Opinion
20-CV-10019 (VEC)(SN)
08-23-2022
THE HONORABLE VALERIE E. CAPRONI
REPORT AND RECOMMENDATION
SARAH NETBURN, UNITED STATES MAGISTRATE JUDGE.
Ivan To Man Pang (“Plaintiff”) sues Cushman & Wakefield U.S., Inc. (“C&W”), Anthony Ye (“Ye”), William Carley (“Carley), and Renae Stokke (“Stokke”), alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq., the New York State Human Rights Law (“NYSHRL”), New York Executive Law §§ 290 et seq., and the New York City Human Rights Law, New York City Administrative Code §§ 8-101 et seq. Defendants move for summary judgment, and Plaintiff cross-moves. ECF Nos. 87 & 97. I recommend that the Court GRANT Defendants' motion for summary judgment and DENY Plaintiff's crossmotion for summary judgment.
BACKGROUND
I. Factual Background
Plaintiff identifies his national origin as Asian, of Chinese heritage. ECF No. 105, Defendants' Rule 56.1 Statement (“Def. 56.1”) ¶ 35.He was 56 years old at the time of his deposition. Id. Plaintiff applied for the Senior Accountant position at C&W in 2013 and was interviewed by Ye and Patricia Laverty in January or February of 2014. Id. at ¶ 4. Ye had input in the decision to hire Plaintiff and served as his supervisor. Id. at ¶¶ 5, 12. Ye identifies his national origin as Asian, of Chinese heritage, and he was 38 years old as of the time of his deposition. Id. at ¶ 36. Ye reported to Carley, the Director of Finance for C&W's Citigroup Account, who was 67 years old at the time of his deposition. Id. at ¶¶ 18, 37.
Citations to “Def. 56.1” refer to ECF No. 105, which collates Defendants' counterstatement of facts and Plaintiff's responses to each statement. Citations to “Pl. 56.1” refer to ECF No. 103, which collates Plaintiff's initial Rule 56.1 Statement in support of his motion for summary judgment and Defendants' responses to each statement.
Plaintiff alleges in his briefing that Carley is white, but his racial identity is not explicitly discussed in either parties' Rule 56.1 statements.
Plaintiff began his employment in March 2014, initially earning an annual salary of $75,000. Id. at ¶¶ 6-7. In his role as Senior Accountant, Plaintiff was responsible for managing expenses and invoices related to Citigroup's locations. Id. at ¶ 13. He also was responsible for ensuring that books and financial accounts were in accordance with accounting standards, preparing and assisting with cash management, accounts payable and receivable, fixed assets, accruals, and reconciliations, and entering payroll, monthly charges, and allocation vendor discounts. Id. at ¶ 14.
Plaintiff first objected to his salary 2014, when he complained to Ye that fellow Senior Accountant Winnie Huynh earned $5,000 more. Id. at ¶ 72. Ye responded that he did not have the ability to raise Plaintiff's salary. Id. at ¶ 73.
Ye issued Plaintiff's performance evaluations from 2014-2017. Id. at ¶ 55. In 2014, Plaintiff received a rating of “Good Performer” with a four to five percent salary increase and bonus, but Ye made some comments regarding the accuracy of Plaintiff's work. Id. at ¶ 56. In 2015 and 2016, Ye rated Plaintiff's performance as “Good Performer Plus,” and Plaintiff received a salary increase and bonus accordingly. Id. at ¶ ¶ 59, 61. In 2017, Plaintiff received a rating of “Very Good Performance.” Id. at ¶ 66.
On March 16, 2015, Defendants issued Plaintiff a warning letter related to inappropriate communications by email with coworker Jeffrey Bygonaise. Id. at ¶ 58. Bygonaise and Plaintiff had engaged in an extended email correspondence about an assignment that Bygonaise was struggling with. In a final email to Plaintiff explaining that he had identified a work-around for the problem, Bygonaise wrote: “I hope this is what you are asking for. I am more than happy to take on these responsibilities and I will do them with the highest accuracy, but I need to be trained when I am given something for the first time. Trial by fire does not seem to be working for anyone.” See ECF No. 90, Ex. 36. Plaintiff responded: “I gave you the brief instruction to follow. If you don't understand anything, you should ask someone who can help or pick up the phone to call me. I'm not your babysitter and I have work to do.” Id.
In June 2018, Ye forwarded to Plaintiff and Huynh an email about an opening for a managerial position. Def. 56.1 ¶ 67. Plaintiff expressed interest, and so Ye emailed Laverty to recommend him and forwarded his resume. Id. at ¶ 68.
In November 2018, Christine Baynes, who previously worked for C&W as a Field Coordinator (a non-exempt position) on the facilities/operations side of the Citigroup Account, was transferred to an exempt Junior Accountant position on the Financial Department team. Id. at ¶ 75. Carley and Ye concluded that her salary of $47,739 was below market level for her position and requested a $10,000 increase in her base salary. Id. at ¶¶ 76, 80. Plaintiff learned this information because he was responsible for uploading his team's payroll data into C&W's accounting software. Id. at ¶ 77. He then used the payroll data to prepare a chart of the salaries of all Financial Department members and met with Ye and Carley to request an additional raise. Id. at ¶¶ 78, 82. Ye and Carley responded that Baynes's raise was necessary to bring her to a market appropriate salary, but that Plaintiff, who earned $84,820 in 2018, was already paid at market. Id. at ¶¶ 81, 83. Plaintiff's request for a raise was denied. Id.
On November 28, 2018, Plaintiff contacted Donna Lanciers, a Human Resources Manager, asking for a meeting and a transfer. Id. at ¶ 86. Plaintiff told Lanciers that he wanted to transfer because he felt his work was not appreciated but did not express his feeling that he had been unfairly compensated because of his national origin, race, gender, or age. Id. at ¶ 88. Lanciers suggested that Plaintiff apply for other positions via C&W's intranet, send her his resume, and follow up to discuss other positions within the company. Id.
The parties dispute what exactly happened next. Defendants contend that after the meeting, Plaintiff refused to perform certain tasks, started making errors, and told Ye to assign tasks to Baynes instead of him. Id. at ¶¶ 91-93. Plaintiff denies this. Id.
On March 14, 2019, Ye and Carley met with Plaintiff to review his 2018 performance evaluation. Id. at ¶ 94. Plaintiff was rated as “Needs Improvement.” Id. at ¶ 95; see also ECF No. 90, Ex. 22. As a result, he did not receive an annual salary increase and received only 50% of his projected bonus. Def. 56.1 ¶ 100.
Plaintiff then contacted Lanciers to dispute the evaluation. Id. at ¶ 101. Lanciers stated that the information Plaintiff provided did not indicate that Ye and Carley had behaved unfairly, but that he could escalate the matter to Laura Sheehan, Director of Human Resources. Id. at ¶ 102.
On April 4, 2019, Plaintiff sent an email to Sheehan, copying more than 40 other recipients, objecting to his performance evaluation, claiming that Ye and Carley's accusations of poor job performance were untrue, and complaining about additional work assignments. Id. at ¶¶ 103-04; see also ECF No. 90, Ex. 20. Plaintiff did not state that he felt he was discriminated against because of his race, national origin, gender or age. Def. 56.1 ¶ 105. As a result of his email, Stokke, the Employee Relations Senior Manager, conducted a formal investigation. Id. at ¶ 106. After interviewing Plaintiff, Ye, Carley, and Lanciers, Stokke concluded that Plaintiff had not been treated unfairly and recommended that Defendants provide him with a Memorandum of Expectations (“MOE”) to outline expectations for his performance. Id. at ¶ 117.
On April 29, 2019, Plaintiff met with HR Business Partner Scott Snow, Ye, and Carley to review the MOE. Id. at ¶ 119. When Plaintiff objected to the MOE, he was told that if he did not sign it, he would not be permitted to return to work. Id. at ¶ 125. Plaintiff refused to sign and was briefly suspended, although the parties contest the length of the suspension. Id.
On May 1, 2019, Plaintiff emailed Snow and Sheehan, stating:
I feel I am treated unfairly for last 5 years. I may think this would be related to my gender or race. I am the only Male Asian on the team.... I felt that some people (especially they're white and female) delay on the tasks has no issues but I was given to finish them in few days for someone's two months works while I have to finish my jobs I'm sure you can find those people are white and female get increase faster and bonus more but workload wasn't that much.ECF No. 90, Ex. 27. Plaintiff also claimed that Carley had once, in reference to a young, white, female coworker, asked him: “Don't you enjoy working with a beautiful young lady?” Id.
Plaintiff's complaint was immediately escalated to Kifi Haque, the Head of North America Employee Relations, for investigation. Def. 56.1 ¶ 128. Haque met with Plaintiff, discussed his complaints, and offered him severance if he chose to resign. Id. at ¶¶ 129-30. Haque also informed Plaintiff that a new MOE would be created. Id. at ¶ 131. The MOE was provided to Plaintiff on May 17, 2019, but he was not satisfied with the revisions. Id. at ¶¶ 135, 137.
On May 28, 2019, Plaintiff sent two emails to his personal email address, attaching assignments completed for the Citigroup account in November 2018 and December 2018 to “fight his case.” Id. at ¶¶ 145-47. Citigroup's Content Monitoring Program immediately flagged the emails for Plaintiff and Ye as containing “Confidential Personally Identifiable Information” (PII). Id. at ¶ 149. In a subsequent meeting with Snow, Carley, and Ye, Plaintiff admitted sending the emails, but denied that they contained any PII. Id. at ¶¶ 154-55. He was placed on paid administrative leave and, after Defendants had confirmed that the email attachments contained PII, was terminated on May 31, 2019. Id. at ¶¶ 156-58.
II. Procedural Background
Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) on June 4, 2019. Def. 56.1 ¶ 162. On September 3, 2020, the EEOC sent Plaintiff a Notice of Dismissal and Right to Sue letter. Id. at ¶ 163. Plaintiff commenced this action on November 27, 2020. ECF No. 1. After extensive discovery, Defendants moved for summary judgment. ECF No. 87. Plaintiff cross-moved for summary judgment. ECF No. 97. Judge Nathan, then presiding, referred the motions to me for a report and recommendation. ECF No. 93.
DISCUSSION
I. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, the 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 dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of establishing that no genuine issue of fact exists. Id. at 256-57; see Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim.” Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Celotex, 477 U.S. at 322-23).
Then, “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” Simsbury-Avon Pres. Club, Inc. v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir. 2009). The non-moving party must cite to “particular parts of materials in the record” or demonstrate “that the materials cited [by the movant] do not establish the absence . . . of a genuine dispute” as to a material fact. Fed.R.Civ.P. 56(c)(1); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (“When a motion for summary judgment is properly supported by documents or other evidentiary materials, the party opposing summary judgment may not merely rest on the allegations or denials of his pleadings . . . “). The non-moving party must produce more than a “scintilla of evidence,” Anderson, 477 U.S. at 252, and “may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible . . .” Ying Jan Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993). See also Flores v. United States, 885 F.3d 119, 122 (2d Cir. 2018) (“[C]onclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment.” (quoting Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996))).
In ruling on a motion for summary judgment, the Court must “resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004). When both sides have moved for summary judgment, the district court is “required to assess each motion on its own merits and to view the evidence in the light most favorable to the party opposing the motion, drawing all reasonable inferences in favor of that party.” Wachovia Bank, Nat'l Ass'n v. VCG Special Opportunities Master Fund, Ltd., 661 F.3d 164, 171 (2d Cir. 2011).
II. Race, National Origin, and Sex Discrimination Claims
A. Legal Standard
Title VII provides that it is “an unlawful employment practice for an employer to . . . discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of [his] race, . . . sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). “At the summary judgment stage, Title VII discrimination claims are governed by the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).” Philpott v. State Univ. of N.Y., 805 Fed.Appx. 32, 34 (2d Cir. 2020). To establish a prima facie case of discrimination under both Title VII and the NYSHRL, plaintiff must show: “(1) he belonged to a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.” Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012) (internal quotation marks omitted). “An inference of discrimination can arise from a variety of circumstances, ‘including, but not limited to, the employer's criticism of the plaintiff's performance in . . . degrading terms [based on her protected characteristic]; 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 plaintiff's discharge.'” Pustilnik v. Battery Park City Auth., No. 18-cv-9446 (RA), 2019 WL 6498711, at *4 (S.D.N.Y. Dec. 3, 2019) (quoting Littlejohn v. City of New York, 795 F.3d 297, 312 (2d Cir. 2015)).
If plaintiff establishes a prima facie case, then “the burden shifts to the defendant to articulate ‘some legitimate, non-discriminatory reason'” for its action. Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008) (quoting McDonnell Douglas, 411 U.S. at 802). If defendant provides a “legitimate, nondiscriminatory business rationale for its conduct,” then “‘to defeat summary judgment . . . the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination.'” Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004) (quoting Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997)).
“Because NYSHRL claims are subject to the same standard as Title VII claims, [the Court] will consider them together, except [if] otherwise noted.” Salazar v. Ferrera Bros. Bldg. Materials Corp., No. 13-cv-3038 (JG)(VMS), 2015 WL 1535698, at *5 (E.D.N.Y. Apr. 6, 2015). “NYCHRL claims, on the other hand, are reviewed ‘independently from and more liberally than their federal and state counterparts.'” LaSalle v. City of N.Y., No. 13-cv-5109 (PAC), 2015 WL 1442376, at *3 (S.D.N.Y. Mar. 30, 2015) (quoting Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009)).
The Second Circuit has instructed that, in accordance with the directive of the New York City Council, NYCHRL claims should be “construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013). Courts assess NYCHRL discrimination claims under the McDonnell Douglas framework. Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 75-76 (2d Cir. 2015). If plaintiff establishes a prima facie case and defendant proffers legitimate reasons for its actions, “summary judgment is appropriate if ‘the record establishes as a matter of law' that discrimination or retaliation ‘play[ed] no role' in the defendant's actions.” Id. at 76 (quoting Mihalik, 715 F.3d at 110 n.8).
B. Analysis
1. Title VII and NYSHRL Claims
a. Prima Facie Case
Arguably, Plaintiff has failed to establish a prima facie case of discrimination under Title VII and the NYSHRL. It is uncontested that Plaintiff is a member of a protected class and he was qualified for his position. Defendants also do not contest that Plaintiff's compensation, 2018 Performance Evaluation, and termination could constitute adverse employment actions. See ECF No. 88 Defendants' Memorandum of Law (“Def. Mem.”) 3-4; see also Chung v. City Univ. of N.Y., 605 Fed.Appx. 20, 22 (2d Cir. 2015) (defining an adverse employment action as a “materially adverse change in the terms and conditions of employment” and citing examples including “termination of employment, a demotion evidenced by a decrease in wage or salary, . . . [or] a material loss of benefits”).
Plaintiff also claims that the following events constitute adverse employment actions: (1) “discriminatory wording” in his year-end performance reviews, (2) the 2015 warning letter, (3) his coverage of additional work responsibilities, (4) C&W's failure to support his transfer to another job, (5) inappropriate handling of the investigations of his HR complaints, (6) failure to consider for a promotion, (7) his placement on a MOE, and (8) his suspension when he did not sign the MOE. See ECF No. 99 Plaintiff's Memorandum of Law (“Pl. Mem.”) 8-9.
While the failure to promote is an adverse employment action for purposes of an employment discrimination claim, Barella v. Vill. of Freeport, 16 F.Supp.3d 144, 162 (E.D.N.Y. 2014), the remaining events cannot be considered adverse employment actions. First, Plaintiff, contends that remarks in his 2014 and 2015 evaluations were “discriminatory.” Pl. Mem. 8. However, these comments describe his job performance and do not make reference to any protected characteristic. For example, Defendant Ye wrote in the 2014 evaluation that “accuracy was an issue at times” and “reconciling the data can be an issue,” but also noted that Plaintiff was “[o]verall . . . a good performer.” ECF No. 103, Plaintiff's Rule 56.1 Statement (“Pl. 56.1”) ¶ 205. Regardless of the content of the evaluations, these reviews did not affect his compensation, benefits, or job title, and so cannot constitute an adverse employment action. Kunik v. N.Y.C. Dep't of Educ., 842 Fed.Appx. 668, 672 (2d Cir. 2021). Second, for similar reasons, the 2015 warning letter is not an adverse employment action. Blake v. Potter, No. 03-cv-7733 (LAP), 2007 WL 2815637, at *6 (S.D.N.Y. Sept. 25, 2007) (“[C]ourts in this District and elsewhere have held that a single letter of warning from an employer, without any subsequent adverse consequence, is not ‘an adverse employment action.'”) (collecting cases).
Third, Plaintiff alleges that being asked to cover the work responsibilities of a coworker on medical leave represents an adverse employment action. Pl. 56.1 ¶¶ 239-244. But “[b]eing asked occasionally to perform work outside one's stated responsibilities is not an adverse employment action.” Mitchell v. Metro. Transit Auth. Cap. Constr. Corp., No. 16-cv-3534 (KPF), 2018 WL 3442895, at *14 (S.D.N.Y. July 17, 2018).
Fourth, the Court of Appeals has held that the denial of a transfer does not constitute an adverse employment action unless it creates “a materially significant disadvantage in [the Plaintiff's] working conditions.” Williams v. R.H. Donnelley Corp., 368 F.3d 123, 128 (2d Cir. 2004). Furthermore, following a meeting with Lanciers, Plaintiff did not follow through on instructions on how to pursue an internal transfer, and so there is no evidence that C&W actively prevented Plaintiff from transferring. Pl. 56.1 ¶¶ 80-90; Def. 56.1 ¶¶ 86-90. See Loth v. City of New York, No. 20-cv-9345 (GBD), 2021 WL 4311569, at *8 (S.D.N.Y. Sept. 21, 2021) (“Plaintiff fails to allege that she had any interest in, or made any attempt to pursue the subject position, which the employer prevented.”).
Fifth, although Plaintiff argues that C&W's investigations into his complaints were inadequate, courts in this District have held that the failure to investigate a discrimination claim is not an adverse employment action. Price v. Cushman & Wakefield Inc., 808 F.Supp.2d 670, 690 (S.D.N.Y. 2011); Daniel v. ABM Indus., No. 16-cv-1300 (RA), 2017 WL 1216594, at *9 (S.D.N.Y. Mar. 31, 2017)
Sixth, the MOE was designed to improve his performance, and “placement on a [performance improvement plan], without more, does not constitute an adverse employment action.” Kalola v. Int'l Bus. Mach. Corp., No. 13-cv-7339 (VB)(LMS), 2017 WL 3394115, at *9 (Feb. 28, 2017) (collecting cases), rep. & rec. adopted 2017 WL 3381896 (S.D.N.Y. Aug. 4, 2017). Although Plaintiff claims that the intention of the MOE was to terminate his employment, he does not cite to any admissible evidence in support of that contention. See Def. 56.1 ¶ 124.
Seventh, although Snow initially told Plaintiff he would be suspended if he failed to sign the MOE, he later clarified that he was permitted to return to work if he agreed to comply with the terms of the agreement. Pl. 56.1 ¶ 176; see also Pang Decl. Ex. 87. Regardless, Plaintiff admits he was paid during his brief suspension. ECF No. 90, Ex. 1 Deposition of Ivan To Man Pang (“Pl. Dep”) 227:14-18. SeeKalola, 2017 WL 3394115, at *9 (no adverse employment action following placement on a performance improvement plan where plaintiff's salary, benefits, and seniority level remained the same and he could not identify “a single, objective, concrete harm” as result of his placement on the plan); see also Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006) (placement on paid administrative leave not an adverse employment action).
Therefore, Plaintiff has alleged only four possible adverse employment actions: (1) his compensation, (2) Defendants' failure to promote him in June 2018, (3) his 2018 performance evaluation, and (4) his termination. None of these adverse employment actions, however, occurred under circumstances giving rise to an inference of discrimination.
First, as Defendants correctly argue, Defendant Ye, who was directly involved in the four alleged adverse employment actions, also identifies as Asian, undermining any inference of discrimination. See Walder v. White Plains Bd. of Educ., 738 F.Supp.2d 483, 501 (S.D.N.Y. 2010) (collecting cases); see also Eder v. City of New York, No. 06-cv-13013 (RWS), 2009 WL 362706, at *8 (S.D.N.Y. Feb. 12, 2009) (reasoning that because plaintiff's immediate supervisor “who assessed Plaintiff's performance and determined that it was lacking, are members of the same protected class . . . any inference of discrimination, without additional evidence, is not warranted). Furthermore, as Plaintiff acknowledges, there is no evidence that anyone at C&W - let alone a decisionmaker involved in the alleged adverse employment actions - made any invidious or derogatory comment about anyone's race, national origin, or sex. Def. 56.1 ¶ 47-51. See Alexidor v. Donahoe, No. 11-cv-9113 (KMK), 2017 WL 880879, at *7 (S.D.N.Y. Mar. 2, 2017) (no evidence of discriminatory intent where plaintiff provided “no evidence of any discriminatory comments by any . . . supervisors or co-workers directed at Plaintiff or others in her protected groups”); Deluca v. Bank of Tokyo-Mitsubishi UFJ, Ltd., No. 06-cv-5474 (JGK), 2008 WL 857492, at *6 (S.D.N.Y. Mar. 31, 2008) (granting defendant's motion for summary judgment on Title VII and ADEA claim where “[t]here were no comments made in the course of the termination process that reflected any ageist or national origin bias in the termination”); Gilmore v. Lancer Ins. Co., No. 08-cv-0628 (JFB)(WDW), 2010 WL 87587, at *10 (E.D.N.Y. 2010) (granting defendant's motion for summary judgment where plaintiff cited to “no comments by any decision-makers that would provide a basis to infer discriminatory intent”).
Second, Plaintiff has failed to make “[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.'” Mandell v. Cnty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (quoting Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000)). To make such a showing, Plaintiff would have to show that his comparators were (1) “subject to the same performance evaluation and discipline standards” and (2) “engaged in comparable conduct.” Graham, 230 F.3d at 494. Plaintiff claims that Huynh had less experience but a higher salary. Pl. Mem. 10. These facts do not support Plaintiff's claims of race and national origin discrimination, because -like Plaintiff - Huynh identifies as Asian and of Chinese heritage. Def. 56.1 ¶ 38. See Henny v. New York State, 842 F.Supp.2d 530, 555 n.24 (S.D.N.Y. 2012) (rejecting racial discrimination claim where comparators were also African-American); Adeniji v. Admin. for Child. Servs., NYC, 43 F.Supp.2d 407, 426 n.7 (S.D.N.Y. 1999) (collecting cases holding that plaintiff failed to prove disparate treatment where comparators were members of the same protected class). And, although Huynh was also a Senior Accountant and reported to Ye, she had previously served as a consultant for C&W and had higher ratings on her performance evaluations than Plaintiff. Def. 56.1 ¶¶ 20, 29-30. See Assue v. UPS, Inc., No. 16-cv-7629 (CS), 2018 WL 3849843, at *13 (S.D.N.Y. Aug. 13, 2018) (rejecting proposed comparator who consistently received higher scores on performance evaluation than plaintiff); DeJesus v. Starr Tech. Risks Agency, Inc., No. 03-cv-1298 (RJH), 2004 WL 2181403, at *9 (S.D.N.Y. Sept. 27, 2004) (same). Furthermore, in regards to his negative performance evaluation and termination, Plaintiff has not produced any evidence that Huynh engaged in similar conduct and was disciplined differently. See Stinnett v. Delta Air Lines, Inc., 803 Fed.Appx. 505, 509 (2d. Cir. 2020); Risco v. McHugh, 868 F.Supp.2d 75, 100 (S.D.N.Y. 2012) (“A proposed comparator is not similarly situated ‘in all material respects' unless she engaged in all of the same misconduct as plaintiff, or at least committed the most serious of the infractions for which the plaintiff was subjected to an adverse employment action.”) The mere fact that Huynh, a woman, was paid more is insufficient to give rise to an inference that Defendants acted with discriminatory intent. Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995) (no inference of discriminatory intent where “plaintiff failed to produce any evidence” that she was paid less because of her gender and instead relied on fact that three “employees were paid more than she was and that they are men”).
Plaintiff also argues that white, female employees, including Baynes, had better performance ratings and salary increases. Pl. Mem. 9. Baynes, however, was not similarly situated because she held a different job title - Junior Accountant - and had different work responsibilities, in addition to earning significantly less than Plaintiff. Def. 56.1 ¶¶ 54, 80. See Potash v. Florida Union Free Sch. Dist., 972 F.Supp.2d 557, 580 (S.D.N.Y. 2013) (“Employment characteristics which can support a finding that two employees are ‘similarly situated' include ‘similarities in education, seniority, performance, and specific work duties.'”) (quoting DeJesus, 2004 WL 2181403, at *9). In further support of his claim, Plaintiff cites to lists of the salary increases and bonuses received by all members of his team in 2014 and 2015. Pl. 56.1 ¶¶ 190-91. “[U]nanalyzed lists of salaries . . . without accounting for differences in education, seniority, performance, or specific work duties” are insufficient to give rise to an inference of discrimination in relation to compensation. Quarless v. Bronx Lebanon Hosp. Ctr., 228 F.Supp.2d 377, 284 (S.D.N.Y. 2002).
Third, the facts surrounding Plaintiff's unsuccessful application for a promotion, his 2018 performance evaluation, and his termination do not give rise to an inference of discrimination. Although Plaintiff claims that C&W did not treat him “properly for a promotion” in June 2018, the uncontested facts show that Defendant Ye shared the job posting for a managerial position with him and, after he expressed interest, recommended him and forwarded his resume. Def. 56.1 ¶¶ 67-68. Plaintiff does not point to any evidence that he was qualified for the position in question, nor does the record reveal that a candidate not in Plaintiff's protected class was more favorably treated. Chavis v. Wal-Mart Stores, Inc., 265 F.Supp.3d 391, 404 (S.D.N.Y. 2017) (rejecting failure to promote claim where plaintiff “did not know who interviewed for the positions or who the successful candidates were” and “offered no evidence regarding possible animus on the part of . . . the hiring manager for those positions”). The fact that Plaintiff received a negative performance evaluation in 2018 after several years of overall positive evaluations, standing alone, does not support an inference of discrimination. Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 717-18 (2d Cir. 1994). And Plaintiff does not cite to examples of other employees who committed similar acts of misconduct and were treated more leniently. Ruiz v. Cnty. of Rockland, 609 F.3d 486, 495 (2d Cir. 2010) (holding that plaintiff failed to raise an inference of discrimination where he had “not identified a similarly-situated employee who faced equally serious allegations and whom . . . [was] allowed to remain on the job”). Furthermore, “[w]hen the same actor hires a person already within the protected class, and then later fires that same person, it is difficult to impute to [him] an invidious motivation that would be inconsistent with the decision to hire.” Carlton v. Mystic Transp., Inc., 202 F.3d 129, 138 (2d Cir. 2000) (internal quotation marks omitted). Ye participated in both the decision to hire Plaintiff and later to terminate his employment; as such, without further evidence of discriminatory intent (which Plaintiff has not identified), a fact finder could not impute a discriminatory motivation to him.
Accordingly, I conclude that Plaintiff has failed to meet his burden of establishing a prima facie case of discrimination based on race, national origin, or sex.
b. Defendants' Legitimate, Non-Discriminatory Reasons for Conduct
Even if Plaintiff had established a prima facie case, Defendants have articulated legitimate, non-discriminatory reasons for their conduct.
First, Defendants contend that Plaintiff's compensation, as well as that of his alleged comparators Huynh and Baynes, were based on legitimate, non-discriminatory factors. Def. Mem. 7-8. Plaintiff's request for a salary increase was denied on the grounds that he was already compensated at market level. Def. 56.1 ¶ 83. It is uncontested that the salary range in 2021 for Plaintiff's position as Senior Accountant was $75,400 to $113,100. Pl. 56.1 ¶ 13. At the time of his termination in 2019, Plaintiff was earning $84,820, comfortably within this range. Def. 56.1 ¶ 81. See Wood v. Sophie Davis Sch., No. 02-cv-7781 (HB), 2003 WL 22966288, at *3 (S.D.N.Y. Dec. 15, 2003) (reasoning that a “racially neutral fixed salary schedule serves as a legitimate non-discriminatory ground to support a defendant's assertion that plaintiff's salary was, at no point during the period in question, discriminatorily low”). Baynes was awarded a salary increase only after Ye and Carley concluded that her non-exempt salary was below market level for an exempt Junior Accountant position. Def. 56.1 ¶ 76. Indeed, although Baynes received larger raises than Plaintiff, her salary reflected her prior position as Field Coordinator, and so was necessary to bring her within the established pay range for her position as Junior Accountant. Staff v. Pall Corp., 233 F.Supp.2d 516, 536-37 (S.D.N.Y. 2002). Finally, Huynh's salary was slightly higher than Plaintiff's because of her prior experience as a consultant for C&W and her strong performance evaluations. Def. 56.1 ¶¶ 20, 31, 72. See Taffe v. N.Y.C. Sch. Const. Auth, No. 16-cv-2975 (BMC)(LB), 2017 WL 3841854, at *3 (E.D.N.Y. Sept. 1, 2017) (granting summary judgment for defendants where plaintiff's comparator “had more complex work” and “received much better evaluations”).
Second, Defendants argue that Plaintiff's 2018 “Needs Improvement” performance evaluation was the result of his work errors, refusal to follow management directives, and argumentative attitude. According to Ye, after Plaintiff's request for a raise was denied, he refused to perform tasks assigned to him, suggesting instead that Ye assign the tasks to Baynes, and made frequent mistakes in his work. Def. 56.1 ¶¶ 91-93; see also ECF No. 90, Ex. 34 Deposition of Anthony Ye (“Ye Dep.”) 74:6-21. Plaintiff became argumentative and aggressive in response to constructive criticism from his supervisors. Def. 56.1 ¶¶ 112, 114; see also ECF No. 90, Exs. 22 & 23. His 2018 performance evaluation reflects these concerns. See ECF No. 90, Ex. 18. Poor job performance and insubordination constitute legitimate, non-discriminatory reasons for low ratings on performance evaluations, disciplinary warnings, and other adverse employment actions. Lawless v. TWC Media Sols., Inc., 487 Fed.Appx. 613, 616 (2d Cir. 2012) (poor job performance and “lack of judgment in interactions with clients” is a non-discriminatory reason for adverse employment action); Jenkins v. N.Y. State Banking Dep't, No. 07-cv-6322 (JGK) & No. 07-cv-11317 (JGK), 2010 WL 2382417, at * (S.D.N.Y. June 14, 2010), as amended (Sept. 30, 2010), aff'd sub nom. Jenkins v. NYS Banking Dep't, 458 Fed.Appx. 36 (2d Cir. 2012) (negative performance evaluation given “after the plaintiff had engaged in insubordination and misconduct by refusing to follow directives from her superior officers”); Varughese v. Mount Sinai Med. Ctr., No. 12-cv-8812, 2015 WL 1499618 (CM)(JCF), at *47 (S.D.N.Y. Mar. 27, 2015) aff'd 693 Fed.Appx. 41, 42 (2d Cir. 2017) (“gross insubordination” is a legitimate nondiscriminatory reason for adverse employment actions); Vitale v. Equinox Holdings, Inc., No. 17-cv-1810 (JGK), 2019 WL 2024504, at *9 (S.D.N.Y. May 7, 2019) (granting summary judgment where there was record support for Plaintiff's poor performance).
Third, Defendants explain that Plaintiff's termination was the result of his violation of company policy by sending assignments containing PII to his personal email addresses for the purpose of “fight[ing] his case.” Def. 56.1 ¶¶ 145-147. Ye testified at his deposition that the emails contained confidential information, Ye Dep. 267:4-268:13, and in support of their motion for summary judgment Defendants submitted an additional affidavit from Ye explaining that he reviewed the contents and attachments of the email and determined that they contained federal identification numbers, social security numbers, and payroll information, ECF No. 91 Affidavit of Anthony Ye (“Ye Aff.”) ¶ 16. C&W's Global Code of Business Conduct provides that “[e]mployees are expected to treat all knowledge and information related to all aspects of the Company's business as strictly confidential” and forbids the disclosure of “client information outside of the Company without proper authorization to do so.” Def. 56.1 ¶¶ 10-11. C&W's Global Code of Business Corrective Policy further provides that violations of the Code of Business Conduct can result in termination. Id. at ¶ 3; see also ECF No. 90, Ex. 8 at 3. As such, Defendants have established a legitimate, non-discriminatory reason for his termination. See Shider v. Comm'n Workers, Local 1105, No. 95-cv-4908 (RCC), 2004 WL 613093, at *6 (S.D.N.Y. Mar. 29, 2004) (plaintiff's improper disclosure of confidential customer information, a violation of the company's written policy, constituted legitimate, nondiscriminatory reason for termination); Lioi v. N.Y.C. Dep't of Health & Mental Hygiene, 914 F.Supp.2d 567, 587 (S.D.N.Y. 2012) (same).
c. Pretext
Because the Defendants have provided legitimate, nondiscriminatory reasons for the adverse employment actions at issue, the burden shifts back to Plaintiff to prove that these proffered explanations are pretextual. To do so, the Plaintiff must produce “'sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the [defendants] were false, and that more likely than not [discriminatory animus] was the real reason for the [employment action].'” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (quoting Woroski v. Nashua Corp., 31 F.3d 105, 110 (2d Cir. 1994)) (third alteration in original); see also Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997) (“[T]he plaintiff, in order to defeat summary judgment, must present evidence sufficient to allow a rational factfinder to infer that the employer was actually motivated in whole or in part by . . . discrimination.”). To do this, Plaintiff “must ‘establish a genuine issue of material fact either through direct, statistical, or circumstantial evidence as to whether the employer's reason for [the relevant adverse action] is false and as to whether it is more likely that a discriminatory reason motivated the employer' to undertake it.” Varughese, 2015 WL 1499618, at *48 (quoting Dhar v. N.Y.C. Dep't of Transp., No. 10-cv-5681 (ENV)(VVP), 2014 WL 4773965, at *10 (E.D.N.Y. Sept. 24, 2014)).
Plaintiff has failed to point to any admissible evidence that raises a genuine issue of material fact for trial on the issue of pretext. Plaintiff's unsupported claims that Defendants lied in their depositions regarding his compensation, evaluation, and termination, are insufficient to raise a triable issue of material fact. Ying Jan Gan, 996 F.2d at 532 (plaintiff “may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible”; Flores, 885 F.3d at 122 (reasoning that “conjecture, or speculation by the party resisting the motion will not defeat summary judgment”). The fact that Plaintiff disagrees with Ye and Carley's assessment of his work performance and offers his own analysis of the accuracy of his work is also insufficient to make a showing of pretext. Ricks v. Conde Nast Publ'n, 92 F.Supp.2d 338, 347 (S.D.N.Y. 2000) (“The mere fact that an employee disagrees with [his] employer's assessments of [his] work, however, cannot standing on its own show that her employer's asserted reason for termination was pretextual.”); Kalra v. HSVC Bank USA, N.A., 567 F.Supp.2d 385, 397 (E.D.N.Y. 2008) (“[I]t is well settled that the mere fact that an employee disagrees with an employer's evaluation of that employee's misconduct or deficient performance, or even has evidence that the decision was objectively incorrect, does not necessarily demonstrate, by itself, that the employer's proffered reasons are a pretext for termination.”). Finally, Plaintiff does not deny that he forwarded the assignments, although he claims that C&W did not provide the PII in question and that he never received copies of the policies he violated. Def. 56.1 ¶¶ 3, 151. Defendants, however, submitted evidence that PII was included in the attachments to Plaintiff's email, as well as copies of the policies in question. Plaintiff's unsupported claims do not, then, rebut Defendants' proffered legitimate, nondiscriminatory reasons for their actions
I therefore conclude that Plaintiff has failed to raise a triable issue of material fact regarding his race, national origin, and sex discrimination claims, and accordingly recommend that the Court grant Defendant's motion for summary judgment on Plaintiff's Title VII and NYSHRL claims.
2. NYCHRL Claim
NYCHRL discrimination claims differ from Title VII and NYSHRL claims in two ways. First, a plaintiff need not show that the employment action was materially adverse. Instead, he must “simply show that [he] was treated differently from others in a way that was more than trivial, insubstantial, or petty.” Williams v. Regus Mgmt. Grp., 836 F.Supp.2d 159, 173 (S.D.N.Y. 2011). Second, while Title VII places the burden on plaintiffs seeking to prevail under a “‘mixed-motive' theory that discriminatory animus was ‘a motivating factor' in the adverse action,” Varughese, 2015 WL 1499618, at *39, under the NYCHRL “defendants . . . must show that the proof precludes mixed motive liability,” and summary judgment is appropriate “‘only if the defendant demonstrates that it is entitled to summary judgment under both' the McDonnell Douglas analysis and also the ‘mixed motive' analysis,” id. at *40 (quoting Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 113 (1st Dep't 2012)). But “the NYCHRL does not alter the kind, quality or nature of evidence that is necessary to support or defeat a motion for summary judgment under Rule 56.” Ballard v. Children's Aid Soc'y, 781 F.Supp.2d 198, 211 (S.D.N.Y. 2011) (internal quotation marks omitted).
As a threshold matter, Defendants argue that if the Court grants its motion for summary judgment on Plaintiff's Title VII and ADEA claims, it should decline to exercise jurisdiction over his NYSHRL and NYCHRL claims. Def. Mem. 16. “Once a district court's discretion is triggered under [28 U.S.C.] § 1367(c)(3), it balances the traditional ‘values of [i] judicial economy, [ii] convenience, [iii] fairness, and [iv] comity,' in deciding whether to exercise jurisdiction.” Kolari v. N.Y. Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). These factors support the exercise of supplemental jurisdiction because “(1) discovery has been completed, (2) the state claims [are] far from novel, and (3) the state and federal claims [are] substantially identical.” Winter v. Northrup, 334 Fed.Appx. 344, 345-46 (2d Cir. 2009); see also Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305-06 (2d Cir. 2002) (collecting cases where exercise of supplemental jurisdiction was appropriate).
It is possible that some of the additional adverse employment actions alleged by Plaintiff in his opposition to Defendants' motion for summary judgment-namely, his performance evaluations in 2014 and 2015, his 2015 warning letter, the failure to promote him in June 2018 or help him secure a transfer in December 2018, and his placement on the MOE in 2019-might qualify as adverse employment actions under the NYCHRL See Sotomayor v. City of New York, 862 F.Supp.2d 226, 258 (E.D.N.Y. 2012) (reasoning that discriminatory observations, evaluations and letters to file did “not rise to the level of a materially adverse employment action” but “are more than trivial, insubstantial or petty”); Varughese, 2015 WL 1499618, at *46, *53 (assuming without deciding that placement on academic advisement and refusal to switch plaintiff's medical residency rotation could constitute an adverse employment action under the NYCHRL).
But Plaintiff has not pointed to evidence that raises an inference of discrimination even under the more lenient local law standard. As previously noted, Plaintiff's 2014 and 2 015 evaluations were performed by Ye, an Asian-identifying man of Chinese descent, undermining any claim of discriminatory animus. And, constructive criticisms in an otherwise positive evaluation that makes no mention of Plaintiff's race, national origin, or gender can hardly be considered discriminatory. Although Plaintiff attempts to argue that the failure to issue a warning to his white coworker for the 2015 incident constitutes discrimination, his allegation that the coworker “started it” is insufficient to demonstrate that the coworker behaved comparably. Def. 56.1 ¶ 58. Moreover, the correspondence immediately preceding Plaintiff's email indicates that the coworker was attempting to follow Plaintiff's instructions and requested additional guidance to complete the assignment. ECF No. 90, Ex. 36. Describing his efforts as “trial by fire” is not comparable to Plaintiff's condescending remark that he was not the coworker's “babysitter.” Similarly, Plaintiff has not produced any evidence indicating that the failure to promote him in June 2018 was motivated by discriminatory intent. It is not even clear from this record who was responsible for hiring for the position and who was ultimately hired. Similarly, Plaintiff has not identified another member of his team who engaged in similar conduct and was not placed on a MOE or otherwise disciplined. Stepheny v. Brooklyn Hebrew Sch. for Special Child., 356 F.Supp.2d 248, 260 (E.D.N.Y. 2005) (holding plaintiff had failed to establish a prima facie case of discrimination where she “offered no evidence whatsoever that someone outside her protected group . . . was treated more favorably . . . under similar circumstances). Even if he had, Defendants have provided a legitimate, non-discriminatory reason for placing him on the MOE-namely, poor job performance and insubordination-and Plaintiff has failed to raise a triable issue of material fact as to whether this explanation was pretextual. Lawless, 487 Fed.Appx. at 616; see also Varughese, 2015 WL 1499618, at *47 (recognizing insubordination as legitimate and nondiscriminatory reason for adverse employment action on a NYCHRL claim).
Therefore, I conclude that Plaintiff has failed to meet his burden of raising a triable issue of material fact on his NYCHRL discrimination claim.
3. Conclusion
In conclusion, I recommend that Defendants' motion for summary judgment on Plaintiff's Title VII, NYSHRL, and NYCHRL claims of race, national origin, and sex discrimination be granted.
III. Age Discrimination
The McDonnell Douglas burden shifting framework also applies to ADEA cases. Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010). To establish a prima facie case of age discrimination, Plaintiff “must show (1) that [he] was within the protected age group, (2) that [he] was qualified for the position, (3) that [he] experienced adverse employment action, and (4) that such action occurred under circumstances giving rise to an inference of discrimination.” Id. at 107. Furthermore, Plaintiff “‘must prove, by a preponderance of the evidence, that age was the ‘but-for' cause of the challenged adverse employment action' and not just a contributing or motivating factor.” Id. at 106 (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009)). “The condition that a plaintiff's age must be the ‘but for' cause of the adverse employment action is not equivalent to a requirement that age was the employers only consideration, but rather that the adverse employment actions would not have occurred without it.” Fagan v. U.S. Carpet Installation, Inc., 770 F.Supp.2d 490, 496 (E.D.N.Y. 2011). The elements of a discrimination claim under the NYSHRL and the ADEA “are essentially the same,” and courts “apply the same standards for analyzing age discrimination claims under both statutes.” Brannigan v. Bd. of Educ. of Levittown Union Free Sch. Dist., 18 A.D.3d 787, 789 (2d Dep't 2005); see also Abrahamson v. Bd. of Educ. of Wappingers Falls Cent. Sch. Dist., 374 F.3d 66, 71 n.2 (2d Cir. 2004).
In contrast, under the NYCHRL, the Plaintiff need only show that age discrimination “was one of the motivating factors, even if it was not the sole motivating factor for an adverse employment decision.” Melman, 98 A.D.3d at 127.
Plaintiff admits that he does not have any “obvious evidence” of age discrimination, instead speculating that because he “was the oldest in the team and over 50 years old” his age “could be a partial reason that contributed to their discrimination.” Pl. Mem. 12. Such “conclusory and speculative statements are insufficient to withstand a motion for summary judgment.” Isaac v. City of New York, 701 F.Supp.2d 477, 489 (S.D.N.Y. 2010) (dismissing ADEA claim where Plaintiff failed to come forward with any evidence “that could reasonably support an inference of pretext for [age] discrimination”); see also Melman, 98 A.D.3d at 127 (granting summary judgment to employer on NYCHRL age discrimination claim where plaintiff “failed to come forward with any evidence-either direct or circumstantial-from which it could rationally be inferred that age discrimination was a motivating factor, even in part” for his treatment).
Accordingly, I recommend that Defendants' motion for summary judgment on Plaintiff's claims of age discrimination under the ADEA, NYSHRL, and NYCHRL be granted.
IV. Hostile Work Environment
A. Legal Standard
“In order to prevail on a hostile work environment claim, a plaintiff must first show that ‘the harassment was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive work environment.'” Feingold, 366 F.3d at 149 (quoting Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002)). “Second, the plaintiff must demonstrate a specific basis for imputing the conduct creating the hostile work environment to the employer.” Id. at 150; see also Walsh v. Scarsdale Union Free Sch. Dist., 375 F.Supp.3d 467, 488 (S.D.N.Y. 2019) (applying the same standard to claims under the ADEA and NYSHRL); Preuss v. Kolmar Lab'ys, Inc., 970 F.Supp.2d 171, 184 (S.D.N.Y. 2013) (same). A hostile work environment claim is evaluated based on “all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002). “A plaintiff must also demonstrate that [he] was subjected to the hostility because of [his] membership in a protected class.” Brennan v. Metro. Opera Ass'n, Inc., 192 F.3d 310, 318 (2d Cir. 1999).
To prove a claim for hostile work environment under the NYCHRL, “a plaintiff must show that he was treated ‘less well than other employees' on the basis of a protected characteristic.” Alvarado v. Nordstrom, Inc., 685 Fed.Appx. 4, 8 (2d Cir. 2017) (quoting Mihalik, 715 F.3d at 110). As a result, “[t]he NYCHRL imposes liability for harassing conduct that results in any unequal treatment, and ‘severity' and ‘pervasiveness' of the conduct is germane to the issue of damages, not liability.” Schaper v. Bronx Lebanon Hosp. Ctr., 408 F.Supp.3d 379, 398 (S.D.N.Y. 2019) (quoting Mihalik, 715 F.3d at 110). “The plaintiff still bears the burden,” however, “of showing that the conduct is caused by a discriminatory motive” and must make a showing that he has been treated less well at least in part because of his membership in a protected class. Mihalik, 715 F.3d at 110. Furthermore, if an employer can show that the “conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider ‘petty slights and trivial inconveniences'” then the employer may prevail on summary judgment. Mihalik, 715 F.3d at 111 (quoting Williams v. N.Y.C. Hous. Auth., 61 A.D.3d 62, 80 (1st Dep't 2009)).
B. Analysis
The scope of Plaintiff's hostile work environment claim is not entirely clear from his briefs. Defendants argue that his supervisors' criticisms of his work performance do not rise to the level of a hostile work environment, and even if they did, the HR department's prompt investigation of his complaints is a complete defense against the claim. Def. Mem. 14. Furthermore, Defendants contend that Plaintiff fails to demonstrate that any harassment was connected to his membership in a protected class. Id. at 15. Plaintiff responds that: (1) the HR department failed to adequately investigate his complaints and concluded that his supervisors' decisions were justified; (2) HR staff who were cc-ed on his emails with Ye complaining about the additional work he had been assigned asked to be removed from the communication, Pl. 56.1 ¶ 239-46; and (3) he was allegedly not allowed to use his PTO in June 2019. Pl. Mem. 12-13. Plaintiff did not directly respond to Defendants' argument that he had failed to show a causal connection between his race, national origin, age, or gender and his treatment in the workplace.
First, it is well-established that absent a showing of discriminatory animus, “[a]llegations of even constant reprimands and work criticism . . . are not sufficient to establish a hostile work environment claim.” Lucenti v. Potter, 432 F.Supp.2d 347, 362-63 (S.D.N.Y. 2006). Negative job evaluations and disciplinary warnings are also insufficient to support a hostile work environment claim without accompanying evidence of discriminatory intent. St. Louis v. N.Y.C. Health & Hosp. Corp., 682 F.Supp.2d 216, 234 (E.D.N.Y. 2010). As explained above, Plaintiff has failed to produce any direct or circumstantial evidence that Defendants were motivated by animus, and so summary judgment on Plaintiff's hostile work environment claims is appropriate under federal, state, and local law. Pouncy v. Advanced Focus, LLC, 763 Fed.Appx. 134, 136 (2d Cir. 2019).
To the extent that Plaintiff argues that Shelly Paul, a white woman, was treated more favorably than him because she was permitted to take medical leave in the spring of 2019 while his request for PTO was denied, Defendants contest his claim that he was not allowed to take PTO. Def. Mem. 15 n.11. Indeed, Plaintiff himself cites to an email sent to him by an HR staff person informing him that in place of applying for short-term disability, he could “exhaust [his] 56.9 hours of PTO and 40 hours of sick [time].” Pl. 56.1 ¶ 260. Plaintiff's claim is therefore unsubstantiated by the record evidence and does not raise a triable issue of material fact.
I conclude that Plaintiff has failed to carry his burden of raising a triable issue of material fact and recommend that Defendants' motion for summary judgment on Plaintiff's hostile work environment claims under Title VII, the ADEA, NYSHRL, and NYCHRL be granted.
V. Retaliation
A. Legal Standard
The McDonnell Douglas burden-shifting analysis applies to retaliation claims under Title VII, the ADEA, and the NYSHRL. See Cifra v. G.E. Co., 252 F.3d 205, 216 (2d Cir. 2001); Gorzynski, 596 F.3d at 110; Chavis v. Wal-Mart Stores, Inc., 265 F.Supp.3d 391, 398 (S.D.N.Y. 2017). To establish a prima facie case of retaliation, “the plaintiff must show that he engaged in protected participation or opposition under [the statute], that the employer was aware of this activity, that the employer took adverse action against the plaintiff, and that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action.” Sumner v. U.S. Postal Serv., 899 F.2d 203, 208-09 (2d Cir. 1990). “Title VII defines protected activities as (1) an employee's opposition to any activity which is prohibited by Title VII, or (2) an employee's participation in any Title VII investigation or proceeding.” Robinson v. Time Warner Inc., 92 F.Supp.2d 318, 330 (S.D.N.Y. 2000) (applying the same standard to Title VII and NYSHRL claims). Because “implicit in the requirement that the employer [be] aware of the protected activity is the requirement that it understood, or could reasonably have understood, that the plaintiff's opposition was directed at conduct prohibited by Title VII . . . Mere complaints of unfair treatment . . . are not protected.” Brantman v. Fortistar Cap., Inc., No. 15-cv-4774 (NSR), 2017 WL 3172864, at *7 (S.D.N.Y. July 21, 2017) (citations and internal quotations omitted) (alterations in original). Therefore, “the onus is on the speaker to clarify to the employer that he is complaining of unfair treatment due to his membership in a protected class and that he is not complaining merely of unfair treatment generally.” Id.
The NYCHRL provides that “[it] shall be an unlawful discriminatory practice for any person engaged in any activity to which this chapter applies to retaliate or discriminate in any manner against any person because such person has (i) opposed any practice forbidden under this chapter.” N.Y.C. Admin. Code § 8-107(7). Consequently, “[t]he [NY]CHRL is slightly more solicitous of retaliation claims than federal and state law because, rather than requiring a plaintiff to show an ‘adverse employment action,' it only requires him to show that something happened that was ‘reasonably likely to deter a person from engaging in protected activity.'” Malena v. Victoria's Secret Direct, LLC, 886 F.Supp.2d 349, 362 (S.D.N.Y. 2012) (quoting Rozenfeld v. Dep't of Design & Constr., 875 F.Supp.2d 189, 208 (E.D.N.Y. 2012)). “Otherwise, a prima facie claim of retaliation faces the same requirements under the NYCHRL as under the NYSHRL.” Id.
B. Analysis
Plaintiff has not met his burden of raising a triable issue of material fact on his Title VII or NYSHRL claims. First, his request for a raise in November 2018 does not constitute protected activity. Despite his claims that he was concerned that Asians on his team were not adequately compensated, he did not make any such allegation to Ye and Carley or in his subsequent meeting with Lanciers, where he reported that was interested in a transfer because he felt his work was not appreciated. Def. 56.1 ¶¶ 72-89. There is no evidence that he articulated his concern that women on this team were better paid because of their gender. As such, Ye, Carley, and Lanciers could not have been “actually aware or could have reasonably understood” his request for a raise to be directed at prohibited conduct. Benzinger v. Lukoil Pan Americas, LLC, 447 F.Supp.3d 99, 126 (S.D.N.Y. 2020) (holding that plaintiff's complaints about her overtime and her statement that it was unfair that a coworker was paid more were insufficient to put employer on notice that she believed her lower compensation was motivated by her national origin). Similarly, Plaintiff's March 18, 2019 email to HR complaining that his 2018 performance evaluation was unfair does not make any mention of discrimination, and so was also insufficient to put Defendants on notice that Plaintiff had engaged in protected activity. Def. 56.1 ¶¶ 105, 108.
Second, Plaintiff has not demonstrated that his May 1, 2019 email to Snow and Sheehan stating that he believed he was discriminated against as an Asian male resulted in any retaliatory action. This complaint constitutes protected activity, and the fact that it occurred less than a month before his termination is sufficient to raise an inference of retaliation. Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 224 (2d Cir. 2001) (holding that one-month time span between protected activity and adverse employment action was “short enough to permit a jury to infer a causal connection”). However, Defendants have provided a legitimate, nondiscriminatory explanation for his termination: his violation of company policy in sending confidential data to his personal email. As explained above, Plaintiff has failed to raise a triable issue of material fact that this explanation is pretextual. El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010) (“The 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, but without more, such temporal proximity is insufficient to satisfy appellant's burden to bring forward some evidence of pretext.”). Therefore, I conclude that Defendants are entitled to summary judgment on Plaintiff's retaliation claims under Title VII and the NYSHRL.
Even under the more solicitous standard of the NYCHRL, Plaintiff has failed to carry his burden. Neither Plaintiff's November 2018 request for a raise nor his March 2019 complaints about his 2018 performance evaluation constitute protected activity. While local law does not require that Plaintiff “say in so many words” that an employer's action represented discrimination, a jury must be able to infer that the employer understood that plaintiff was opposing what he believed to be a discriminatory practice. Albunio v. City of New York, 16 N.Y.3d 472, 479 (2011) (holding that plaintiff did not explicitly state that a job candidate was a victim of discrimination but “a jury could find that both [plaintiff and her supervisor] knew that he was, and that [plaintiff] made clear her disapproval of that discrimination”). No reasonable jury could conclude, based on context alone, that an employer would have understood Plaintiff's request for a raise and his objections to his performance evaluation as opposing a discriminatory practice. And while Plaintiff's May 1, 2019 email constitutes protected activity, Defendants have, once again, established a legitimate, nondiscriminatory reason for Plaintiff's termination less than a month later-an explanation Plaintiff has been unable to prove was pretextual-and Plaintiff has not produced evidence that Defendants engaged in any other conduct in May 2019 that was reasonably likely to deter him from engaging in protected activity. Therefore, I conclude that Plaintiff has failed to raise a triable issue of material fact on his NYCHRL retaliation claim.
In conclusion, I recommend that the Court grant Defendants' motion for summary judgment on Plaintiff's retaliation claims under Title VII, the NYSHRL, and the NYCHRL.
CONCLUSION
I recommend that Defendants' motion for summary judgment be GRANTED on all claims, and that Plaintiff's motion for summary judgment be DENIED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Valerie E. Caproni at the United States Courthouse, 40 Foley Square, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Caproni. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).