintiff's te1mination was a pretext.
However, Plaintiff presents evidence that a reasonable factfinder could determine shows
that the Defendants' proffered nondiscriminatory reason is mere pretext. Plaintiff testified that
he was subjected to an unfair PIP proceeding as a pretext to te1minate him for gender
discrimination. (Pl. Aff.
,r,r 16-20, 24-25.)
Plaintiff was presented with his first, ninety day PIP
on August 25, 2014, even though that PIP was created on June 3, 2014 and was set to expire on
September 1, 2014. (Hanson Deel. Ex. FF); (Zamora Aff.
,r 17.)
Defendant Min testified that
she provided Plaintiff with a sixty day extension on his PIP on September 22, 2014, but Plaintiff
presents evidence that this extension was actually a second PIP, imposed twenty-one days after
the first PIP had expired, and that the goal he was required to meet in this PIP was unattainable.
(Schuyler Deel. Ex. 4 (Min Dep. Tr. 192:14-16)); (Hanson Deel. Ex. FF); (Pl. Aff.
,r,r 20-22.)
This PIP required Plaintiff to enroll fifty new WIC program pmticipants in sixty days (or twentyfive per month), and Defendant Min and Ms. Wilenkin each admitted that they could not identify
any instances where Open Door received twenty-five new participants in one month through
outreach programs. (Schuyler Deel. Ex. 4 (Min Dep. Tr. 189: 12-15), Ex. 3 (Wilenkin Dep. Tr.
153:21-25).) While Defendants assert that Plaintiff held no outreach events during this second
PIP period, indicative of underperformance, Plaintiff presented evidence that he held events in
October, including a schedule of October outreach events. (Defs.' 56.1
17, Ex. 14); (Pl. Aff.
,r 21.)
,r 107); (Schuyler Deel ,r
Moreover, Plaintiff was terminated on November 19, 2014, before
the end date of his second PIP which was scheduled to end sixty days from September 22, 2014.
(Defs.' 56.1
,r,r 91, 108); (Hanson Deel. Ex. GG.)
11
Before Plaintiff was terminated, Defendant
Open Door posted an advertisement for Plaintiffs position on October 23, 2014, well ahead of
the expiration of his second PIP. (Schuyler Deel. Ex. 4 (Shelton Dep. Tr. 40:3-20), Ex. 19).)
This advertisement stated that the new employee would be responsible for emailing eighty-seven
new WIC participants over twelve months, a significantly more generous goal than Plaintiff was
required to meet in his second PIP. (Schuyler Deel. Ex. 19.) A reasonable factfinder could
review this evidence and determine that Defendants' stated reason for tenninating Plaintiff,
Plaintiffs alleged failure to meet the goal in the second PIP, was mere pretext for his
termination, thus raising a genuine and material issue of fact.
Accordingly, Defendants' motion for summary judgment on Plaintiffs NYSHRL and
Title VII sex discrimination claims must be denied.
II.
Retaliation
Defendants argue that Plaintiff cannot establish a prirna facie case for retaliation or
provide evidence that he was te1minated "but for" his complaint to Human Resources on May
14, 2014.
To state a prima facie case for retaliation, a Plaintiff must allege that "(l) she was
engaged in protected activity; (2) the employer was aware of that activity; (3) the employee
suffered a materially adverse action; and (4) there was a causal connection between the protected
activity and that adverse action." Lore v. City a/Syracuse, 670 F.3d 127, 157 (2d Cir. 2012)
(citing Kessler v. Westchester Dep't a/Soc. Serv., 461 F.3d 199, 205-06, 207-10 (2d Cir. 2006)).
The governing standard is an objective one: "[A] plaintiff must show that a reasonable employee
would have found the challenged action materially adverse, 'which ... means it well might have
dissuaded a reasonable worker from making or supporting a charge of discrimination.' "
Burlington N & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks
12
omitted).
A plaintiff may establish causal connection directly, through evidence of retaliatory
animus, or indirectly, by demonstrating close temporal proximity between the protected activity
and the adverse action. Sumner v. US. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990). The
Supreme Comt has noted that when courts accept mere temporal proximity between an
employer's knowledge of protected activity and an adverse employment action as sufficient
evidence of causality to establish a prima facie case, "the temporal proximity must be 'very
close.'" Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268,273 (2001). However, the Second
Circuit has not established a specific delay that defeats an inference of causation. Gorman-Bakos
v. Cornell Co-op Extension, 252 F.3d 545, 554-55 (2d Cir. 2001) (listing cases in the context of
Title VII retaliation).
Here, Plaintiff presents sufficient evidence to raise a genuine and material issue of fact
such that a reasonable trier of fact could find that Defendants retaliated against Plaintiff. First,
Plaintiff engaged in a protected activity when he repotted to Ms. Rodriguez that Defendant Min
was discriminating against him on the basis of his gender, and Defendant was aware of this
activity. (Pl. Aff.
,r 14); (Hanson Deel., Ex. A (Rodriguez Dep. Tr. 107:24-25).)
Parties do not
dispute that Plaintiff endured a materially adverse employment action, termination. (Defs.' Mot.
for Summ. J. p. 6.) Additionally, Plaintiffs poor 2013 performance appraisal is also a materially
adverse employment action patticularly because that performance appraisal led to the
implementation of the PIP procedure and his termination in November for failure to meet his PIP
goals. See Vega v. Hempstead Union Free School Dist., 801 F.3d 72, 92 (2d Cir. 2015) ("[A]
poor petformance evaluation could very well deter a reasonable worker from complaining."). But
see Johnson v. Frank, 828 F. Supp. 1143, 1153 (S.D.N.Y. 1993) ("Since the ... evaluation did not
13
affect the terms, privileges, duration or condition of. employment and there is no evidence to the
contrary, the retaliation complaint should be dismissed.").
Next, there must be evidence to support a causal connection between Plaintiffs
complaint to Human Resources and his 2013 "needs improvement" performance appraisal or his
termination. Defendants argue that Defendant Min and Ms. Wilenkin rated Plaintiffs 2013 job
performance as "needs improvement" as of May 2, 2014. (Defs.' 56.1 ,i 65.) To support this
claim, Defendants present an email dated May 2, 2014 between Ms. Wilenkin and Human
Resources representatives with information about merit-based employee raises for the coming
year which shows that Plaintiff was not to receive a raise. (Hanson Deel. Ex. AA); (Schuyler
Deel. Ex. 3 (Wilenkin Dep. Tr. 97:16--24).) However, this document does not actually indicate
that Plaintiff received a "needs improvement" rating on May 2, 2014. There is a "Pl" next to
Plaintiffs name under the "rating" column and reasonable factfinders could, when comparing
the "Pl" to "meets" next to other names, determine that PI stands for some variation of "needs
improvement," but they could also find that the meaning of "PI" is difficult to determine without
more context or explanation. There are no notes provided next to Plaintiffs name, but there are
notes for other employees in the chart. (Hanson Deel. Ex. AA.) Additionally, the cover email
for the chmt suggests that it is not finalized, as it appears that Ms. Wilenkin needed to speak with
someone else about the chart: "I think this is my version which I will need to get discuss with
Lindsay." (Id.) According to Plaintiff, he did not meet with Defendant Min or Ms. Wilenkin to
discuss his 2013 performance appraisal until June 2, 2014. (PL Aff. ,i 16.) Additionally, this
appraisal is dated June 3, 2014, not May 2. (Hanson Deel. Ex. FF.) A reasonable factfinder
could determine that Defendants did not assign Plaintiff a "needs improvement" rating until after
his May 14, 2014 meeting with Human Resources, and that there is a causal connection between
14
the adverse action and Plaintiffs protected activity. Assuming Defendants did not assign
Plaintiffs rating until June 3, 2014, Plaintiff received his negative performance rating less than
one month after his protected activity which is sufficient to establish temporal proximity. See
Treglia v. Town ofManlius, 313 F.3d 713, 721 (2d Cir. 2002) (holding that one month between
protected activity and the adverse employment action was sufficient to establish temporal
proximity); Feliciano v. City ofNew York, 14-CV-675l(PAE), 2015 WL 4393163, at *10
(S.D.N.Y., July 15, 2015) ("[W]here no additional facts are pied, temporal proximity ordinarily
requires that the allegedly retaliatory act occur within two months of the plaintiffs protected
activity.").
Additionally, as discussed supra in relation to Plaintiffs discrimination claim, a
reasonable factfinder could conclude that Defendants' reason for Plaintiffs tennination was
mere pretext, making retaliation the but for cause of Plaintiffs termination.
Defendants' motion for summary judgment on Plaintiffs Title VII and NYSHRL
retaliation claims is denied.
III.
Aiding and Abetting
"Notably, the NYSHRL makes it unlawful for an employer to discriminate." Colon v.
Afark-Viverito, No. 16-CV-4540 (VSB), 2018 WL 1565635, at *9 (S.D.N.Y. Mar. 26, 2018)
(internal quotation marks omitted). Nevertheless, the NYSHRL also allows for "[i]ndividuals
who are not a plaintiffs employer to be held liable for aiding and abetting discriminatory or
retaliatory conduct." Hughes v. Twenty-First Century Fox, Inc., No. 17-CV-7093, 2018 WL
1940175, at *14 (S.D.N.Y. Apr. 24, 2018); see also N.Y. Exec. Law§ 296(6) ("It shall be
unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of
15
any of the acts forbidden under this aiticle, or to attempt to do so.").
The only argument Defendants advance in favor of granting summary judgment and
dismissing Plaintiffs aiding and abetting claim is that Defendant Min cannot be held liable as an
aider or abettOl" without any underlying liability on behalf of Defendant Open Door for
discrimination and retaliation under the NYSHRL. (Defs.' Mot. for Summ. J. ,i,i 23-24.)
Defendants' arguments, however, ai·e unavailing given that NYSHRL claims for discrimination
and retaliation remain against Defendant Open Door. Because Defendants do not present any
other argument in favor of summary judgment on Plaintiffs aiding and abetting claims,
Defendants' motion is denied.
CONCLUSION
For the foregoing reasons, Defendants' motion is DENIED. The Clerk of the Court is
respectfully requested to terminate the motion at ECF No. 44. The paities are directed to appear
before this honorable Comt on October 12, 2018 at 11 :00 a.m. for a pretrial conference.
Dated:
September 28, 2018
White Plains, New York
SO ORDERED:
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?