Emanuel et al v. Gap, Inc. et al
Filing
192
OPINION AND ORDER re: 178 MOTION for Summary Judgment . filed by Gregoire Jean-Louis, Michelle Russo, Gap, Inc., Banana Republic, LLC, Toni Lynn Borowski. For the foregoing reasons, Defendants' motion for summary judgment is DENIED. The parties are directed to meet and confer and comply with Rules 6(A) and 6(B) of the Courts Individual Practices (rev. June 23, 2023) by filing the documents required therein, which include a joint pretrial order, proposed joint voir dire questions, joint requests to charge, joint verdict form, and motions in limine, on or before September 13, 2023. A pretrial conference has been scheduled for October 26, 2023 at 12:00 p.m. to be held in Courtroom 520 of the White Plains cour thouse. The Clerk of Court is respectfully requested to terminate the motion sequence pending at Doc. 178. SO ORDERED. (Motions due by 9/13/2023., Pretrial Order due by 9/13/2023., Pretrial Conference set for 10/26/2023 at 12:00 PM in Courtroom 520, 300 Quarropas Street, White Plains, NY 10601 before Judge Philip M. Halpern.) (Signed by Judge Philip M. Halpern on 8/14/2023) (jca)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
DESA EMANUEL, et al.,
Plaintiffs,
v.
OPINION AND ORDER
19-CV-03617 (PMH)
GAP, INC., et al.
Defendants.
---------------------------------------------------------X
PHILIP M. HALPERN, United States District Judge:
Desa Emanuel (“Emanuel”) and Lacrena Taylor (“Taylor,” and with Emanuel, “Plaintiffs”)
bring this action under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e
et seq., 42 U.S.C. § 1981 (“§ 1981”), and New York State Human Rights Law (“NYSHRL”), N.Y.
Exec. Law § 296 et seq., alleging that Gap, Inc. (“Gap”), Banana Republic, LLC (“Banana
Republic,” and with Gap, the “Corporate Defendants”), 1 Michelle Russo (“Russo”), Gregoire
Jean-Louis (“Jean-Louis”), and Toni Lynn Borowski (“Borowski,” and collectively,
“Defendants”) unlawfully terminated Plaintiffs.
Plaintiffs filed their initial Complaint on April 23, 2019. (Doc. 1). On May 8, 2023,
Plaintiffs filed their First Amended Complaint with leave of the Court. (Doc. 70, “FAC”). The
FAC alleges five claims for relief against one or more Defendants: (i) discrimination and
retaliation under Title VII; (ii) discrimination and retaliation under § 1981; (iii) discrimination and
retaliation under NYSHRL; (iv) aiding and abetting; and (v) defamation. (Doc. 70, “FAC”).
Plaintiffs withdrew the fifth claim for relief for defamation on November 30, 2022. (Doc. 176).
Defendants filed their motion for summary judgment under Federal Rule of Civil
Procedure 56 on October 21, 2021. (Doc. 148). The Court denied Defendants’ motion for summary
1
Banana Republic is a wholly-owned subsidiary of Gap, which is a publicly held corporation. (Doc. 23).
judgment without prejudice (Doc. 169) and permitted the filing of a substitute summary judgment
motion after the parties filed a compliant Rule 56.1 statement. (Doc. 172, “56.1 Stmt”; Doc. 174).
Presently pending before the Court is Defendants’ December 5, 2022 renewed motion for
summary judgment on all claims under Federal Rule of Civil Procedure 56, filed in accordance
with the briefing schedule set by the Court. (Doc. 178; Doc. 179, “Def. Br.”; Doc. 180, “Pl. Br.”;
Doc. 181, “Reply Br.”; Doc. 183, “Filippatos Decl.”; Doc. 184, “Sobocinski-Nasierowski Decl.”;
Doc. 185, “Jean-Louis Decl.”; Doc. 186, “Russo Decl.”; Doc. 187, “Borowski Decl.”; Doc. 188,
“Railey Decl.”; Doc. 189, “Schmidt Decl.”). Defendants seek summary judgment primarily
because they believe that Plaintiffs cannot make out a prima facie case of discrimination, Plaintiffs
were terminated for legitimate non-discriminatory reasons, and there was no causal connection,
for retaliation purposes, between a protected activity and termination.
For the reasons set forth below, Defendants’ renewed motion for summary judgment is
DENIED.
BACKGROUND
The facts recited below are taken from Plaintiffs’ FAC, Defendants’ 56.1 Statement with
Plaintiffs’ Responses and Counterstatement, and the admissible evidence submitted by the parties.
I.
Plaintiffs’ Employment Background
Emanuel, an African American woman, began her employment at Banana Republic in 2009
as a General Manager. (56.1 Stmt ¶ 3). Emanuel served as General Manager of the Vernon Hills
Banana Republic store in Scarsdale, New York (“Vernon Hills Store”) from August 2017 until her
termination in March 2018. (Id.).
Taylor, an African American woman, was hired in June 2017 as an Associate Store
Manager at the Vernon Hills Store. (Id. ¶ 1). On October 4, 2017, Destiny Tompkins, an African
2
American sales associate at the Banana Republic store at the Westchester Mall in White Plains,
New York (“Westchester Store”), posted to Facebook that her manager told her that her box braids
were not appropriate and too “urban” for Banana Republic’s image. (Id. ¶ 8). Banana Republic
terminated that manager on October 7, 2017. (Id.). Taylor was promoted to General Manger of the
Westchester Store on or about October 29, 2017, and remained General Manager at that location
until her March 2018 termination. (Id. ¶ 2).
Plaintiffs were supervised by Russo, District Manager of the Long Island/Westchester
District, starting in late January 2018. (Id. ¶ 5).
As employees of Banana Republic, Plaintiffs are subject to the policies set out in Corporate
Defendants’ “Employee Policy Guide.” The Employee Policy Guide includes the following
timekeeping policy:
Every non-exempt (hourly) employee must be paid for all hours worked… it is
against Company policy to modify time records or fail to report hours so that an
employee is not paid for all hours worked . . .Willful violation of timekeeping
policies, including falsifying timecards or encouraging others to do so, may result
in discipline up to and including immediate termination for all employees involved.
Managers may never encourage or allow any violation of this policy.
(Id. ¶ 15).
Despite this policy, Taylor and Emanuel testified they understood that a “three-minute
grace period” allowed them to modify an employee’s time entry up to three minutes if an employee
was early or late punching in or out three minutes or less. (Id. ¶ 20). At least two other managers
at Banana Republic, and potentially more, believed that this unofficial “three-minute grace period”
existed. (Doc. 191-1, “Reitman Aff.” at ¶ 11; Doc. 191-2, “Kolibabek Aff.” at ¶ 18; Filippatos
3
Decl. ¶ 2, Ex. 20) 2. In contrast, several members of company leadership, including Borowski,
Regional Human Resources Senior Manager of the Northeast Region, understood that modifying
an employee’s time punches is a violation of Banana Republic policy and was a terminable offense.
(56.1 Stmt ¶¶ 6, 21).
II.
First Audit of the Westchester Store
Banana Republic performs store compliance audits on a regular basis. (Id. ¶ 22). On
February 12, 2018, Deborah Sobocinski, Manager of Internal Audit, selected the Westchester Store
to be audited because it was ranked number one in the district on the Store Selection Tool report
and it was within commuting distance. (Id. ¶ 23). The Westchester Store failed the audit, including
the Meal Period Compliance part of the audit because employees’ breaks did not occur in the
proper timeframes. (Id. ¶¶ 24-25). Taylor received a copy of the audit report on February 16, 2018,
which stated that the Westchester Store would be re-audited in 30-60 days. (Id. ¶ 26).
III.
Field Leadership Conference
Banana Republic held a company Field Leadership Conference (“FLC”) in Orlando,
Florida in early March which included a panel on diversity and inclusion. (Id. ¶ 9). After the panel
and FLC dinner on March 7, 2018, Borowski was informed that multiple general managers,
including Taylor and Emanuel, had expressed concerns that Russo was repeatedly referring to
Taylor as “the manager from The Westchester.” (Id. ¶¶ 10-11). Taylor, Emanuel, and another
General Manager, Jasmine Roache, discussed their concerns about Russo with Borowski on March
12, 2018. (Id. ¶ 11). Specifically, Taylor testified that she told Borowski that Russo had mockingly
referred to Taylor as “Lacrena from The Westchester,” commented that her cousin posted on social
Despite thousands of pages of documentary material having been submitted in connection with this motion,
Plaintiffs failed to file the Affidavits of Melissa Kolibabek and Kyle Reitman—though there were repeated
references to these affidavits in the 56.1 Statement and briefs—until August 4, 2023, in response to a Court order
directing they be filed. (Docs. 190-191).
2
4
media saying that Taylor looked like Michelle Obama, mispronounced Taylor’s name, and said
that she could say those things because she “had African descent.” (Filippatos Decl., Ex. 1 “Taylor
Dep. Tr.” at 167:7-189:6).
Borowski investigated their complaints and spoke with Russo’s supervisor. (56.1 Stmt ¶
13). Banana Republic concluded that Russo should have recognized the situation was bothering
Taylor and should have addressed it. (Id. ¶ 14). On March 16, 2018, Russo was issued a Corrective
Action for failing to recognize this “on notice” situation and take appropriate action. (Id.).
IV.
Second Audit of the Westchester Store
Sobocinski chose to re-audit the Westchester Store on March 20, 2018. (Id. ¶ 27). The store
failed again but improved its score on Meal Period Compliance from a failing score to a passing
score. (Id.; Schmidt Decl. ¶ 32, Ex. P at 21). Thereafter, Sobocinski ran a timecard modification
report for the time period of February 18, 2018 to March 17, 2018 which showed that Taylor had
made modifications to employees’ timecards. (56.1 Stmt ¶¶ 28-29; Schmidt Decl. ¶ 31, Ex. O;
Filippatos Decl. ¶ 2, Ex. 3 “Sobocinski Dep. Tr.” at 57:21). Sobocinski contacted Russo, JeanLouis, and Borowski to let them know that an investigation needed to take place. (56.1 Stmt ¶ 30).
V.
Investigations and Terminations of Plaintiffs
a. Taylor
Russo testified that she reached out to Borowski and Jean Schmidt regarding her
involvement in the investigation in light of the company’s retaliation policy and the fact that she
had been issued a Corrective Action based on Taylor’s complaint. (Filippatos Decl. ¶ 2, Ex. 11
“Russo Dep. Tr.” at 244:19-248:22). Jean-Louis and Railey were designated to conduct the
investigation into Taylor’s timecard modifications, and Russo was told to be available to
administer any discipline based on timecard modifications. (56.1 Stmt ¶¶ 32, 80). Sobocinski,
5
Railey, and Jean-Louis were not aware of any complaint made by either Plaintiff against Russo
during the audit or timecard investigations. (Id. ¶ 63).
Sobocinski emailed a summary of her findings with respect to Taylor’s timecard
modifications at the Westchester Store to Jean-Louis, Borowski, and Russo on March 21, 2018.
(Id. ¶ 33). The report showed that Taylor had made 32 edits, 20 of which resulted in a loss of pay
to the employee, and that there were more modifications beyond that number. (Id. ¶ 34). In late
March, Jean-Louis and Loss Prevention Associate, Maura Kelleher, reviewed video footage and
confirmed that Taylor made the reported modifications. (Id. ¶¶ 37-38). Jean-Louis emailed his
findings to Borowski, Russo, Schmidt, Railey, and others on March 26, 2023, reporting that Taylor
had made 87 edits, which removed 16 hours and 45 minutes of employees’ time. (Id. ¶¶ 39-40).
Railey interviewed Taylor on March 27, 2023 with Jean-Louis present. (Id. ¶ 42; Schmidt
Dec. ¶ 45, Ex. CC). Taylor admitted in that interview to modifying timecards pursuant to the
“three-minute rule” in order to be compliant with the meal/break policy. (56.1 Stmt ¶ 46). The
parties dispute whether Taylor was confronted at this interview with records reflecting
modifications greater than three minutes. (Id. ¶ 47; Schmidt Decl. ¶ 45, Ex. CC at 3; Taylor Dep.
Tr. at 141:9-145:18). Although the details of the interaction are disputed, the record shows that
there was at least some discussion about Taylor’s level of cooperation with the investigation, and
then the meeting concluded. (56.1 Stmt ¶ 48; Borowski Decl. ¶ 58; Taylor Dep. Tr. at 143:21144:4). Russo, Railey, and Jean-Louis gathered in the office after Taylor’s interview and held a
disposition discussion with Borowski on speakerphone. (56.1 Stmt ¶ 43; Filippatos Decl. ¶ 2, Ex.
4 “Jean-Louis Tr.” at 314:17-315:4). The decision was made that Russo and Railey would meet
with Taylor again to remind her of her obligation to participate in the investigation, and, unless
she provided a valid explanation for her timecard modifications, to terminate Taylor. (Borowski
6
Decl. ¶ 60; Jean-Louis Tr. at 323:23-324:4; 325:3-7). Russo terminated Taylor at a second meeting
later that day. (56.1 Stmt ¶ 51; Borowski Decl. ¶ 61; Taylor Dep. Tr. at 144:22-145:18).
Railey and Jean-Louis interviewed Melissa Kolibabek, Assistant Manager at the
Westchester Store on the same day as Taylor with respect to Kolibabek’s own timecard
modifications. (56.1 Stmt ¶ 42; Schmidt Decl. ¶ 44, Ex. BB). The parties dispute whether
Kolibabek said in this interview that Taylor trained her to modify employees’ time entries. (56.1
Stmt ¶ 44; Kolibabek Aff. ¶¶ 9-17; Doc. 188 “Railey Decl.” ¶ 38). The parties also dispute whether
Russo and Jean-Louis made Kolibabek cry at this interview with repeated questioning about
Taylor’s instructions to her. (56.1 Stmt ¶ 93). Thereafter, a decision was made that Kolibabek
would be coached and re-trained, and Russo instructed Kolibabek to return to work. (Kolibabek
Aff. ¶ 17; Schmidt Decl. ¶ 44, Ex. BB).
b. Emanuel
On March 22, 2018, Banana Republic leadership decided to expand their investigation to
the Vernon Hills Store where Taylor had previously worked. (56.1 Stmt ¶ 35). Sobocinski
reviewed timecard modification reports from the Vernon Hills Store and found questionable
modifications made by Emanuel and other managers. (Id. ¶ 36). Jean-Louis reviewed the timecard
modifications at the Vernon Hills Store and found Emanuel made 12 edits which removed 39
minutes of time and that she was not the only manager at that location who made modifications to
timecards. (Id. ¶ 53; Schmidt Decl. ¶ 46, Ex. DD). Railey and Jean-Louis interviewed several
members of the management team at the Vernon Hills Store, including Emanuel, on March 28,
2018. (56.1 Stmt ¶ 54). The parties dispute exactly what Emanuel said during this interview, but
Emanuel’s timecard modifications were discussed. (Id. ¶ 58; Railey Decl. ¶ 45; Filippatos Decl. ¶
2, Ex. 2 “Emanuel Dep. Tr.” at 132:15-134:9). After Emanuel’s interview, Railey and Jean-Louis,
7
with Russo present in the room, called Borowski on speakerphone for a disposition discussion.
(56.1 Stmt ¶ 55). It was decided that Emanuel would be terminated that day, although the parties
dispute whether this was Borowski’s decision alone. (Id. ¶ 59; Schmidt Decl. ¶ 50, Ex. HH). The
other members of the management team at the Vernon Hills Store were not terminated because
both said they felt pressured by Emanuel to make timecard modifications. (56.1 Stmt ¶ 60).
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56, a court “shall grant summary judgment if
the movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed R. Civ. P. 56(a). “A fact is ‘material’ if it ‘might affect the
outcome of the suit under the governing law,’ and is genuinely in dispute ‘if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.’” Liverpool v. Davis, 442
F.Supp.3d 714, 722 (S.D.N.Y. 2020) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “‘Factual disputes that are irrelevant or unnecessary’ are
not material and thus cannot preclude summary judgment.” Sood v. Rampersaud, No. 12-CV-5486,
2013 WL 1681261, at *1 (S.D.N.Y. Apr. 17, 2013) (quoting Anderson, 477 U.S. at 248, 106 S.Ct.
2505). The Court’s duty, when determining whether summary judgment is appropriate, is “not to
resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Id.
(quoting Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010)). Indeed, the Court’s function
is not to determine the truth or weigh the evidence. The task is material issue spotting, not material
issue determining. Therefore, “where there is an absence of sufficient proof as to one essential
element of a claim, any factual disputes with respect to other elements of the claim are immaterial.”
Bellotto v. Cty. of Orange, 248 F. App’x 232, 234 (2d Cir. 2007) (quoting Salahuddin v. Goord,
467 F.3d 263, 281 (2d Cir. 2006)).
8
“It is the movant’s burden to show that no genuine factual dispute exists.” Vermont Teddy
Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). The Court must “resolve all
ambiguities and draw all reasonable inferences in the non-movant's favor.” Id. (citing Giannullo
v. City of N.Y., 322 F.3d 139, 140 (2d Cir. 2003)). Once the movant has met its burden, the nonmovant “must come forward with specific facts showing that there is a genuine issue for trial.”
Liverpool, 442 F.Supp.3d at 722 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). The non-movant cannot defeat a
summary judgment motion by relying on “mere speculation or conjecture as to the true nature of
the facts.” Id. (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986)). However, if
“there is any evidence from which a reasonable inference could be drawn in favor of the opposing
party on the issue on which summary judgment is sought, summary judgment is improper.” Sood,
2013 WL 1681261, at *2 (citing Sec. Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391
F.3d 77, 83 (2d Cir. 2004)).
Should there be no genuine issue of material fact, the movant must also establish its
entitlement to judgment as a matter of law. See Glover v. Austin, 289 F. App’x 430, 431 (2d Cir.
2008) (“Summary judgment is appropriate if, but only if, there are no genuine issues of material
fact supporting an essential element of the plaintiffs’ claim for relief.”); Pimentel v. City of New
York, 74 F. App’x 146, 148 (2d Cir. 2003) (holding that because plaintiff “failed to raise an issue
of material fact with respect to an essential element of her[ ] claim, the District Court properly
granted summary judgment dismissing that claim”). Simply put, the movant must separately
establish that the law favors the judgment sought.
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“Courts have acknowledged the dangers of summary judgment in discrimination cases:
‘Because direct evidence of ... discriminatory intent will rarely be found, affidavits and depositions
must be carefully scrutinized for circumstantial proof which, if believed, would show
discrimination.’” Benson v. Fam. Dollar Stores, Inc., No. 12-CV-01457, 2017 WL 11576213, at
*3 (N.D.N.Y. Mar. 31, 2017) (quoting Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997)
(citations and internal quotation marks omitted)), aff’d sub nom. Benson v. Fam. Dollar
Operations, Inc., 755 F. App’x 52 (2d Cir. 2018).
ANALYSIS
I.
Title VII, Section 1981, and NYSHRL Race Discrimination Claims
Plaintiffs assert three claims for relief sounding in discrimination on the basis of race under
Title VII (against Corporate Defendants) 3, Section 1981 (against all Defendants), and NYSHRL 4
(against all Defendants). (See generally FAC). “Claims of discrimination under Title VII are
analyzed at the summary judgment stage under the burden-shifting test announced by McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).” Howard v. City of New York, 302 F. Supp. 2d 256,
260 (S.D.N.Y. 2004), aff’d, 363 F. App’x 805 (2d Cir. 2010). Discrimination claims under
NYSHRL and § 1981 are likewise analyzed under the McDonnell framework. See KirklandHudson v. Mount Vernon City Sch. Dist., No. 21-CV-0695, 2023 WL 2691622, at *14 (S.D.N.Y.
Mar. 29, 2023) (citing Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 74-75 (2d Cir. 2016)). Phase one
3
Plaintiffs acknowledge that no Title VII claim may be brought against the Individual Defendants. (Pl.
Br. at 13, n. 7).
4
Although not mentioned by the parties, the NYSHRL was amended, effective October 11, 2019. See
Makhsudova v. City of New York, No. 20-CV-10728, 2022 WL 1571152, at *5 n.7 (S.D.N.Y. May 18, 2022)
(“The New York State Legislature passed several amendments to the NYSHRL in June 2019, the effect of
which was to render the standard for claims closer to the standard under the NYCHRL.”). That amendment
does not impact the Court’s analysis given the NYSHRL claims for relief are based on events that occurred
prior to October 2019.
10
of the McDonnell Douglas test places upon the plaintiff the burden of establishing a prima facie
case of discrimination by alleging that: “(1) [s]he is a member of a protected class; (2) [her] job
performance was satisfactory; (3) [s]he was subject to an adverse employment action; [and] (4)
the adverse employment action occurred under circumstances giving rise to an inference of
discrimination based on [race].” Woods v. Ruffino, 8 F. App’x 41, 42 (2d Cir. 2001) (citing
McDonnell Douglas, 411 U.S. at 802).
If the plaintiff sets forth a prima facie case of discrimination, “the burden of production
then shifts to the defendant to offer a legitimate, non-discriminatory rationale for the adverse
employment action.” Wesley-Dickson v. Warwick Valley Cent. Sch. Dist., 973 F. Supp. 2d 386,
397 (S.D.N.Y. 2013), aff’d, 586 F. App’x 739 (2d Cir. 2014) (quoting McDonnell Douglas, 411
U.S. at 802-03). “If the defendant articulates a legitimate reason for the action, the presumption of
discrimination raised by the prima facie case drops out, and the plaintiff has the opportunity to
demonstrate that the proffered reason was not the true reason for the employment decision and that
the plaintiff’s membership in a protected class was.” Id. (citing McDonnell Douglas, 411 U.S. at
804). Although the McDonnell Douglas framework is employed to analyze § 1981 claims, at the
third step of the analysis Plaintiffs must “prove that, but for race, it would not have suffered the
loss of a legally protected right.” Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S.
Ct. 1009, 1019, 206 L.Ed.2d 356 (2020).
a. Phase One: Prima Facie Case
Defendants do not dispute that Plaintiffs have established the first three prongs of a prima
facie case of race discrimination (Def. Br. at 16, n.6), and the Court therefore considers such
argument waived. See Vasquez v. New York City Dep’t of Educ., No. 11-CV-03674, 2015 WL
3619432, at *14 (S.D.N.Y. June 10, 2015), aff’d, 667 F. App’x 326 (2d Cir. 2016) (“Courts
11
generally deem an argument waived or abandoned if a party fails to make it.”). Rather, Defendants
argue that Plaintiffs cannot satisfy the fourth element—i.e. no reasonable jury could find that
Plaintiffs suffered an adverse employment action that occurred under circumstances giving rise to
an inference of race discrimination. (Def. Br. at 10).
“[T]he burden on the plaintiff of presenting a prima facie case of discrimination under
McDonnell Douglas is ‘minimal.’” Bailey v. Colgate-Palmolive Co., No. 99-CV-3228, 2003 WL
21108325, at *16 (S.D.N.Y. May 14, 2003), aff’d, 93 F. App’x 321 (2d Cir. 2004) (quoting James
v. New York Racing Ass’n, 233 F.3d 149, 154 (2d Cir. 2000)). Specific to the fourth element of a
prima facie race discrimination claim, the standard is “flexible” and “can be satisfied differently
in differing factual scenarios.” Howard v. MTA Metro-N. Commuter R.R., 866 F. Supp. 2d 196,
204 (S.D.N.Y. 2011) (quoting Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir.
1996)); see also Smith v. New York & Presbyterian Hosp., 440 F. Supp. 3d 303, 329 (S.D.N.Y.
2020) (“The facts required to meet this element of the prima facie case will ‘inevitably vary in
different employment discrimination cases.’” (quoting McGuinness v. Lincoln Hall, 263 F.3d 49,
53 (2d Cir. 2001))). While the burden on a plaintiff is minimal, “purely conclusory allegations of
discrimination, absent any concrete particulars,” will not suffice. Smith, 440 F. Supp. 3d at 328
(quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)). “Circumstances which may give rise
to an inference of discrimination include ‘the employer’s criticism of the plaintiff’s performance
in ethnically degrading terms; or its invidious comments about others in the employee’s protected
group; or the more favorable treatment of employees not in the protected group; or the sequence
of events leading to the [adverse action].’” Id. (quoting Littlejohn v. City of New York, 795 F.3d
297, 312 (2d Cir. 2015)).
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Plaintiffs argue that Defendants’ “blatantly more favorable treatment” of Kolibabek, a
Caucasian assistant manager at the Westchester Store gives rise to an inference of discrimination.
(Pl. Br. at 19). “A showing of disparate treatment—that is, a showing that an employer treated
plaintiff less favorably than a similarly situated employee outside his protected group—is a
recognized method of raising an inference of discrimination for the purposes of making out a prima
facie case.” Abdul-Hakeem v. Parkinson, 523 F. App’x 19, 20-21 (2d Cir. 2013) (quoting Ruiz v.
Cnty. of Rockland, 609 F.3d 486, 493 (2d Cir. 2010)). “The ‘standard for comparing conduct
requires a reasonably close resemblance of the facts and circumstances of plaintiff’s and
comparator’s cases,’ such that ‘the comparator must be similarly situated to the plaintiff in all
material respects.’” Abdul-Hakeem, 523 F. App’x at 21 (quoting Ruiz, 609 F.3d at 494); Graham
v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (“[T]he plaintiff must show she was similarly
situated in all material respects to the individuals with whom she seeks to compare herself.”). “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.” Johnson v. L’Oreal
USA, No. 21-2914-CV, 2023 WL 2637456, at *4 (2d Cir. Mar. 27, 2023) (quoting Ruiz, 609 F.3d
at 493-94); see also Graham, 230 F.3d at 40.
As a threshold matter, Plaintiffs may be found similarly situated to Kolibabek despite the
fact that they held different management titles if they were subject to the same workplace
standards. See i.e., Senno v. Elmsford Union Free Sch. Dist., 812 F. Supp. 2d 454, 476 (S.D.N.Y.
2011) (finding Plaintiff made the requisite minimal showing that he and comparator were “subject
to the same workplace standards” where both were senior administrators but one was ranked higher
than the other in the organizational hierarchy); see also Gorzynski v. JetBlue Airways Corp., 596
F.3d 93, 109 n.7 (2d Cir. 2010) (“[a]lthough an employee’s position is relevant to the analysis,
13
employees need not be of the exact same rank to be considered similarly situated”); see also
Graham, 230 F.3d at 40 (observing that “[w]hat constitutes ‘all material respects’ . . . varies
somewhat from case to case,” but “there should be an objectively identifiable basis for
comparability”).
Kolibabek had worked as an Assistant Manager at the Westchester Store for approximately
four months prior to the investigations. (Kolibabek Aff. ¶ 7). Taylor had worked as an Assistant
Manager for four months and a General Manager for five months prior to the investigations (56.1
Stmt ¶ 2), and Emanuel had worked as a General Manager for approximately nine years leading
up to the investigations. (Id. ¶ 3). Even considering their differing levels of experience, the record
shows that both Plaintiffs and Kolibabek were subject to the same timekeeping policy which refers
only to “managers” and does not distinguish between the various levels of management. (Id. ¶ 15,
“[w]illful violation of timekeeping policies, including falsifying timecards or encouraging others
to do so, may result in discipline up to and including immediate termination for all employees
involved. Managers may never encourage or allow any violation of this policy”). Therefore, a
genuine issue of material fact exists as to whether, as managers, they were subject to the same
disciplinary standard given that discipline for violation of Banana Republic’s timekeeping policy
is categorical. See i.e., Graham, 230 F.3d at 42 (finding a material question of fact as to whether
employees were similarly situated where “[n]owhere does the policy refer to the position held by
the employee. Rather, the language stipulating dismissal for a violation is categorical.”)
Additionally, a jury may find that Plaintiffs and Kolibabek engaged in comparable conduct
because they violated the same policy with the same misconduct—modifying employee timecards
causing a loss of time to employees. Banana Republic became aware of Kolibabek’s violations
around the same time as it became aware of Plaintiffs’ misconduct, and utilized the same
14
investigative team and human resources person to determine discipline. (Schmidt Decl. ¶¶ 44-45,
50, Exs. BB, CC, HH). Plaintiffs and Kolibabek explained their conduct based on the same
understanding of the existence of a “three-minute grace period.” (56.1 Stmt ¶ 20; Kolibabek Aff.
¶ 18). However, only Plaintiffs were terminated.
In light of the fact that the burden of establishing a prima facie case is minimal and given
the non-conclusory nature of the allegations, the Court finds that Plaintiffs have satisfied their
phase one burden and moves to phase two of the McDonnell Douglas standard.
b. Phase Two: Legitimate, Non-Discriminatory Reason
At phase two, “the burden of production [ ] shifts to the defendant to offer a legitimate,
non-discriminatory rationale for the adverse employment action.” Wesley-Dickson, 973 F. Supp.
2d at 397 (quoting McDonnell Douglas, 411 U.S. at 802-03). Here, Plaintiffs’ terminations
constitute adverse employment actions. See Witek v. City of New York, 807 F. App’x 52, 54 (2d
Cir. 2020) (“[T]ermination certainly constitute[s an] adverse employment action[ ]”). Based on the
evidence in the record, no reasonable jury could find that Defendants failed to satisfy their burden
of establishing that there was a legitimate non-discriminatory reason for the adverse employment
action.
It is undisputed that Plaintiffs violated company policy by modifying employees’ time
entries. Additionally, Banana Republic’s timekeeping policy explicitly warns that a violation of
the policy may lead to termination. (56.1 Stmt ¶ 15). Whether or not Plaintiffs’ timecard
manipulation was authorized by an unofficial three-minute policy, this misconduct remains a
legitimate, non-discriminatory reason because Defendants believed it a terminable offense. (Id. ¶
21); see McPherson v. New York City Dep’t of Educ., 457 F.3d 211, 216 (2d Cir. 2006) (“In a
discrimination case, however, we are decidedly not interested in the truth of the allegations against
15
plaintiff. We are interested in what motivated the employer.”) Plaintiffs’ violation of Company
timekeeping policy is a legitimate, non-discriminatory reason for the Company’s decision to
terminate them. See Deluca v. Bank of Tokyo-Mitsubishi UFJ, Ltd., No. 06-CV-05474, 2008 WL
857492, at *10 (S.D.N.Y. Mar. 31, 2008) (“The decision to terminate a senior manager who fails
to comply with company policy . . . is a legitimate, non-discriminatory reason for termination.”).
Accordingly, Defendants offered a legitimate non-discriminatory reason for Plaintiffs’
terminations.
c. Phase Three: Pretext
Phase three of the McDonnell Douglas burden shifting analysis requires Plaintiff “to
demonstrate that the proffered reason was not the true reason for the employment decision and that
the plaintiff’s membership in a protected class was.” Wesley-Dickson, 973 F. Supp. 2d at 397. This
requires Plaintiff to “come forward with ‘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].’” Hartley v. Rubio, 785
F. Supp. 2d 165, 180 (S.D.N.Y. 2011) (quoting Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d
Cir. 2000)); see also Rajcoomar v. TJX Cos., Inc., 319 F. Supp. 2d 430, 438 (S.D.N.Y. 2004) (“The
Supreme Court has articulated that ‘a reason cannot be proved to be a pretext for discrimination’
unless it is shown both that the reason was false, and that discrimination was the real reason.’”
(quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993))).
To demonstrate pretext with respect to Plaintiffs’ Title VII and NYSHRL discrimination
claims, “a plaintiff must submit admissible evidence showing circumstances to permit a rational
finder of fact to find that the defendant’s conduct was motivated in whole or in part by
discrimination.” Rajcoomar, 319 F. Supp. 2d at 438. The admissible evidence offered by a plaintiff
16
must go beyond “self-serving and conclusory allegations that the defendants’ proffered reasons
were false.” Hartley, 785 F. Supp. 2d at 180 (citing Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d
Cir. 1995)); Alleyne v. Four Seasons Hotel, No. 99-CV-03432, 2001 WL 135770, at *11 (S.D.N.Y.
Feb. 15, 2001), aff’d sub nom. 25 F. App’x 74 (2d Cir. 2002) (“The plaintiff [ ] fails to offer any
acts, statements, or admissions by a decision-maker to support her allegations of bias . . . and the
plaintiff’s conclusory and self-serving allegations that she was discriminated against are
insufficient to demonstrate that [defendants’] nondiscriminatory reasons were a pretext for
discrimination.”). “Moreover, an employer’s decisions are given deference by the court unless they
are clearly pretextual.” Hartley, 785 F. Supp. 2d at 180 (citing Deabes v. Gen. Nutrition Corp.,
415 Fed. App’x 334, 336 (2d Cir. 2011)). “A showing that similarly situated employees belonging
to a different [protected class] 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 . . . discrimination.” Graham, 230 F.3d at 43.
Plaintiffs argue that Banana Republic’s disparate treatment of Kolibabek is evidence of
pretext. 5 (Pl. Br. at 23-24). Defendants counter that Kolibabek is not similarly situated to Plaintiffs
because she was of a different management level, had different awareness of company policies
5
Plaintiffs also state in their briefing that Catherine Rosenthal, a Caucasian Assistant Manager at the
Vernon Hills Store, made timecard modifications but was not terminated. (Pl. Br. at 24). Plaintiffs do not
argue that Ms. Rosenthal is a comparator. (Id.; Reply Br. at 13, n.10). The record shows that Ms. Rosenthal
was investigated for modifying her own timecards on two occasions in order to cut her own hours, and was
issued a Corrective Action thereafter. (Schmidt Decl. ¶ 51, Ex. II; Filippatos Decl. ¶ 2, Ex. 22). Given
Plaintiffs’ lack of argument in briefing and the fact that Ms. Rosenthal’s conduct did not result in the loss
of employee time other than her own, the Court will not consider Ms. Rosenthal as a comparator. Graham,
230 F.3d at 39.
17
and the requirements of New York law, and had been employed for a different amount of time. 6
(Def. Br. at 23-24; Reply Br. at 11-12). The Court finds that a reasonable jury could find Plaintiffs
are similarly situated to Kolibabek.
As discussed supra, although employees’ positions in a company are “relevant to the
analysis, employees need not be of the exact same rank to be considered ‘similarly situated.’”
Gorzynski, 596 F.3d 93 n.7. 7 The inquiry is focused on workplace standards. See i.e., Senno, 812
F. Supp. 2d at 476. Here, the evidence does not support there being a significant difference between
the workplace standards for Assistant and General Managers of Banana Republic such that they
could not be found similarly situated as a matter of law. Rather, the record shows that all managers
were expected to abide by the same timekeeping policy which required maintenance of accurate
timecards. (56.1 Stmt ¶ 15). Additionally, Sobocinski had a discussion with an Assistant Manager
at the Westchester Store about New York State meal/break rules on at least one occasion, which
shows that Banana Republic had at least some expectations that Assistant Managers would be
aware of company policies regarding timing of breaks. (Id. ¶ 83). Also, despite having deposed
several members of Banana Republic’s leadership, Defendants do not cite to any record evidence
to support their assertion that “behavioral expectations for Plaintiffs as General Managers were
significantly different from the expectations for the managers who reported to them.” (Def. Br. at
23). Therefore, a reasonably jury could find that Plaintiffs were held to the same workplace
standards as Kolibabek with respect to timekeeping.
6
Defendants also argue that, in any event, Kolibabek is not a similarly situated comparator because she was
acting on instruction from Plaintiffs regarding three-minute modifications. (Def. Br. at 23). However,
Kolibabek states in her affidavit that she had only ever been instructed to edit a timecard once by Katrin
Elcock because Ms. Elcock had forgotten to clock out. (Kolibabek Aff. ¶ 12). Accordingly, whether
Kolibabek made timecard modifications on instruction from Plaintiffs is a genuinely disputed fact.
7
Notably, Taylor had been promoted from Assistant Manager to General Manager after only approximately
four months of working at Banana Republic. (56.1 Stmt ¶¶ 1-2).
18
A reasonable jury could also find that Kolibabek engaged in misconduct of comparable
seriousness to Plaintiffs since she committed the same violation of Banana Republic’s timekeeping
policy by manipulating timecards. See Hamilton v. DeGennaro, No. 17-CV-07170, 2019 WL
6307200, at *11 (S.D.N.Y. Nov. 25, 2019) (“For comparators to be similarly situated, a plaintiff
must show those employees engaged in acts of comparable seriousness. A proposed comparator is
not similarly situated unless she engaged in all of the same misconduct as plaintiff, or at least
committed the most serious infractions for which the plaintiff was subjected to an adverse
employment action.”). Specifically, Kolibabek made 7 edits which took away 19 minutes of time,
Emanuel made 12 edits which took away 39 minutes of time, and Taylor made 87 edits which took
away 16 hours and 45 minutes of employees’ time. (56.1 Stmt ¶¶ 40, 53; Schmidt Decl., Exs. X,
DD; Borowski Decl. ¶¶ 51, 63). While the number of edits between Kolibabek and Taylor is
different, their titles and level of experience are similar. Defendants argue the conduct is not of
comparable seriousness because Plaintiffs removed more time than Kolibabek and made timecard
modifications beyond three-minute increments. (Def. Br. 15-16; Reply Br. 12-13). There is no
genuine dispute as to the fact that Plaintiffs made modifications of more than three minutes based
on the timecard modification reports. (56.1 ¶ 40; Schmidt Decl. ¶¶ 31, 35, 36, Exs. O, S, T).
However, even recognizing that Plaintiffs’ modifications are quantitatively higher than
Kolibabek’s, the underlying conduct is the same and the comparative seriousness of their conduct
is an issue of fact more properly suited for a jury. Edwards v. Khalil, No. 12-CV-08442, 2016 WL
1312149, at *17 (S.D.N.Y. Mar. 31, 2016) (“The conduct in question does not have to be identical,
but it must be of comparable seriousness”).
Despite having committed the same terminable violation and, upon confrontation, citing
the same explanation of an unofficial three-minute rule, Kolibabek was sent back to work without
19
a formal reprimand while Plaintiffs were terminated. (Kolibabek Aff. ¶ 17). Accordingly, the Court
finds that a reasonable jury could find Plaintiffs were similarly situated to, but treated differently
than, Kolibabek.
Further, the Court finds this evidence of disparate treatment sufficient to create a triable
issue of fact as to Plaintiffs’ discrimination claims under § 1981 even under the heightened burden.
Under § 1981, to “prevail, a plaintiff must initially plead and ultimately prove that, but for race, it
would not have suffered the loss of a legally protected right.” Comcast Corp., 140 S. Ct. at 1019.
Plaintiffs argue that race was the but-for cause of Plaintiffs’ terminations because Russo had
“discriminatory motivation.” (Pl. Br. 26-27). There is no dispute that Russo was disciplined for
her conduct toward Taylor at the FLC, including her comments calling Taylor “the manager from
The Westchester” which Plaintiffs argue is a play on the Jennifer Lopez song, “Jenny from the
Block.” (56.1 Stmt ¶ 14; Pl. Br. 8, n.5). Taylor contends, and Russo denies, that Russo’s behavior
and comments toward Taylor at the FLC was racist and derogatory. (Taylor Dep. Tr. at 163:4-8,
185:3-11, 186:8-12, 189:3-6; Russo Dep. Tr. at 95:18-25) Accordingly, these conflicting accounts
of the nature of Russo’s conduct that led to her receiving a Corrective Action necessitate a
credibility finding best left to a jury. Vital v. Interfaith Med. Ctr., 168 F.3d 615, 622 (2d Cir. 1999)
(“Assessments of credibility and choices between conflicting versions of events are matters for the
jury, not for the court on summary judgment.” (internal quotation marks omitted)).
Defendants’ renewed motion for summary judgment dismissing Plaintiffs’ discrimination
claims is, accordingly, denied.
20
II.
Title VII, Section 1981, and NYSHRL Retaliation Claims
Plaintiffs further bring retaliation claims under Title VII (against Corporate Defendants),
Section 1981(against all Defendants), and NYSHRL (against all Defendants). All three statutes
are likewise analyzed under the McDonnell Douglas framework. See Summa v. Hofstra Univ., 708
F.3d 115, 125 (2d Cir. 2013) (“The burden-shifting framework laid out in McDonnell Douglas . .
. governs retaliation claims under both Title VII and the NYSHRL.”); see also Littlejohn, 795 F.3d
at 315 (“Retaliation claims under Title VII and § 1981 are both analyzed pursuant to Title VII
principles and the McDonnell Douglas burden-shifting evidentiary framework.” (footnote
omitted)).
To make out a prima facie case of retaliation, “a plaintiff must demonstrate that (1) she
engaged in protected activity, (2) the defendant was aware of that activity, (3) she was subjected
to a retaliatory action, or a series of retaliatory actions, that were materially adverse, and (4) there
was a causal connection between the protected activity and the materially adverse action or
actions.” Carr v. New York City Transit Auth., No. 22-792-CV, 2023 WL 5005655, at *5 (2d Cir.
Aug. 7, 2023); see also Rosinski v. Am. Axle & Mfg., Inc., 402 F. App’x 535, 537 (2d Cir. 2010).
Plaintiffs 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.” Id.; see also Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 90-91 (2d Cir. 2015) (“It is not enough that
retaliation was a ‘substantial’ or ‘motivating’ factor in the employer’s decision.”). “This but-for
reason need not be the only cause for the employer’s action; however, the plaintiff must show that
‘the adverse action would not have occurred in the absence of the retaliatory motive.’” D’Andrea
v. Nielsen, 765 F. App’x 602, 605 (2d Cir. 2019). Even under this but-for standard, causation can
be proven either: “(1) indirectly, by showing that the protected activity was followed closely by
21
discriminatory treatment, or through other circumstantial evidence such as disparate treatment of
fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory
animus directed against the plaintiff by the defendant.” Gordon v. N.Y. City Bd. of Educ., 232 F.3d
111, 117 (2d Cir.2000); see also Zann Kwan, 737 F.3d at 845 (“[T]he but-for causation standard
does not alter the plaintiff’s ability to demonstrate causation at the prima facie stage on summary
judgment or at trial indirectly through temporal proximity.”).
Once Plaintiffs have established a prima facie showing of retaliation, the burden then shifts
to Defendants to proffer a legitimate, non-retaliatory reason for the adverse employment action.
Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013). Plaintiff must then
demonstrate that the non-retaliatory reason is a mere pretext for retaliation. Zann Kwan, 737 F.3d
at 845 (2d Cir. 2013).
a. Phase One: Prima Facie Case
Defendants argue that Plaintiffs’ retaliation claims fail at the causation element and they
therefore do not make out a prima facie case of retaliation. (Def. Br. at 25-26). Plaintiffs contend,
however, that they have made out a prima facie case of retaliation based on two theories of
causation. (Pl. Br. 14-15).
i.
Indirect Evidence of Causation Applicable to All Retaliation Claims
First, Plaintiff argues with respect to all three retaliation claims that the record provides
sufficient indirect evidence of causation. (Pl. Br. at 14). Specifically, Plaintiffs argue the temporal
proximity between their complaints about Russo’s purportedly racist comments at the FLC in early
March 2018 and their terminations on March 27 and 28, 2018 is sufficient to establish a causal
connection. (Id.). Defendants do not dispute that the temporal proximity creates an inference of
causation, but argue that the causal connection was broken in mid-March by an intervening
22
event—i.e. discovery that Plaintiffs had falsified employee timecards. (Def. Br. at 25). In any
event, the Court agrees with Defendants that Plaintiffs’ misconduct, discovered during the regular
course of an audit by Sobocinski, constitutes an intervening event that broke the causal connection.
(56.1 Stmt ¶¶ 28-29); see, i.e. Dedewo v. CBS Corp., No. 18-CV-09132, 2022 WL 1031588, at *7
(S.D.N.Y. Apr. 5, 2022) (“Plaintiff . . . fails to establish a causal connection because her own
intervening misconduct severs the chain of causation.”); Rossbach v. Montefiore Med. Ctr., No.
19-CV-05758, 2021 WL 930710, at *7 (S.D.N.Y. Mar. 11, 2021) (“Misconduct by a plaintiff
qualifies as an intervening event that defeats an inference of retaliation.”). Accordingly, temporal
proximity does not suffice to establish causation for the purposes of Plaintiffs’ prima facie
retaliation claims.
However, causation may also be proven by circumstantial evidence of disparate treatment
of fellow employees who engaged in similar conduct. Gordon, 232 F.3d 111, 117 (2d Cir.2000).
As discussed supra, the record shows a genuine issue of fact exists as to whether Kolibabek was
similarly situated to but treated differently than Plaintiffs. Accordingly, causation can be inferred
from Plaintiffs’ indirect evidence that they were subject to disparate treatment. See Song v. Potter,
No. 05-CV-08132, 2008 WL 11411483, at *20 (S.D.N.Y. Feb. 13, 2008), aff’d, 363 F. App’x 96
(2d Cir. 2010) (finding indirect evidence of disparate treatment sufficient to establish a prima facie
case of retaliation.) The Court therefore finds Plaintiffs have established a prima facie case of
retaliation under all three statutes.
ii.
Cat’s Paw Theory of Liability Applicable to Title VII Retaliation
Secondly, even if evidence of disparate treatment of Plaintiffs were not enough to infer
causation, and the Court finds that it is, Plaintiffs additionally argue that they have demonstrated
23
a prima facie claim of retaliation under Title VII based on a cat’s paw 8 theory of liability. (Pl. Br.
at 15-16). The cat’s paw theory is only applicable to Plaintiffs’ retaliation claim under Title VII. 9
Under a “cat’s paw” theory of liability, “the unlawful motive of a non-decision maker is
imputed to the decision maker, and employer, where the non-decision maker has some significant
influence that leads to the adverse employment action.” Vasquez, 835 F.3d at 272 (2d Cir. 2016).
The cat’s paw metaphor “refers to a situation in which an employee is fired by a supervisor who
himself has no [retaliatory] motive, but who has been manipulated by a subordinate who does have
such a motive.” Edwards v. Rochester Inst. Of Tech., 794 F. App’x 65, 67 (2d Cir. 2019). A cat’s
paw theory of liability concerning retaliation is achieved upon a showing that the “employer’s own
negligence [gave] effect to the employee’s animus and cause[d] the victim to suffer an adverse
employment action.” Vasquez, 835 F.3d at 276 (2d Cir. 2016); see also Chery v. Town of Enfield,
No. 19-CV-1592, 2023 WL 362829, at *7 (D. Conn. Jan. 23, 2023) (citing Vasquez, 835 F.3d at
275 (2d Cir. 2016) (a retaliation claim under Title VII is supported when an “employer in effect
adopts an employee’s unlawful animus by acting negligently with respect to the information
provided by the employee, and thereby affords that biased employee an outsize role in its own
employment decision.”) (emphasis in original)); see also Naumovski v. Norris, 934 F.3d 200, 220
(2d Cir. 2019) (“if an employee ‘manipulates an employer into acting as a mere conduit for [her]
8
“The phrase [cat’s paw] derives from an Aesop fable, later put into verse by Jean de La Fontaine, in which
a wily monkey flatters a naïve cat into pulling roasting chestnuts out of a roaring fire for their mutual
satisfaction; the monkey, however, ‘devour[s] . . . them fast,’ leaving the cat ‘with a burnt paw and no
chestnuts’ for its trouble.” Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 271-72 (2d Cir. 2016).
9
Plaintiff has not cited, nor has this Court found, case law establishing that the “cat’s paw” theory of
liability applies to retaliation claims brought under § 1981 and NYSHRL. See Natofsky v. City of New York,
921 F.3d 337, 350 (2d Cir. 2019) (“[n]either the Supreme Court nor this Circuit, however, has addressed
whether the [cat’s paw] theory would apply to statutes requiring plaintiffs to demonstrate that
discriminatory intent was the but-for cause of an adverse employment action”).
24
retaliatory intent,’ the employee’s intent can be imputed to the employer under a ‘negligence’ (i.e.
a ‘knew or should have known’) standard.”).
Plaintiffs essentially argue that Banana Republic was negligent in allowing Russo, an
employee with retaliatory intent, to manipulate Borowski, the decision-maker, into terminating
Plaintiffs. (Pl. Br. at 16). Defendants respond that Russo played no role in the investigation, nor is
there evidence that Banana Republic’s investigation of Plaintiffs’ misconduct was negligent.
(Reply Br. at 7-8).
Here, a reasonable jury could find that Russo was motivated by retaliatory animus to bring
about Plaintiffs’ terminations. Plaintiffs’ complaints about Russo regarding her behavior at the
FLC, which Plaintiffs contend were racial in nature, resulted in Russo being investigated by
Banana Republic’s Human Resources department and issued a Corrective Action less than a month
prior to Plaintiffs’ terminations. (56.1 Stmt ¶¶ 12-14). In fact, Russo testified that she reached out
to Borowski and Schmidt before the investigation started because she “knew that in my position
as her supervisor, knowing that [Taylor] had come forward with concerns regarding me, that I did
not want her to feel—or there to be, like—feel like there was any type of retaliation for coming
with those concerns. So, I knew as a district manager that I did not—I needed to get a partner on,
who needs to conduct this investigation, so there’s no question about, you know, the merits of the
investigation.” (Russo Dep. Tr. 245:23-246:10). Despite this, the record in this case includes
several pieces of evidence that, when viewed in the light most favorable to Plaintiffs, could lead a
reasonable jury to conclude that Banana Republic permitted to Russo to be involved in and have
an effect on the investigations and terminations of Plaintiffs. Specifically, Russo fielded a call from
Taylor immediately after her second audit failure and reported the failure to Borowski (Russo Dep.
Tr. 293:11-294:12; Borowski Decl. ¶ 41; Schmidt Decl. ¶ 58, Ex. PP). Although Russo was not
25
assigned to the investigatory team, Jean-Louis, a person with whom Russo has a personal
relationship, was one of the two designated investigators. 10 (Jean-Louis Dep. Tr. 326:6-8; 56.1
Stmt ¶ 32). Russo was included on multiple calls and email communications regarding the
investigatory teams’ findings. (56.1 Stmt ¶ 33; Borowski Decl. ¶¶ 44, 46, 48, 50-52). Russo was
also present at the Westchester and Vernon Hills Stores when the investigatory team interviewed
Plaintiffs regarding their timecard modifications. (56.1 Stmt ¶¶ 43, 55). Kolibabek accused Russo
of aggressively questioning her about Taylor during her interview. (Kolibabek Aff. ¶ 11). Russo
also participated in the disposition discussions with Jean-Louis, Railey, and Borowski following
their interview of each Plaintiff. (56.1 Stmt ¶¶ 43, 55). Notably, Russo then participated in the
second interview of Taylor following their disposition discussion. (Id. ¶ 51). Russo personally
informed both Taylor and Emanuel of their terminations. (Id. ¶ 51; Jean-Louis Tr. at 343:6-21).
Accordingly, several factual issues remain about the impact of Russo’s participation in the
investigations and terminations of Plaintiffs. A question exists as to what, if any, information
and/or recommendations Russo provided to Borowski while participating in the team calls and
disposition discussions. There is also a dispute over the effect Russo had over the interview process
of Plaintiffs and the other employees such as Kolibabek. Further, a question remains as to how
much judgment was left to Russo, if any, in deciding to terminate Taylor after hearing Taylor’s
explanation at that second interview. The extent to which Russo effected the investigatory process
and influenced Borowski’s termination decisions, if at all, will turn in part on the credibility of
Russo, Jean-Louis, Borowski, and Railey. Such credibility determinations are better suited to a
jury.
10
Russo testified that Jean-Louis was a groomsman in her wedding and that she had recommended JeanLouis for his job at Banana Republic. (Russo Dep. Tr. at 366:11-13; 371:8-10).
26
Drawing all reasonable inferences in Plaintiffs’ favor, as is required at this stage, the
evidence suggests that Banana Republic permitted Russo to have an effect on the investigations
and terminations of Plaintiffs. Because a reasonable jury could also find that Russo was motived
by discriminatory animus, the Court finds this evidence is an additional basis for Plaintiffs’ prima
facie case of retaliation under Title VII.
b. Phases Two and Three: Legitimate, Non-Discriminatory Reason and Pretext
Regarding phase two, the Court finds that Defendants had a legitimate, nondiscriminatory
reason to terminate Plaintiffs, as discussed supra.
With respect to phase three, Plaintiffs much 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. “But-for” causation requires only that the adverse action
would not have occurred in the absence of a retaliatory motive.” Id. at 846. “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. From such discrepancies, a reasonable juror could conclude
that the explanations were a pretext for a prohibited reason.” Id.
The Court has already found that a reasonably jury may find the cat’s paw theory of liability
applicable and determine that but-for Russo’s desire to retaliate and Defendants’ involvement of
Russo in the investigations and terminations, Plaintiffs would not have been terminated.
Additionally, a reasonable jury could infer that the disparate treatment of Kolibabek evidences
inconsistencies in Defendants’ proffered reason for terminating Plaintiffs. Viewing the evidence
in the light most favorable to Plaintiffs, as required on a motion for summary judgment, the
27
evidence is sufficient to deny Defendants’ renewed summary judgment motion as to Plaintiffs’
retaliation claims.
Defendants’ renewed motion for summary judgment dismissing Plaintiffs’ retaliation
claims is, therefore, denied.
III.
NYSHRL Aider and Abettor Liability
The final issue for consideration is Plaintiffs’ fourth claim for relief—aiding and abetting
asserted against Russo, Borowski, and Jean-Louis under the NYSHRL. (FAC ¶¶ 153-57). The
operative provision of the NYSHRL provides, in full:
[i]t shall be an unlawful discriminatory practice for any person to aid, abet, incite,
compel or coerce the doing of any of the acts forbidden under this article, or to
attempt to do so.
N.Y. Exec. Law § 296(6). A claim under this provision requires that the “defendant actually
participated in the alleged discriminatory acts.” Bonterre v. City of New York, No. 18-CV-00745,
2021 WL 4060358, at *7 (S.D.N.Y. Sept. 7, 2021) (internal quotation marks omitted); see also
Malena v. Victoria’s Secret Direct, LLC, 886 F. Supp. 2d 349, 367 (S.D.N.Y. 2012) (“To be liable
under § 296(6), an individual employee need not have supervisory or hiring and firing power, but
must have ‘actually participated in the conduct giving rise to the claim.’” (quoting Feingold, 366
F.3d at 158)).
Plaintiffs argue that Russo, Borowski, and Jean-Louis participated in the conduct giving
rise to Plaintiffs’ discrimination and retaliation claims, including their “hand-in-hand
involvement” in the investigations and terminations of Plaintiffs. (Pl. Br. at 27). Defendants
counter that the aiding and abetting claims against Russo and Jean-Louis must be dismissed
because they played no role in the decision to terminate Plaintiffs. (Def. Br. at 27). There is no
dispute, however, that Jean-Louis was involved in the investigation and made recommendations
28
based on his findings. (Jean-Louis Dep. Tr. at 353:20-354). Additionally, as discussed supra, the
Court finds a genuine issue of fact exists as to Russo’s level of involvement in the investigations
and terminations.
Defendants also argue that the claims of aiding and abetting must be dismissed against all
three because they cannot aid and abet their own alleged violation. (Def. Br. at 27-28). However,
Plaintiffs correctly point out that this argument runs contrary to Second Circuit law. (Pl. Br. at 28);
see Ahmad v. New York City Health & Hosps. Corp., No. 20-CV-0675, 2021 WL 1225875, at *13
(S.D.N.Y. Mar. 31, 2021) (“The Second Circuit has held that a co-worker who actually participates
in the conduct giving rise to a discrimination claim [can] be held liable under the NYSHRL . . .
even where [an individual defendant’s] actions serve as the predicate for the employer’s vicarious
liability, so long as the employer’s conduct has also been found to be discriminatory under the
NYSHRL.”); see also Ulrich v. Soft Drink, Brewery Workers & Delivery Emps., Indus. Emps.,
Warehousemen, Helpers & Miscellaneous Workers, Greater New York & Vicinity, Loc. Union No,.
812, 425 F. Supp. 3d 234, 244 (S.D.N.Y. 2019).
Accordingly, Defendants’ renewed motion for summary judgment is denied with respect
to Plaintiffs’ aiding and abetting claims against the Individual Defendants.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is DENIED. The
parties are directed to meet and confer and comply with Rules 6(A) and 6(B) of the Court’s
Individual Practices (rev. June 23, 2023) by filing the documents required therein, which include
a joint pretrial order, proposed joint voir dire questions, joint requests to charge, joint verdict form,
and motions in limine, on or before September 13, 2023.
29
A pretrial conference has been scheduled for October 26, 2023 at 12:00 p.m. to be held in
Courtroom 520 of the White Plains courthouse.
The Clerk of Court is respectfully requested to terminate the motion sequence pending at
Doc. 178.
SO ORDERED:
Dated: White Plains, New York
August 14, 2023
_______________________________
Philip M. Halpern
United States District Judge
30
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