Grasso v. EMA Design Automation, Inc. et al
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 28 Defendant's Motion for Summary Judgment and dismissing Plaintiff's Complaint in its entirety. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 10/2/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
EMA DESIGN AUTOMATION, INC., and
42 U.S.C. § 1981, and the New York State Human Rights Law against
her former employer, EMA Design Automation, Inc., (“EMA”) and
Emmanuel Marcano (“Marcano”), the President of EMA, claiming that
she was retaliated against for complaining of gender, national
origin, and racial discrimination.
Specifically, Grasso claims
complaining of discrimination and filing administrative complaints
Defendants contend that plaintiff’s employment was terminated
only after her old job was eliminated, and she refused, without
explanation, to accept a new position that was offered to her.
Defendants move for summary judgment claiming that plaintiff has
failed to state a claim of retaliation, or, in the alternative,
discriminatory reason the defendants have offered for terminating
For the reasons set forth below, I grant defendants’ motion
for summary judgment.
The following facts are taken from the Plaintiff’s Amended
Statement of Facts (docket item 28), Plaintiff’s Response to
(docket item 39), and the Court’s review of the entire record.
facts set forth herein are uncontested except where noted.
Plaintiff Brenda Grasso was employed by defendant EMA Design
Automation Inc., from January, 2003 to April, 2011.
sells and maintains design software used by manufacturers to design
and create industrial products such as circuit boards.
Emmanuel Marcano (“Marcano”) is the founder, president, and Chief
Executive Officer of EMA.
Grasso was hired by Marcano in 2003 as a sales representative.
Shortly after being hired, plaintiff became a customer fulfilment
representative, and in 2004, became the manager of licensing and
Marcano’s wife Nancy Marcano (“Mrs. Marcano”), who
currently serves as Vice President of EMA, promoted Grasso to the
managerial position, and in that position, Grasso reported to,
inter alia, Mrs. Marcano.
worker, but often had difficulty getting along with subordinates.
Plaintiff denies that she had difficulty getting along with her coworkers.
According to Mrs. Marcano, in 2006, the director of
operations at EMA, Richard Carley, wanted to fire the plaintiff
Mrs. Marcano, however, refused to approve firing the plaintiff.
In 2010, the plaintiff became involved in an e-mail exchange
with a subordinate.
Marcano became aware of the exchange, and
face-to-face meeting with the employee to amicably resolve the
matter. According to the plaintiff, there was nothing discourteous
or inappropriate in her communications with the employee, and
Grasso requested a meeting with Marcano to discuss the matter.
On April 19, 2010, Marcano, along with Mrs. Marcano, held a
meeting with Grasso in his office.
According to the plaintiff,
Marcano became belligerent during the meeting, and accused Grasso
of being “too emotional” as a result of her Puerto Rican heritage
and being raised in a Puerto Rican household.
It is undisputed
that Marcano is also of Puerto Rican heritage.
According to the
plaintiff, Marcano yelled at her, pounded on his desk, pointed at
her, belittled her, and refused to allow her to leave the meeting.
The plaintiff claims that she told Marcano that she believed he was
She further told Marcano that she could not work
under the conditions then present at EMA, and that she would be
looking for employment elsewhere.
Although plaintiff contends that she informed Marcano that she
felt like she was being harassed because she was a woman, she did
not pursue any such claims internally, and indeed, in a November 9,
2010 e-mail provided to EMA’s attorney, did not claim that she felt
as though she was being, or had been, subjected to harassment
based on her gender, race, or national origin.
The e-mail was in
follow up to a meeting with the defendant’s attorney which was
conducted as part of an investigation requested by the defendants
to determine if plaintiff had been unlawfully harassed.
After the April 19, 2010 meeting, plaintiff alleges that the
defendants began scrutinizing her more closely, prevented her from
earning commissions, and removed duties from her position.
defendant’s deny these claims, and contend that no adverse action
of any type was taken against the plaintiff on any level.
in November, 2010 plaintiff indicated to the defendant’s attorney
that she did not feel she was being harassed at that time.
On November 22, 2010, Mrs. Marcano held a meeting with the
plaintiff and informed the plaintiff that several employees, as
they had in the past, were continuing to complain about Grasso’s
demeanor and behavior at work. Grasso did not believe that the
complaints were warranted. Mrs. Marcano issued a verbal warning to
the plaintiff, which was memorialized in a written record.
co-employee to a hospital emergency room suffering from a panic
attack, which Grasso claims was caused by her working environment.
On December 2, 2010, plaintiff’s psychiatrist recommended that
plaintiff not return to work until anti-depressive medications
began to take effect.
Plaintiff never returned to work after
November 30, 2010.
discrimination with the New York State Division of Human Rights.
On February 18, 2011, she was released by her doctor to return to
work, and on February 21, 2011, Grasso e-mailed Mrs. Marcano to
inform her that she was able to return to work on a part-time
In response to plaintiff’s e-mail, EMA, through counsel,
sent Grasso a letter stating that her position had been eliminated,
and that EMA would consider offering her a severance package and
not oppose her application for unemployment benefits in return for
a release of any claims by the plaintiff.
Although the letter
severance and not oppose any attempt by her to obtain unemployment
termination notice, but was merely a letter informing plaintiff
that her job had been eliminated.
Plaintiff did not accept the severance package offered by EMA,
and she remained employed by EMA through April 13, 2011. In March,
2011, EMA’s counsel informed Grasso that the February 25, 2011
letter was not a termination notice, but instead, was simply a
notice of the elimination of her position.
According to the
defendants, Marcano was attempting to identify a new position for
the plaintiff, one which would not require as much interaction with
co-employees as her previous job.
To that end, in early April,
2011, EMA offered plaintiff the position of Applications Engineer
effective April 11, 2011. The offer was made weeks after plaintiff
filed a second administrative charge of discrimination.
however, did not respond to the offer, and did not appear for work
on April 11.
Two days later, on April 13, 2011, EMA terminated
plaintiff’s employment with the company.
Standard of Review
Summary Judgment Standard
Rule 56(a) of the Federal Rules of Civil Procedure provides
demonstrates “that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law."
When considering a motion for summary judgment, all genuinely
disputed facts must be resolved in favor of the party against whom
summary judgment is sought. Tolan v. Cotton,
S. Ct. 1861, 1863 (2014) .
If, after considering the evidence in
the light most favorable to the nonmoving party, the court finds
that no rational jury could find in favor of that party, a grant of
summary judgment is appropriate.
Scott v. Harris, 550 U.S. 372,
380 (2007)(citing Matsushita Elec. Industrial Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-587 (1986)).
Claims of retaliation brought pursuant to Title VII are
reviewed under the burden-shifting approach set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Kwan v. Andalex Grp.
LLC, 737 F.3d 834, 843 (2d Cir.2013). “Under the first step of the
McDonnell Douglas framework, the plaintiff must establish a prima
protected activity’; 2) the defendant's knowledge of the protected
activity; 3) ‘an adverse employment action’; and 4) ‘a causal
employment action.’” Id. at 844; Henry v. Metro. Transp. Auth.,
plaintiff meets this burden, the defendant employer must then
articulate a legitimate, nondiscriminatory reason for its adverse
employment action.” Id. (quoting Tepperwien v. Energy Nuclear
Operations, Inc., 663 F.3d 556, 568 n. 6 (2d Cir.2011)).
defendant is able to set forth a legitimate, non-discriminatory
reason for taking adverse action, the plaintiff must then rebut the
retaliation was the “but-for” cause of the adverse action.
2014 WL 4783014 at *18 (citing Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 133 S.Ct. 2517, 2534 (2013).
“‘[B]ut-for’ causation does
not require proof that retaliation was the only cause of the
employer's action, but only that the adverse action would not have
occurred in the absence of the retaliatory motive.” Kwan, 737 F.3d
Plaintiff has Failed to State a Claim for Retaliation
under Title VII.
Plaintiff contends that she was retaliated against by the
defendants for having engaged in protected activity under Title
Specifically, she claims that EMA eliminated her position,
and terminated her employment in retaliation for her filing an
termination of her employment was made final after she filed a
second administrative complaint of discrimination in March, 2011.
See Plaintiff’s Counterstatement of Facts at ¶ 36
harassment in April, June, and November 2010.
Counterstatement of Facts at ¶¶ 15, 24, 26.
With respect to her claims that she was retaliated against
after complaining of harassment in April, June, and November, 2010,
I find that plaintiff has failed to state a prima facie case of
Although she claims that she engaged in protected
ethnicity and/or national origin, there is no evidence in the
record to support such a claim.
With respect to the April 19, 2010
meeting in which she allegedly told Marcano for the first time in
her seven-year career at EMA that she was being harassed on the
basis of her gender or national origin or ethnicity, the facts,
when viewed in the light most favorable to the plaintiff, do not
establish that she was engaging in protected activity at that time.
It is undisputed that the April 19, 2010 meeting was held because
Marcano believed that Grasso had been insubordinate towards him in
an earlier e-mail exchange.
Defendant’s Statement of Facts at
¶ 35. During the meeting, Grasso allegedly asked Marcano if he
would “treat a man this way.”
Facts at ¶ 18.
Plaintiff’s Counterstatement of
Such a rhetorical question, however, fails to
establish that she engaged in the protected activity of opposing
See Brummell v. Webster Cent. Sch. Dist.,
06-CV-6437, 2009 WL 232789 at *5 (W.D.N.Y. Jan. 29, 2009)(Telesca,
J.) (“Absent a claim of unlawful discrimination, general complaints
about employment concerns do not constitute protected activity
under Title VII.”).
In this case, viewing the evidence in the
light most favorable to the plaintiff, there is no allegation that
she ever complained of being treated differently on the basis of
It is undisputed that she never told Marcano or any
other person that she felt she was being discriminated against on
the basis of any protected category.
While Grasso may have
complained to Marcano that she felt was being harassed during the
April 19, 2010 meeting, she never claimed that she was being
harassed because she was a woman, or Puerto Rican, or a member of
believed that Marcano treated her differently then men, or treated
her differently because of the Puerto Rican heritage that both she
and Marcano shared, she never complained (as required to state a
claim for retaliation) of such conduct in terms that would have put
discriminated against because of her gender, national origin, or
See Brummell, 2009 WL 232789 at *6 (although a plaintiff
need not explicitly allege a violation of Title VII for his or her
complaint to be considered protected activity, the plaintiff “must
complain of discrimination in sufficiently specific terms so that
the employer is put on notice that the plaintiff believes he or she
is being discriminated against on the basis of race, gender,
national origin, or any other characteristic protected by Title
Similarly, with respect to her claim that she complained of
harassment in a June, 2010 with Mrs. Marcano, it is undisputed that
plaintiff could not recall whether or not she complained that the
harassment occurred because of her gender, race, or national
Defendant’s Statement of Facts at ¶ 101.
With respect to
her November 9, 2010 correspondence with the defendants’ attorney,
who was investigating plaintiff’s claim of harassment, plaintiff
never claimed that she had ever complained to the defendants of
Summary Judgment)(Docket item no. 39-5 at p. 38).
Rather, in her
November 9, 2010 e-mail, Grasso reiterated that she felt harassed,
demeaned, and belittled during the April 2010 meeting, but never
alleged that she felt she had been discriminated against on the
basis of her gender, race or ethnicity, and never alleged that she
had ever complained that she was being unlawfully discriminated
complained of harassment in April, June, and November 2010 fail to
establish that she engaged in protected activity, I find that
plaintiff has failed to state a claim of retaliation based on her
complaints of harassment.
eliminated days after she filed an administrative complaint of
discrimination, and then had her employment finally terminated
after filing a second administrative complaint of discrimination,
such allegations state a prima facie case of discrimination. It is
without question that adverse employment action against an employee
that occurs shortly after that employee has engaged in protected
activity creates an inference of retaliation. El Sayed v. Hilton
Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010)(“temporal proximity
of events may give rise to an inference of retaliation for the
purposes of establishing a prima facie case of retaliation under
Title VII . . . .”).
Because the plaintiff has stated a prima
facie case of retaliation, it is the defendant’s burden to proffer
a legitimate, non-discriminatory reason for taking adverse action
against an employee.
In the instant case, the defendant has stated a legitimate,
eliminating plaintiff’s previous position, and terminating her
With respect to the defendants’ decision to eliminate
plaintiff’s position, it is uncontroverted that in 2010, EMA was
suffering a signifiacnt downturn in business, and that its revenues
had declined sharply.
Grasso was well aware of the decline in
revenue, and was aware that the defendants were attempting to cut
costs by eliminating positions.
Indeed, Grasso herself identified
severance. It is further uncontroverted that from 2009 through
2010, EMA reduced the number of its employees by almost 25 percent.
defendants, after the plaintiff took leave in December, 2010 and
had not returned, EMA determined that it could function efficiently
without the plaintiff’s position, and decided to eliminate the
With respect to defendants’ decision to terminate plaintiff’s
employment in April, 2011, it is uncontroverted that the defendants
had offered plaintiff a new position in the company--that of
Applications Engineer--a position that the plaintiff herself had
been interested in when she was first hired in 2003. Defendants
Statement of Facts at ¶¶ 89, 14.
It is further uncontroverted that
plaintiff declined to accept the new position by failing to report
Once the plaintiff failed to report to work, the
defendants terminated her employment.
The reasons stated by the defendants for first eliminating
plaintiff’s position and then terminating her employment state
employment action against her.
The defendants have stated that
when they decided to eliminate the plaintiff’s position, they were
experiencing financial stress, had already eliminated almost a
quarter of its workforce, and had determined that the company could
operate efficiently without the plaintiff’s position. With respect
to plaintiff’s termination, the defendants contend that she was
terminated when she failed to accept the new position that was
offered to her.
Once a defendant has stated a legitimate, non discriminatory
reason for taking adverse employment action, the plaintiff must
pretextual, and that the motivating, or “but-for” cause of the
adverse action was retaliation for engaging in protected activity.
To rebut a legitimate, non-discriminatory reason offered for taking
adverse employment action, a plaintiff must present evidence that
employer” or that “the employer’s proffered explanation is unworthy
See Tyler v. Bethlehem Steel Corp., 958 F.2d 1176
(2nd Cir. 1992)(citations omitted). In doing so, a plaintiff may not
simply rely on “some” evidence of pretext, but instead, must
produce “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].” Woroski v. Nashua Corp.,
31 F.3d 105, 110 (2nd Cir. 1994).
defendant’s proffered reason for eliminating her position, and then
terminating her employment.
Although she claims that the two acts
closely followed her making formal complaints of discrimination,
temporal proximity alone “is insufficient to satisfy [plaintiff]'s
plaintiff must come forward with some evidence of pretext in order
to raise a triable issue of fact.”
El Sayed, 627 F.3d at 933.
Grasso has not produced any evidence from which a trier of fact
could conclude that the defendant’s reasons for taking it actions
were pretextual, and that the defendants would not have taken such
complaints of discrimination.
There is simply no evidence of a
retaliatory animus, and no evidence that the reasons stated by the
defendants are not worthy of belief. It is uncontroverted that EMA
suffered a significant loss in revenues and made drastic cuts to
its workforce in 2009 and 2010.
It is further uncontroverted that
Because plaintiff has failed to rebut the
defendants’ proffered reasons by presenting any evidence that the
defendants’ explanation is pretextual or not worthy of belief, I
grant defendants’ motion for summary judgment.
III. Plaintiff has failed to state a claim under Section 1981.
42 U.S.C. § 1981 provides in relevant part that: “All persons
within the jurisdiction of the United States shall have the same
right in every State and Territory to make and enforce contracts .
. . as is enjoyed by white citizens . . . .” 42 U.S.C.A. § 1981
To state a claim under § 1981, “a plaintiff must allege
facts in support of the following elements: (1) the plaintiff is a
member of a racial minority; (2) an intent to discriminate on the
concerned one or more of the activities enumerated in the statute
. . . .”
Mian v. Donaldson, Lufkin & Jenrette Securities, 7 F.3d
1085 (2nd Cir. 1993) (citation omitted).
“Essential to an action
under section 1981 are allegations that the defendants’ acts were
purposefully discriminatory and racially motivated.”
Caravano, 851 F.2d 561, 571 (2nd Cir. 1988) (citations omitted).
In the instant case, plaintiff fails to identify her race. In
her Complaint, she identifies herself only as “a Puerto Rican
female.” (Amended Complaint at ¶ 7, Plaintiff’s Counterstatement of
facts at ¶ 1.).
Accordingly, she has failed to establish that she
is a member of a racial minority, and has thus failed to state a
claim under Section 1981.
To the extent that plaintiff alleges
that she was discriminated against on the basis of her Puerto Rican
heritage, it is well settled that national origin discrimination is
not addressed by 42 U.S.C. § 1981.
Anderson v. Conboy, 156 F.3d
167, 170 (2nd Cir., 1998)(“It is also settled that Section 1981 does
not prohibit discrimination on the basis of . . . national origin
. . . .)(citing Saint Francis College v. Al-Khazraji, 481 U.S. 604,
Accordingly, I find that plaintiff has failed to
state a claim for racial discrimination under Section 1981.
State Law Claims
Plaintiff alleges that she was retaliated against on the basis
of her gender and national origin in violation of New York state
law. Claims brought under the New York Human Rights Law, are
analytically identical to claims brought under Title VII. Van Zant
v. KLM Royal Dutch Airlines, 80 F.3d 708 (2d Cir. 1996).
Haywood v. Heritage Christian Home, Inc., 977 F.Supp. 611, 613
(W.D.N.Y. 1997)(Larimer, C.J.)(noting that both claims are governed
by McDonnell Douglas standard.]).
Accordingly, for the reasons
stated above, plaintiff’s state law claims under the Human Rights
Law are dismissed.
For the reasons set forth above, I grant defendants’ motion
for summary judgment and dismiss plaintiff’s complaint in its
ALL OF THE ABOVE IS SO ORDERED.
S/ Michael A. Telesca
Michael A. Telesca
United States District Judge
Rochester, New York
October 2, 2014
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