JAMES L. COTT, United States Magistrate Judge.

REPORT AND RECOMMENDATION

JAMES L. COTT, United States Magistrate Judge.

To The Honorable Deborah A. Batts, United States District Judge:

Plaintiff Brace Lytle, proceeding pro se, has filed this employment discrimination action against his former employer, JPMorgan Chase Bank NA ("JPMC"), pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), the New York State Human Rights Law ("NYSHRL"), and the New York City Human Rights Law ("NYCHRL"). Lytle, who is African-American and an observant Jehovah's Witness, alleges that he was subjected to discriminatory treatment on account of his race, color, and religion, eventually resulting in his termination. He further alleges that JPMC subjected him to a hostile work environment; failed to provide him with a requested religious accommodation; and unlawfully retaliated against him after he made complaints to JPMC management regarding the alleged discriminatory treatment. JPMC now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons discussed below, I recommend that JPMC's motion for summary judgment be granted.

I. BACKGROUND

A. Facts

1. Lytle's Employment at JPMC

Lytle was employed by JPMC from November 27, 2002 through April, 2003, and again from January, 2005 until August 17, 2007. (Def.'s Stmt. ¶¶ 7-8; Affidavit of Magaly Denis-Roman, sworn to Apr. 20, 2011 ("Denis-Roman Aff.") (Dkt. No. 85), ¶¶ 5-6 & Exhibit ("Ex.") D). From 2002 to 2003, Lytle worked as a Senior Technology Analyst in JPMC's Central Technology and Operations group ("CTO"). (Def.'s Stmt. ¶ 7; Denis-Roman Aff. ¶ 5 & Ex. D; Pl.'s App. II at 22). At the time of his 2007 termination, Lytle was a Technology Operations Technician, alternatively called a Data Center Technician ("DC Tech") within CTO, which is part of the Global Technology Infrastructure component of JPMC. (Def.'s Stmt. ¶¶ 8, 83; Denis-Roman Aff. ¶ 6 & Ex. D; Memorandum of Law in Support of Defendant's Motion for Summary Judgment, dated Apr. 21, 2011 ("Def.'s Mem.") (Dkt. No. 88), at 5). Lytle wad an at-will employee at all times during his employment with JPMC. (Def.'s Stmt. ¶ 9; Affidavit of Zoe E. Jasper, sworn to Apr. 21, 2011 ("Jasper Affidavit" or "Jasper Aff.") (Dkt. No. 84), Ex. E; Denis-Roman Aff. ¶ 8). The facts giving rise to Lytle's lawsuit occurred from approximately July, 2005 onward, during Lytle's second period of employment with JPMC. (Complaint, dated November 4, 2008 ("Complaint" or "Compl.") at 4, 12).

As an employee of JPMC, Lytle worked between eight and twelve-hour shifts at night. (Lytle Tr.; 45:14-17, 46:5, 47:12, 48:25, 70:21-24; Def.'s Stmt. ¶¶ 12, 63; Affidavit of Michael J. Melleby in Support of Motion for Summary Judgment, sworn to Apr. 21, 2011 ("Melleby Aff.") (Dkt. No. 86), ¶ 3). Lytle opted for evening shifts because he received a "nighttime differential" (Lytle Tr.: 47:25), meaning he was paid an additional fifteen percent for working at night. (Lytle Tr.: 48:24-49:4; see Denis-Roman Aff. ¶ 7). During his employment, Lytle worked at various JPMC facilities in the greater New York area, including locations in Jersey City, New Jersey, downtown Manhattan, and "uptown" locations on Park Avenue. (Compl. at 19-21; Lytle Tr.: 52:21-25, 71:2-3, 72:24-25; Denis-Roman Aff. Ex. D).

From approximately July, 2005 until July or August, 2006, Lytle was supervised by Anthony Marino. (Lytle Tr. at 70:13-17, 71:17-21; Def.'s Stmt. ¶ 10). Lytle testified at his deposition that he and Marino had a mostly pleasant working relationship, with the exception of certain comments made by Marino, discussed below, which Lytle perceived as offensive. (Compl. at 13; Lytle Tr.: 297:6-8). Lytle testified that he and Marino "never had a negative conversation." (Lytle Tr.: 297:8-9, 297:17-298:11; Def.'s Stmt. ¶ 11). In about August, 2006, Lytle began reporting to Mauricio Jorquera, with whom Lytle would have little direct contact. (Compl. at 23; Lytle Tr.: 300:25-301:25). The limited nature of their interactions was in part because Jorquera would arrive at work as Lytle's shift ended (Compl. at 29-30; Lytle Tr.: 300:25-301:2), and their longest interaction was their first meeting, which lasted approximately fifteen minutes. (Lytle Tr.: 301:13-15). In early 2007, Michael Mclleby became Lytle's supervisor. (Lytle Tr.: 292:20-21; Def.'s Stmt. ¶ 62).

Lytle's factual allegations implicate a number of other JPMC employees, including managers, human resources staff, and colleagues in the CTO facilities where Lytle worked, called "datacenters." For ease of reference, the Court will briefly identify other individuals relevant to Lytle's allegations. In addition to his immediate supervisors—Marino, Jorquera, and Melleby—several other JPMC employees in managerial positions are referred to in Lytle's Complaint and the attachments thereto. Mike Gotimer was a senior manager in Lytle's department. (Lytle Tr.: 51:10-12, 160:13; see Def.'s Stmt. ¶ 74). Likewise, Linda Morales was a senior manager to whom Melleby, Lytle's last direct supervisor, reported. (Melleby Aff. ¶ 5). Vincent Fava was also a senior manager. (McKee Aff. ¶ 41). Lytle's "direct" manager was Joe Soto. (Compl. at 12; Lytle Tr.: 160:17-19). Two other managers relevant to Lytle's Complaint are Jeff Flournoy and Bernard George. (Lytle Tr.: 243:3-4). George had been a friend of Lytle's since childhood and at one point had been Lytle's supervisor. (Lytle Tr.: 51:3-4, 245:5).

Other colleagues referred to in Lytle's Complaint and opposition papers include Johnny Davis, a "shift lead" like Lytle (Compl. at 12; Lytle Tr.: 243:3-4); Wiz Pierre-Louis; Horace Henry; and Daryl Harris. (Lytle Tr.: 111:8-13, 182:14-15, 243:6-11, 354:7-8, 11-17, 356:11-24). Beginning in March, 2007, Lytle shared a cubicle with two other DC Techs, David Guillermo and Daniel Arenas. (Lytle Tr.: 313:5, 7, 318:4-17, 319:6; Melleby Aff. ¶ 15). Finally, Lytle interacted with several administrators during his employment, including Brenda McKee and Lillian Davenport of JPMC's Employee Relations Department, and Alicia Dee from JPMC's Human Resources Department. (Lytle Tr.: 355:4-5, 390:7-14; Def.'s Stmt. ¶ 40; McKee Aff. ¶ 19).

2. Lytle's Allegations Regarding Improper Conduct at JPMC

a. Lytle's Attendance at Religious Meetings

As a practicing Jehovah's Witness, Lytle participated in several meetings per week at the local Kingdom Hall. (Melleby Aff. Ex. C). Before accepting employment with JPMC, Lytle had entered into a schedule with Soto and George that enabled him to attend these meetings. (See Lytle Tr.: 245:15-21; Def.'s Stmt. ¶ 15; Compl. at 4). In or around August, 2005, George and Davis informed Lytle of a conversation among several managers in which Marino had questioned the arrangement. (Compl. at 12; Lytle Tr.: 242:24-25, 243:3-4). Lytle was surprised to learn of Marino's comments regarding his schedule because it was in contrast to the "pleasant conversation" that Lytle had with Marino in person about Lytle's late arrival on the evenings when he needed to attend the religious meetings. (Compl. at 12; Lytle Tr.: 244:8, 247:4; Def.'s Stmt. ¶ 17). Lytle took Marino's remarks to mean that Marino felt Lytle was "receiving special treatment for religious reasons." (Compl. at 13, 29).

Despite making this comment, Marino never interfered with Lytle's attendance at individual religious meetings. (Lytle Tr.: 244:23, 246:23-24; Def.'s Stmt. ¶ 16). Nevertheless, Lytle worried that Marino might use his status as a vice president to change Lytle's schedule. (Lytle Tr.: 246:13-15). A week or two after learning of Marino's remark, the two spoke about Marino's comments. (Compl. at 15; Lytle Tr.: 247:9-23). Marino did not deny having made the comment but assured Lytle that his schedule would not be a problem. (Compl. at 15; Lytle Tr.: 247:17-23).

More than a year later, in December, 2006, Lytle learned that, pursuant to a department-wide transition, his schedule was to change from a nine-hour shift five days per week to a twelve-hour shift that alternated between three and four days per week. (Compl. at 39, 130; see Def.'s Stmt. ¶ 63; Melleby Aff. ¶ 3). Consequently, on January 9, 2007, Lytle asked Melleby for an adjustment to his schedule that would enable him to attend religious meetings on Friday evenings, suggesting that he begin work three hours later on Friday evenings and finish work later on Saturday mornings. (Compl. at 130; Lytle Tr.: 346:2, 7; Def.'s Stmt. ¶ 64; Melleby Aff. ¶ 4). On January 16, 2007, per Melleby's request, Lytle submitted this proposal in writing, which Melleby forwarded to Morales, his manager. (Melleby Aff. ¶ 5 & Ex. C; see Compl. at 130). Based on a concern held by Melleby and Morales that the delayed start time would pose a risk of inadequate coverage, on January 18, 2007, Melleby responded to Lytle's request by stating that "[t]he approval on [his request] d[id] not look good." (Def.'s Stmt. ¶ 65; Melleby Aff. ¶¶ 6-7 & Ex. C; see Compl. at 130). Lytle contends that Melleby explained the rationale for not granting his request with the statement, "if we do it for one, we have to do it for everyone . . . ." (Compl. at 99). Melleby proposed several alternative arrangements, including a sixty-day adjustment period and a shift at the beginning of the week, if one were to become available. (Def.'s Stmt. ¶ 67; Melleby Aff. ¶¶ 7, 10 & Exs. C-D). As to this second option, Melleby stated, "Not saying that it is available, but if that is better, maybe we can explore that option." (Melleby Aff. Ex. D).

Lytle also offered two suggestions, one of them being that he would take part in the Friday evening meetings by telephone from JPMC. (Compl. at 130; Lytle Tr.; 347:11-12, 351:3-9; Def.'s Stmt. ¶ 66; Melleby Aff. ¶¶ 8, 10 & Ex. D). According to his proposal, Lytle would be able to participate in the meetings in person if he needed to "deliver[] a discourse which might average once every 5 weeks or so" and would arrive late to work on those days. (Melleby Aff. Ex. D; see also Compl. at 130; Lytle Tr.: 347:15, 18, 351:3-6). At first, Lytle found the arrangement acceptable (Lytle Tr.: 347:18), although he testified that he had felt compelled to enter into it. (Lytle Tr.: 362:8-24).

Over time, Lytle found the arrangement to be problematic. (Lytle Tr.: 349:12-14). For example, he sometimes had trouble dialing into the meetings. (Lytle Tr.: 351:13). Moreover, he began to feel that it was improper for him to use the Kingdom Hall's telephone line because he felt it was intended to be used by the "sickly and elderly." (Lytle Tr.: 361:12-22). Accordingly, Lytle believed that he "shouldn't have accepted the arrangement" (Lytle Tr.: 362:23-24), although he "took some of the blame that [it] didn't work and [he] couldn't connect to the meetings as often as [he] should, because [he] kn[e]w [he] shouldn't have been connecting to the meetings that way anyway." (Lytle Tr.: 362:25-363:5). Additionally, Lytle was "annoyed" that Melleby offered to two other employees, who were Caucasian, shifts that Lytle considered to be the alternative shifts Melleby had suggested in his January 19, 2007 e-mail. (Compl. at 99, 101, 131-32; Lytle Tr.: 353:11-12, 17-19, 24-25).

Lytle also took issue with the schedule that JPMC provided to another member of Lytle's department, Robert Kayaian, who was Caucasian. (Compl. at 100, 131; Lytle Tr.: 354:3-4; Pl.'s Mem. at 3-4; Pl.'s App. I at 9-10; Pl.'s App. II at 16). Kayaian worked a similar schedule as Lytle and two other JPMC employees, Harris and Henry, but Lytle believed "he was allowed to come in every day of his shift three hours later" (Lytle Tr.: 354:3-8, 22, 24-25; see also Compl. at 131), although Lytle acknowledged that Davenport and McKee stated this belief was not accurate. (Lytle: 355:4-6).

Lytle did not inform Melleby directly that he found the agreed-upon arrangement difficult. (Lytle Tr.: 349:17, 350:8-9, 351:16-17). Accordingly, when Lytle complained in June, 2007, he still had not spoken to Melleby about his dissatisfaction. (Lytle Tr.: 352:18-19; Melleby Aff. ¶ 11; see Def.'s Stmt. ¶ 68). Once Melleby learned of his concerns, he and Lytle participated in a "telephone bridge call" with several individuals from JPMC's human resources department to address the conflict between Lytle's work schedule and his religious obligations, (Compl. at 136; Lytle Tr.: 400:7; Melleby Aff. ¶ 13). Lytle was asked to provide three possible solutions to the scheduling conflict during that bridge call (Compl. at 136; Lytle Tr.: 401:3; Def.'s Stmt. ¶ 68), but he refused because he felt there was "an easy fix," meaning that JPMC could allow him to arrive late on Friday nights, permitting him to attend religious meetings, as it had accommodated Kayaian. (Lytle Tr.: 401:6-10; see also Compl. at 104, 136; Melleby Aff. ¶ 13).

b. Racial Remarks and Other Discriminatory Conduct

Lytle also alleges that certain JPMC managers made racially-motivated comments in the work place. In both his Complaint and his opposition papers, Lytle refers to a statement that Marino made during a staff meeting in July, 2005 at which several vice presidents, managers, and shift leads were present. (Compl. at 4, 12, 29, 99; see also Pl.'s App. I at 1; Pl.'s App. II at 19-20). "Marino refer[red] to a staff of minorities[] as 'monkeys needing to be taught new tricks.'" (Compl. at 4). According to Lytle, Soto, who was Marino's supervisor, responded to this statement by stating, "see Anthony[,] that's why your mouth is always getting you in trouble." (Compl. at 12).

In the months following this staff meeting, Lytle learned from other JPMC employees that Marino had made other comments specifically about him, although not explicitly based on his race. For example, Marino questioned Lytle's ability to be "aggressive" in his job, an impression that Marino tested by giving him a series of tasks as "a test . . . to fail so that [Marino] would now have something to take back to [Soto]." (Compl. at 14; see also Compl. at 29). Additionally, in November, 2005, Marino raised the possibility of potential layoffs at JPMC that might affect Lytle, and he reiterated his concerns about Lytle's work performance and his "lack of communication" in particular. (Compl. at 15; see Lytle Tr. 258:15-259:7, 256:13-14). Up to that point, Marino had not directly discussed layoffs with Lytle or criticized him in any way. (Lytle Tr.: 259:24-25). Nevertheless, Lytle sent an e-mail to a number of JPMC managers and other personnel complaining about Marino. (Compl. at 15, 29; Lytle Tr.: 259:12). Consequently, Soto and Lytle met for an extended meeting to discuss his complaints about Marino. (Compl. at 16-17, 22). Later, Lytle also spoke with Marino directly about Marino's statements concerning Lytle's assertiveness and the handling of his workload. (Compl. at 15-16).

Lytle contacted JPMC's human resources department as a result of his conversation with Soto. (Compl. at 17; see also Compl. at 42, 96; McKee Ex. D). According to Lytle, the individual with whom he spoke, whose name he cannot recall, told Lytle he was "right on all points," in particular Marino's failure to communicate with him directly, and she encouraged him to communicate with his manager on a regular basis. (Compl. at 17). Also during this meeting, Lytle informed the human resources representative of another discriminatory comment he overheard in September or October of 2005. Without indicating that the speaker was Marino, Lytle told the representative that the speaker had referred to another JPMC employee whose name he could not pronounce as a "f#@xking dot head," which Lytle took to be a reference "to an Indian." (Compl. at 17-18, 29). Marino had made this comment with only Lytle present. (Compl. at 17-18). Although the human resources representative repeatedly asked Lytle for the identity of this manager, and cited JPMC's zero-tolerance policy toward such discriminatory comments, Lytle refused to tell her who made the comment. (Compl. at 17).

Separately, Lytle alleges that he learned at some point while he worked under Jorquera that Jorquera had said of him, "I'm gonna fire that nigga." (Compl. at 99). Lytle stated that an independent contractor told him that she had overheard Jorquera repeatedly use the term "nigga" in speaking to another independent contractor, specifically an African-American man. (Compl. at 134; Lytle Tr. 364:20; see McKee Aff. ¶ 44). Despite learning of Jorquera's comment, Lytle testified at his deposition that he personally had never heard Jorquera use the term or say anything that he found offensive, (Lytle Tr.: 364:23).

In his Complaint and in his deposition testimony, Lytle alludes to several other instances of discriminatory remarks and/or conduct. For example, Lytle claims to have personally witnessed at least two additional instances of Marino making racial remarks and to have learned of at least one other incident, which involved an Asian employee named Rosetta Lu or Li. (Compl. at 18). Furthermore, Lytle alleges that he was passed up for a desirable position with JPMC in Newport, New Jersey, which he later learned was filled by an individual named David Rivera, who was a friend of Marino and a Hispanic individual who Lytle believed "act[ed] white" but was not technologically qualified to be a "shift lead." (Lytle Tr.: 303:6-25, 304:24-25). Finally, Lytle alleges that Morales, whom he characterizes as a "racist," told Lytle "to go home because [he] can't work with whites; [he] can only work with Afro-Americans only." (Compl. at 68, 101).

More generally, Lytle cites to several instances of "how inconsistent [JPMC] is when it comes to meeting [its] disciplinary action against its employees," and makes reference to other employees who received preferential treatment—including favorable salaries, pay raises, bonuses, or requested schedules—because they were Caucasian (but less skilled than certain other African-American employees) or close with managers. (Compl. at 16, 27-28, 134-35). For example, in his Complaint, Lytle recounts learning of African-American employees of JPMC who were terminated or demoted for offenses Lytle considered less serious than Marino's actions (Compl. at 124, 134-35), and he notes that JPMC responded to other employees' complaints more quickly than it responded to his. (Compl. at 135).

c. Lytle's Title Change from DC Tech I to DC Tech II

In or about late 2005, Marino gave Lytle his year-end performance review. (Compl. at 18; Lytle Tr.: 289:12; Def.'s Stmt. ¶ 13). During this meeting, Marino told Lytle that his work was improving and assured him that he would be receiving a favorable rating as well as a pay raise and a bonus. (Compl. at 18). Marino stated that Lytle's raise and promotion would be similar to that of his "counter part," Davis. (Compl. at 100). In particular, Lytle and Davis would receive "double promotions," meaning a promotion made in two stages, with the second resulting from an additional review about four months after that initial review. (Compl. at 19, 22). Lytle claims that Davis eventually received the promotion at some point in 2006, although the record is not clear whether this was before or after Lytle received his title change to DC Tech II. (Compl. at 19).

In mid-2006, Lytle was given additional responsibilities such as scheduling other JPMC employees, and in July, 2006, JPMC transferred him to an "uptown" location on Park Avenue, where he was told he would supervise a larger staff and where he was to be supervised by Jorquera. (Compl. at 19, 99). Lytle claims that although he was "told that [he] was being moved uptown to manage the [larger] staff, it was stressed that if [he] didn't move uptown that [his] job would be in jeopardy." (Compl. at 20).

In or about September, 2006, shortly after he was moved to the "uptown" location, Lytle learned from Davis that all shift leads were going to receive a promotion from Data Center Technician I ("DC Tech I") to Data Center Technician II ("DC Tech II"), which he took to be the "double promotion" Marino had mentioned at his 2005 year-end review. (Compl. at 21). Lytle discovered that he had not yet received the title change, but Guillermo and Arenas had. (Compl. at 21-22, 101; see Def.'s Stmt. ¶ 20; McKee Aff. ¶ 34 & Exs. H-I; Lytle Tr.: 317:16-19). In October, 2006, when Lytle still had not received the title change, he approached his former manager and childhood friend Bernard George. George informed Lytle that Marino had told several managers that "[e]verybody [would be] getting a promotion but [Lytle]." (Lytle Tr.: 315:7-25; see also Compl. at 23, 100). Marino also stated that Lytle "was not even getting a raise [or] a bonus." (Lytle Tr.: 315:22-24).

The title change from DC Tech I to DC Tech II resulted in a title change only and was not accompanied by any increase in compensation or benefits. (Lytle Tr.: 316:6, 9; Def.'s Stmt. ¶ 19; McKee Aff. ¶ 35). Nevertheless, Lytle alleges that the delay in his title change reflects improper conduct on the part of JPMC. Lytle claims that when he met with Jorquera for his 2006 year-end review—described in greater detail below—he indicated his refusal to sign off on his evaluation unless he received a title change. (Compl. 24, 29). Jorquera informed him that the failure to change his title was an oversight (Compl. at 24; Lytle Tr.: 317:8-9), and that his title was less significant to his employment status than his "grade." (Lytle Tr.: 319:12-17). However, Lytle asserts that Jorquera's representation about the failure to change Lytle's title was a "[l]ie[]" (Compl. at 24-25) and that JPMC only changed his title because he had exerted pressure on his managers. (Lytle Tr.: 316:20-317:3). In December, 2006, Lytle received a title change from DC Tech I to DC Tech II. (Lytle Tr.: 316:20; Def.'s Stmt. ¶ 19; McKee Aff. Ex. J).

d. Lytle's 2006 Year-end Performance Evaluation

Jorquera completed Lytle's 2006 year-end performance evaluation in December, 2006. (Compl. at 23-26; Lytle Tr.: 300:8; Def.'s Stmt. ¶ 21; see McKee Aff. ¶ 20 & Ex. E.). Jorquera told Lytle that he was disappointed that he would have to complete his review because of their limited contact, and that neither Morales, Jorquera's supervisor, nor Soto had inquired about Lytle's performance, or that of Guillermo and Arenas. (Compl. 24; Lytle Tr.: 301:15-20). Lytle was similarly concerned that Jorquera would be performing his evaluation given their few interactions. (Lytle Tr.: 300:21).

Jorquera initially gave Lytle an overall performance rating of "Needs Improvement" in his evaluation. (Compl. at 88; Def.'s Stmt. ¶ 21; McKee Aff. ¶ 25 & Ex. F). A rating of "Needs Improvement" was the third of the applicable three-tier evaluation rubric, with "Exceeds Expectations" being the first and "Meets Expectations" being the second. (Compl. at 88; Def.'s Stmt. ¶ 23; McKee Aff. Ex. E.). More specifically, Jorquera gave Lytle a "Meets Expectations" rating in 11 of the 22 skills, goals, and achievement categories; an "Exceeds Expectations" rating in three categories; a "Needs Improvement" rating in two categories; and no rating in six categories. (Compl. at 88; Def.'s Stmt. ¶ 22; McKee Aff. ¶ 23 & Ex. E). In his self-assessment, Lytle rated himself as "Needs Improvement" in three categories, "Meets Expectations" in six other categories; and no rating in two categories. (Compl. at 88; Def.'s Stmt. ¶ 24; McKee Aff. ¶ 24 & Ex E). During their meeting, Jorquera "basically told [Lytle] that [he] was doing a good" job, but he noted areas for improvement, which Lytle alleges were without merit. (Compl. at 25).

In January, 2007, after he learned that his co-workers were receiving news of their raises, Lytle contacted Jorquera to determine whether he would be receiving a raise and, if so, in what amount. (Compl. at 26). Initially Jorquera responded to Lytle by stating that he (Jorquera) would have to confer with Soto, which Lytle believed to be a lie based on George's indication that he had been present at an earlier meeting between Soto and Jorquera during which Soto stated Lytle would not be receiving a raise. (Compl. at 26). At some point after late February, 2007, Jorquera informed Lytle that he would not be receiving a raise as a result of his 2006 year-end review. (Compl. at 26, 42, 96).

e. Lytle's Seating Assignment

In March, 2007, Lytle was assigned to work at JPMC's office at 270 Park Avenue, where his group was arranged in cubicles, with at least two employees who worked different shifts using the same cubicle. (Def.'s Stmt. ¶¶ 70-71; Melleby Aff. ¶¶ 14-15; see Denis-Roman Aff. Ex. D). Although certain cubicles in this space were shared by only two employees and several were "filled with junk" rather than used for office space (Compl. at 131; Lytle Tr.; 191:24-192:4), Lytle was assigned to work in a cubicle with Guillermo and Arenas. (Compl. at 101, 132; Lytle Tr.: 191:21-23, 192:18; Def.'s Stmt. ¶ 70; Melleby Aff. ¶ 15). Lytle's personal work space was "a very tiny table that ha[d] a built-in file cabinet" so that he had "approximately two to three inches of leg room under this table with a long desk at [his] back that [Guillermo and Arenas] share[d] with lots of leg[] room." (Compl. at 132; see also Compl. at 46-49, 57-60, 78, 80-81 (photos)).

Although Lytle disliked this seating arrangement, he did not complain about it to JPMC because he felt the assignment was a deliberate and retaliatory response to his earlier complaints to management. (Compl. at 132; Lytle Tr.: 192:4-11). In June, 2007, when Melleby did learn that Lytle had complained to the EEOC about his work space, he offered to provide Lytle with an alternative seating arrangement. (Lytle Tr.: 191:5-9; Def.'s Stmt. ¶ 72; Melleby ¶ 16). However, Lytle "told him it[] [would] not [be] necessary since [he was] not going to be [t]here long, but thank[ed] him just the same." (Compl. at 127).

f. Personnel Records Reflecting His Office Location

Lytle further alleges that he suffered because his managers, who were responsible for updating his personnel files to reflect his office location, failed to update his records to show that he was working in New York City, rather than at JPMC facilities in Newport, New Jersey, (Compl. at 27, 100). Lytle alleges that this erroneous label resulted in his having to pay New Jersey taxes in addition to the New York State and New York City taxes that he had to pay as a resident. (Compl. at 27). Lytle believes that Soto, Marino, and Jorquera must have "malicious[ly]" and "deliberate[ly]" failed to amend his records to reflect his work location given how easily Melleby was able to change the records in January, 2007. (Compl. at 27).

3. Lytle's Complaints to Human Resources

On or about January 23, 2007, Lytle contacted JPMC's Employee Relations Advice Connections group ("ERAC"). (Def.'s Stmt. ¶ 28; McKee Aff. ¶ 6 & Ex. A). ERAC provides human resources support for certain business components including Lytle's, and is available to address questions about employment policies, procedures, and benefits from employees, and for employees "to report policy or Code of Conduct violations and to assert complaints of discrimination or retaliation." (Def.'s Stmt. ¶ 26; McKee Aff. ¶ 2). In this capacity, "ERAC representatives are responsible for conducting investigations into complaints of discrimination and retaliation asserted by employees, consulting with partners in Human Resources, management and Legal, as appropriate, and making recommendations as to appropriate next steps, if any, on these matters." (Def.'s Stmt. ¶ 27; McKee Aff. ¶ 3).

When Lytle contacted ERAC on January 23, 2007, McKee was unable to speak with him, but she emailed him and asked him to call again the following day. (Def.'s Stmt. ¶ 28; McKee Aff. ¶ 6 & Ex. A). Lytle contacted ERAC again on January 29, 2007 and spoke with McKee. (Def.'s Stmt. ¶ 29; McKee Aff. ¶ 7 & Ex. B). During that call, Lytle raised several concerns he had about his employment, including his negative 2006 year-end review, his having approached his manager about not having received a salary increase or bonus, and the delay in his title change to DC Tech II. (Def.'s Stmt. ¶ 29; McKee Aff. ¶ 7 & Ex. B). Lytle did not inform McKee during this call that he believed any of his concerns were the result of racial, religious, or other discrimination. (Def.'s Stmt. ¶ 30; McKee Aff. ¶ 8 & Ex. B). McKee advised Lytle to speak with his manager concerning his 2006 year-end review and his objectives for 2007. (Def.'s Stmt. ¶ 31; McKee Aff. ¶ 9 & Ex. B).

On or about February 12, 2007, McKee received a voicemail from Lytle indicating he would contact her by e-mail. (Def.'s Stmt. ¶ 32; McKee Aff. ¶ 10 & Ex. C). McKee contacted Lytle that day to advise him that she had not received the e-mail he referred to in his voicemail, and she stated that she would like to meet with him, inquiring about his availability. (Def.'s Stmt. ¶ 32; McKee Aff. ¶ 10 & Ex. C). There is nothing in the record to establish that McKee and Lytle met or exchanged any communication over the coming months.

On April 27, 2007, Lytle sent an e-mail to McKee, on which he copied 16 other JPMC recipients (the "April 27 E-mail"). (Compl. at 42-44, 53-55; Def.'s Stmt. ¶ 33; McKee Aff. ¶ 11 & Ex. D; Melleby Aff. ¶ 17). The subject line of this e-mail was "Sorry it had to come to this." (Compl. at 42-44, 53-55; Def.'s Stmt. ¶ 33; McKee Aff. ¶ 11 & Ex. D; Melleby Aff. ¶ 17). In the e-mail, Lytle alleged that certain JPMC employees in "management positions" had used racial epithets, and he complained about his 2006 year-end performance review and having not received a salary increase. (Compl. at 42; Def.'s Stmt. ¶ 33; McKee Aff. ¶ 11 & Ex. D; Melleby Aff. ¶ 17). The e-mail also indicated that Lytle had submitted a complaint to the EEOC describing racial and religious discrimination and retaliation, and it stated that he had contacted Human Resources twice before contacting ERAC three times about his 2006 year-end performance evaluation and other concerns. (Compl. at 42; Def.'s Stmt. ¶ 33; McKee Aff. ¶ 11 & Ex. D; Melleby Aff. ¶ 17). McKee attempted to contact Lytle by phone and e-mail the day she received this message but was unsuccessful. (Def.'s Stmt. ¶ 34; McKee Aff. ¶ 14).

4. JPMC's Responsive Measures

a. Lytle's Access to JPMC Datacenters

After sending the April 27 E-mail, Lytle took a prearranged vacation lasting until May 9, 2007. (Lytle Tr.: 385:16-20; McKee Aff. ¶¶ 16, 18). George and Floumoy, Lytle's friends and both JPMC managers, informed Lytle that shortly after he sent the April 27 E-mail, Morales instructed employees not to discuss the e-mail among themselves or with Lytle. (Compl. at 132; Lytle Tr.: 385:21-386:6, 14-16). The following day, while Lytle was out of the office, George contacted Lytle to tell him that Flournoy had been at a bar where Marino and another employee were speaking about Lytle's e-mail, despite Morales' instruction. (Lytle Tr.: 386:7-16). According to George, Flournoy had informed him that Marino "mentioned how they were looking at [him] as if [he] was the guy who shot up the Virginia Tech campus." (Compl. at 132; see also Compl. at 102; Lytle Tr.: 386:17-21). Lytle was "offended" by Marino's statements (Compl. at 132) and became concerned that JPMC might "lock [him] out or restrict [his] access" to JPMC buildings. (Compl. at 133; Lytle Tr.: 387:3-6).

Based on this suspicion, Lytle attempted to enter several JPMC facilities the following week, while he was still on vacation. (Lytle Tr.: 387:7-10). The first location he tried, on May 1, 2007, was the one at New York Plaza. (Compl. at 95, 101, 133; Lytle Tr.: 387:13-14). Although he was not scheduled to work at that facility that day (Lytle Tr.: 387:22), he had previously had full access to all datacenters when scheduled to work at those facilities. (Lytle Tr.: 387:17-19). However, he found that he was unable to enter the datacenter using his JPMC pass although he could access the building. (Compl. at 95; Lytle Tr.: 387:9-10). Lytle attempted to enter two more JPMC facilities that same week, including the location where he was working at that time, and he could not access the datacenter at either location. (Compl. at 95, 133; Lytle Tr.: 390:2-6).

On May 3, 2007, while Lytle was still on vacation and after he had attempted to enter the JPMC datacenters, McKee and Lytle spoke by telephone about his April 27 E-mail as well as his inability to enter JPMC facilities. (Compl. at 87; Def.'s Stmt. ¶¶ 35-36; McKee Aff. ¶¶ 15-16). After her telephone call with Lytle, McKee learned from Morales that Melleby had suggested that Lytle's access be denied to certain JPMC facilities during his vacation and that she (Morales) had agreed until ERAC could advise what further action should be taken. (Def.'s Stmt. ¶ 37; McKee Aff. ¶ 17). McKee "determined that the restricted access was an unnecessary precaution and [she] took immediate steps to have Lytle's access restored. Lytle was restored to his previous level of [a]ccess within a day of [their] May 3, 2007 call." (McKee Aff. ¶ 18; see also Def.'s Stmt. ¶¶ 38-39; Lytle Tr.: 390:2).

b. Modification of Lytle's 2006 Year-end Performance Evaluation

McKee, Davenport, and Dee, of ERAC and JPMC's human resources department, subsequently conducted an investigation into Lytle's complaints regarding his 2006 year-end performance evaluation, which included speaking with Marino and Jorquera and reviewing the evaluation itself. (Def.'s Stmt. ¶ 40; McKee Aff. ¶¶ 19, 22). They noted that the evaluation's narrative comments section indicated that Jorquera had become Lytle's manager only a few months prior to completing his review, and that it reflected no input from Marino although he had managed Lytle for most of 2006. (Def.'s Stmt. ¶ 41; McKee Aff. ¶¶ 20-21). In speaking with Marino, they confirmed that Jorquera had not solicited feedback from him and he thus had not participated in preparing the review; they then solicited his feedback on Lytle's performance. (Def.'s Stmt. ¶ 42; McKee Aff. ¶ 22, 26). Finally, they noted that Jorquera gave Lytle an overall "Needs Improvement Rating" despite providing favorable feedback and giving him "Meets Expectations" rating in 11 of the 22 skills, goals, and achievement categories; an "Exceeds Expectations" in three of the 22 categories; and a "Needs Improvement" in only two of the 22 categories. (Def.'s Stmt. ¶ 43; McKee Aff. ¶ 24 & Ex. E).

McKee, Davenport, and Dee concluded that the written appraisal portion of the evaluation and the additional input from Marino did not support an overall rating of "Needs Improvement." (Def.'s Stmt. ¶ 44; McKee Aff. ¶ 26). Accordingly, McKee recommended to Gotimer, Lytle's senior manager, that his overall rating be changed to "Meets Expectations." (Def.'s Stmt. ¶ 44; McKee Aff. ¶ 26). Gotimer agreed with this recommendation, and Lytle's 2006 year-end performance evaluation was amended to an overall rating of "Meets Expectations." (Def.'s Stmt. ¶ 46; McKee Aff. ¶ 29 & Ex. F).

Once JPMC modified Lytle's overall performance rating from "Needs Improvement" to "Meets Expectations," he became eligible to receive an increase in his base salary as well as incentive compensation for the 2006 performance year. (Def.'s Stmt. ¶ 47; McKee Aff. ¶ 30 & Ex. G). JPMC offered him a 3 percent salary increase retroactive to February 1, 2007 and a $1,000 bonus for his performance in 2006. (Def.'s Stmt. ¶ 47; McKee Aff. ¶ 30 & Ex. G). The amount of these adjustments was based on what other employees in Lytle's group with comparable year-end performance ratings received. (Def.'s Stmt. ¶ 47; McKee Aff. ¶ 30). However, after being informed of the modification to his 2006 year-end evaluation and the resulting adjustments in his compensation, Lytle refused to speak about the issue with either JPMC management or McKee, who learned that Lytle was "refusing" the proffered raise and bonus. (Jasper Aff. Ex. D; McKee Aff. ¶¶ 31-32). JPMC nevertheless paid the increased compensation to Lytle. (Def.'s Stmt. ¶ 48; McKee Aff. ¶ 32).

c. Investigation into Lytle's Title Change to DC Tech II

McKee also conducted an inquiry into Lytle's concerns as to JPMC's delayed title change from DC Tech I to DC Tech II. (Def.'s Stmt. ¶ 49; McKee Aff. ¶ 33). McKee's investigation revealed that a title change from DC Tech I to DC Tech II resulted in no compensation increase or other term of employment. (Def.'s Stmt. ¶ 50; McKee Aff. ¶ 35). Furthermore, McKee discovered no facts to indicate that the timing of Lytle's title change was related to any discrimination against him on the basis of his race, color, or religion, (Def.'s Stmt. ¶ 51; McKee Aff. ¶ 36).

d. Investigation into Racially Motivated Comments

McKee and Davenport conducted an additional investigation into Lytle's allegations that Marino and another manager, whom McKee later learned was Jorquera, had made inappropriate comments. (Def.'s Stmt. ¶¶ 52-54, 57-59; McKee Aff. ¶ 44). The investigation entailed interviewing Marino and Jorquera as well as several other employees and consultants from Marino and Jorquera's work groups and management chains, including George, David, Pierre-Louis, Flournoy, Melleby, Guillermo, and Arenas. (Def.'s Stmt. ¶ 52; McKee Aff. ¶ 37).

Among the comments McKee and Davenport investigated was Marino's use of the expression "monkeys needing to learn new tricks," directed at his work group. (Def.'s Stmt. ¶ 53; McKee Aff. ¶ 38). Their investigation confirmed that the statement had, in fact, been made. (Pl.'s App. II at 19). Marino acknowledged using the word "monkey" at a meeting but denied using it in the manner alleged by Lytle. (Def.'s Stmt. ¶ 54; McKee Aff. ¶ 39). Marino stated that his use of the word "monkey" was not meant to be offensive or disrespectful and was not directed at any particular individual or group of people. (Def.'s Stmt. ¶ 54; McKee Aff. ¶ 39). Marino asserted that Lytle had taken his comment out of context, as he used the expression to describe both how his group had to "run around" to complete their jobs and the repetitive nature of their work. (Def.'s Stmt. ¶ 54; McKee Aff. ¶ 39). Marino nevertheless acknowledged that he had made a poor choice of words and needed to be more careful in the future. (Def.'s Stmt. ¶ 54; McKee Aff. ¶ 40 & Ex. K; Pl.'s App. II at 20). McKee recommended to Fava, a senior manager, that Marino receive a written warning advising him that he had exercised poor judgment in the workplace and that he must avoid communicating in a way that could be perceived as offensive. (Def.'s Stmt. ¶ 55; McKee Aff. ¶ 41). Fava accepted the recommendation. (Def.'s Stmt. ¶ 55; McKee Aff. ¶ 42). Accordingly, Marino received a written warning that included an admonition that his "[f]ailure to show immediate and sustained improvement could result in further corrective action, up to and including employment termination." (Def.'s Stmt. ¶ 56; McKee Aff. ¶ 42 & Ex. L).

In another inquiry, McKee investigated Lytle's allegation that Marino referred to an individual as a "f@#king dot head" by speaking with Marino who denied making the comment. (Def.'s Stmt. ¶¶ 53, 57; McKee Aff. ¶¶ 38, 43). When McKee asked Lytle for additional information concerning the time and place of Marino making this statement, Lytle did not provide any specific details about the incident (McKee Aff. ¶ 43), and JPMC's papers are silent as to whether the company took any further action.

Finally, McKee and Davenport also conducted an inquiry into the claim Lytle made in the April 27 E-mail that a manager had said of Lytle, "I'm gonna fire that nigga." (Def.'s Stmt. ¶ 58; McKee Aff. ¶ 44). The investigation revealed that an independent contractor told Lytle that she overheard Jorquera use the term, but that Lytle had not actually heard Jorquera use the term or say anything else that he found offensive. (Def.'s Stmt. ¶ 58; McKee Aff. ¶ 44; Lytle Tr. 364; 23). After conducting several interviews with JPMC employees and contractors, McKee and Davenport determined that Jorquera had used inappropriate language in the workplace, and McKee recommended to Fava that Jorquera's employment be terminated. (Def.'s Stmt. ¶¶ 59-60; McKee Aff. ¶¶ 45-46). Fava accepted the recommendation, and Jorquera's employment was terminated as of July 19, 2007. (Def.'s Stmt. ¶ 60; McKee Aff. ¶ 47 & Ex. M). McKee further recommended that Arenas and Guillermo, the two employees who had engaged in the conversation with Jorquera in which the comment was made, receive written reprimands for their failure to maintain JPMC's standards of professional decorum. (Def.'s Stmt. ¶ 61; McKee Aff. ¶ 48). As a result, JPMC issued Arenas and Guillermo written warnings in July, 2007. (Def.'s Stmt. ¶ 61; McKee Aff. ¶ 48 & Ex. N).

5. Lytle's Termination from JPMC

a. Lytle's Refusal to Affirm the JPMC Code of Conduct

JPMC maintains a Code of Conduct prohibiting discrimination or harassment on the basis of, among other things, race, color, religion, or religious affiliation. (Def.'s Stmt. ¶¶ 1-2; Denis-Roman Aff. ¶ 3 & Ex. A § 2). The Code of Conduct directs employees to report violations involving harassment or discrimination either to their manager, to ERAC, or to their "HR Business Partner." (Def.'s Stmt. ¶ 3; Denis-Roman Aff. ¶ 3 n.1 & Ex. A § 1.5). JPMC's Employment Opportunity and Affirmative Action Policy and its Harassment-free Workplace Policy further prohibit harassment or discrimination, and both provide protections against retaliation for employees who report violations. (Def.'s Stmt. ¶¶ 4-6; Denis-Roman Aff. ¶ 4 & Exs. B-C).

JPMC's Code of Conduct requires every JPMC employee to "affirm, either in writing or electronically, that [the employee has] read and understood the Code and that [the employee] will comply with it." (Def.'s Stmt. ¶ 76; Denis-Roman Aff. ¶ 9 & Ex. A § 1.7.). The Code of Conduct also requires all employees to reaffirm their understanding of and compliance with the Code of Conduct on an annual basis, or at other times when changes are made to it. (Def.'s Stmt. ¶ 77; Denis-Roman Aff. ¶ 9 & Ex. A § 1.7). Affirmation of the Code of Conduct is mandatory and is a term and condition of employment at JPMC. (Def.'s Stmt. ¶ 78; Denis-Roman Aff. ¶ 10).

Lytle affirmed the Code of Conduct in 2005 and 2006 without objection. (Def.'s Stmt. ¶ 79; Denis-Roman Aff. ¶ 11 & Exs. E-F). In 2007, JPMC asked employees to affirm the Code of Conduct by April 20, 2007. (Def.'s Stmt. ¶ 80; Denis-Roman Aff. ¶ 12). When JPMC first circulated the Code of Conduct to employees in February, 2007, Lytle told several other employees that he planned to refuse signing it (Lytle Tr.: 110:19-25), although he had not yet informed upper management. (Lytle Tr.: 111:2-4). Lytle testified that, at the time, he had explained to his co-workers his logic in not signing the Code of Conduct as: "Every time JPMorgan - every time management attempted to do something to sabotage [his] work or [him]self or defame [him] in front of [his] coworkers, [he] always found out." (Lytle Tr.: 112:18-21).

Lytle did not affirm the Code of Conduct by the April 20, 2007 deadline. (Def.'s Stmt. ¶ 81; Lytle Tr. 109:10; Denis-Roman Aff. ¶ 12). JPMC's Corporate Secretary sent at least ten emails to Lytle regarding his obligation and failure to affirm the 2007 Code of Conduct between May 15, 2007 and August 15, 2007. (Def.'s Stmt. ¶ 82; Denis-Roman Aff. ¶¶ 13-14 & Exs. G-P; Melleby Aff. ¶¶ 21-22). GTI Risk and Security Management, a JPMC unit that monitors compliance with the Code of Conduct for JPMC technology groups including Lytle's, also sent six emails to Lytle during this same time period reminding him of his need to affirm the Code of Conduct. (Def.'s Stmt. ¶ 83; Melleby Aff. ¶ 22 & Exs. E-J; Denis-Roman Aff. ¶ 15). Despite this outreach, Lytle continually refused to affirm the Code of Conduct. (Lytle Tr.: 109:10, 110:17).

As of August 2007, Lytle was one of only 10 people in CTO, out of an aggregate total of 14,354 employees, who had not affirmed the Code of Conduct, and the other nine noncompliant employees were either on leave of absence or were scheduled to depart JPMC. (Def.'s Stmt. ¶ 84; Denis-Roman Aff. ¶ 16 & Ex. Q). In his opposition papers, Lytle contends that there were 439 JPMC employees worldwide who had not affirmed the Code of Conduct, and he was the only employee terminated. (Pl.'s App. I at 7; Pl.'s App. II at 9). In support of this contention, he claims to have consulted with "one of [his] contacts at JPMC" to determine whether any of the other 439 JPMC employees still worked at the company, and to have learned that four individuals were still employed by JPMC: Paul Fitzgerald, Donna White, Donna Williams, and Eduardo F. Suarez. (Pl.'s App. I at 6; Pl.'s App. II at 10). JPMC has, however, submitted evidence refuting this proposition by showing that three of these four employees did affirm the Code of Conduct (Affidavit of Liang Nardelli in Further Support of Motion for Summary Judgment, sworn to July 8, 2011 ("Nardelli Aff.") (Dkt. No. 95), ¶¶ 4-6 & Exs. A-C). The fourth, Donna Williams, was terminated by JPMC on January 30, 2007 and her last day at the company was March 31, 2007. (Reply Affidavit of Magaly Denis-Roman in Further Support of Motion for Summary Judgment, sworn to July 8, 2011 ("Denis-Roman Reply Aff.") (Dkt. No. 97), ¶¶ 2-3 & Ex. A). Accordingly, she did not affirm the Code of Conduct. (Id. at ¶ 4).

b. Lytle's Other Relevant Communications Prior to His Termination

On June 24, 2007, Lytle sent an email to several individuals at JPMC, including Melleby, McKee, Davenport, and Gotimer ("June 24 E-mail"). (Def.'s Stmt. ¶ 74; Jasper Aff. Ex. D; Lytle Tr.: 160:8-9). This e-mail stated: "I made it perfectly clear to [Melleby] and others that I no longer want to work here[.] [H]aving said that, I will never quit a job." (Def.'s Stmt. ¶ 74; Jasper Aff. Ex. D). The e-mail also stated that he "was inviting [JPMC] to terminate [him], but [he] was not going to quit" (Lytle Tr.: 163:19-21), suggesting that although he was unhappy at JPMC, he was aware that "the economy wasn't the best, I have a mortgage," and stating, "I'm not a quitter, I'm not quitting." (Lytle Tr.: 162:9-20).

Also in June, 2007, Lytle notified Melleby that he no longer sat at his computer or logged into Lotus Notes, the e-mail application through which he would receive assignments. (Compl. at 127; Def.'s Stmt. ¶ 75; Lytle Tr.; 181:18-182:6, 183:4-5). Lytle reasoned that he would not check his e-mail as a way to convey to JPMC: "[Y]ou're getting on my nerve; I'm going to get on your nerve." (Lytle Tr.: 183:10-11). Nevertheless, Lytle testified at his deposition that he always read emails from Melleby. (Lytle Tr.: 184:6-8). However, instead of receiving his assignments through the Lotus Notes system, Lytle would receive notifications of his assignments through Henry and Harris, co-workers who had access to the assignment system. (Compl. at 127; Lytle Tr.: 182:14-183:5). This enabled Lytle to complete his work assignments (Compl. at 127; Lytle Tr.: 183:20-184:1) so that, Lytle believed, if JPMC were to terminate him it would be "for something petty." (Lytle Tr.: 189:20).

c. Lytle's Notice of Termination

On August 16, 2007, JoAnn Brown from JPMC's Human Resources group contacted Lytle and informed him that his refusal to affirm the Code of Conduct could result in his termination. (Compl. at 50; Def.'s Stmt. ¶¶ 86-87). Lytle told JPMC that he "wasn't going to sign-off on the process." (Compl. at 50, 61, 125; Def.'s Stmt. ¶¶ 85-86). According to Lytle's September 17, 2007 submission to the EEOC, Lytle refused to affirm the Code of Conduct "because that very same process was victimizing [him], due to the fact that [JPMC] didn't enforce it when it came to [his] managers with regard to his case against him." (Compl. at 50, 61, 125; see also Compl. at 63-66, 72-74, 106-07 (referring to Lytle's perceived breaches of confidentiality provisions provided in Section 3.4 of Code of Conduct)). Brown advised Magaly Denis-Roman from JPMC's human resources department of Lytle's statements to her, and Denis-Roman determined that Lytle would be terminated as a result and advised Melleby of the determination. (Def.'s Stmt. ¶¶ 87-88; Denis-Roman Aff. ¶ 21). On August 17, 2007, Melleby advised Lytle that his employment with JPMC was being terminated because of his refusal to affirm the Code of Conduct. (Def.'s Stmt. ¶ 89; Melleby Aff. ¶ 25 & Ex. K).

6. Lytle's EEOC Complaint

On or about March 26, 2007, almost five months before his termination, Lytle filed charges of discrimination against JPMC with the EEOC. (Compl. at 4-5, 9-30; Def.'s Stmt. ¶ 92). He amended these charges on or about June 13, 2007 and September 17, 2007. (See Compl. at 31-60, 61-62, 125-139; Def.'s Stmt. ¶ 93). On or about August 14, 2008, the EEOC notified Lytle that it would not pursue claims on his behalf, issuing him a No Probable Cause Determination and a Right to Sue letter. (Compl. at 6-8; Lytle Tr.; 402:17-19; Def.'s Stmt. ¶ 94). Lytle then brought a lawsuit in this District against the EEOC, Lytle v. U.S. Equal Employment Opportunity Commission, No. 09 Civ. 9308 (RJS) (RLE). (See Lytle Tr.: 402:22). He alleged that the EEOC had not conducted a complete investigation into his claims. (Lytle Tr.: 402:25-404:5). The Honorable Richard J. Sullivan dismissed the lawsuit having determined that the EEOC was entitled to sovereign immunity. (Lytle Tr.: 404:8, 11-17).

B. Procedural History

Lytle filed the Complaint in this action on November 5, 2008. (Dkt. No. 1; Def.'s Stmt. ¶ 95). Lytle brings claims under Title VII, the NYSHRL, and the NYCHRL based on his allegations that he was subjected to discriminatory conduct resulting in the termination of his employment, failure to promote him, unequal terms and conditions of employment, and retaliation. (Compl. ¶¶ 1, 3-4). In his Complaint, Lytle demands a damage award in the amount of $47 million.

Following a period for discovery and an unsuccessful settlement conference, by Order dated March 4, 2011, the Honorable Deborah A. Batts referred this motion to me for a Report and Recommendation (Dkt. No. 35). On April 21, 2011, JPMC moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. As noted in the Memorandum Order dated September 1, 2011 (Dkt. No. 80), JPMC filed on the Court's Electronic Filing System redacted versions of its submissions in support of the summary judgment motion and provided the Court with unredacted versions of the papers for in camera review. (Dkt. Nos. 43-52). On April 28, 2011, having reviewed JPMC's submissions, I ordered JPMC to show cause why the redacted version of its papers should not be unsealed. (Dkt. No. 54). On May 13, 2011, I held a conference on the question, and further directed JPMC to propose what information it believed should be redacted from the papers Lytle submitted in his opposition to JPMC's summary judgment motion. After considering JPMC's arguments in support of the redactions (Dkt. Nos. 55-59) and those made by Lytle in opposition (see Transcript, dated May 13, 2011 (Dkt. No. 68), at 30-48), I concluded that all of the documents in support of or opposition to the motion should be unsealed in their entirety, except for those sections that should remain redacted pursuant to Rule 5.2 of the Federal Rules of Civil Procedure. Accordingly, on September 15, 2011, JPMC filed its papers in support of its motion along with its reply papers. (Dkt. Nos. 81-89, 95-98). By Order dated September 19, 2011 ("September 19 Order") (Dkt. No. 102), I directed the Clerk of the Court to docket Lytle's opposition papers (Dkt. Nos. 100-02).

As noted in the September 19 Order, as well as in the Court's Order dated July 26, 2011 (Dkt. No. 77), Lytle has submitted several other documents related to the motion for summary judgment as sur-replies, including Plaintiff's Supplemental Papers Opposing Summary Judgment dated June 26, 2011; Supplemental Papers Opposing Summary Judgment dated July 13, 2011, with exhibits; and Supplemental Papers Opposing Summary Judgment dated July 21, 2011, with exhibits (collectively, the "Supplemental Papers"). The Supplemental Papers were submitted without leave of the Court or consent from JPMC. The Court deferred its decision as to whether to consider these additional submissions and what weight, if any, to give them in light of Lytle's prior submissions. By "Motion for Reconsideration" dated September 26, 2011 (undocketed), Lytle reiterated his position that the Supplemental Papers should be considered despite his unfamiliarity and noncompliance with procedural rules.

II. DISCUSSION

A. Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is warranted where the moving party shows that "there is no genuine dispute as to any material fact" and that it is "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). An issue of fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.; see also, e.g., Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006). To prove the presence or absence of a genuine dispute over any material fact, the parties must cite to "particular parts of materials in the record," including, among other things, depositions, documents, affidavits, and declarations. Fed. R. Civ. P. 56(c)(1)(A).

In ruling on a summary judgment motion, a court must resolve ambiguities and draw factual inferences in favor of the nonmoving party. Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)); Aetna Cas. & Sur. Co. v. Aniero Concrete Co., 404 F.3d 566, 574 (2d Cir. 2005). Furthermore, "[i]t is a settled rule that '[c]redibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment." McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (quoting Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997)). "The function of the district court in considering the motion for summary judgment is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists." Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010) (citation omitted). In short, the court is confined to "issue-finding," not "issue-resolution." Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994).

The moving party bears the initial burden of establishing that there are no genuine issues as to any material facts. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). If the moving party meets its initial burden, the nonmoving party must then cite specific facts in the record to establish that there are genuine issues of material fact requiring a trial. See Wright v. Coughlin, 132 F.3d 133, 137 (2d Cir. 1998) (citing Celotex, 477 U.S. at 322). To defeat summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "If there is any evidence in the record that could reasonably support a jury's verdict for the nonmoving party, summary judgment must be denied." Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315-16 (2d Cir. 2006) (quotation marks and citation omitted). In addition, "circumstantial evidence may be . . . sufficient to raise a genuine issue of material fact precluding the grant of summary judgment." Gayle v. Gonyea, 313 F.3d 677, 684 (2d Cir. 2002) (citation omitted).

Courts must be "especially cautious" when deciding whether to grant summary judgment in discrimination cases because direct evidence of an employer's intent to discriminate is rare. Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999). "[A]ffidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Gallo, 22 F.3d at 1224. "Nonetheless, summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact." Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006) (quotation marks and citations omitted); Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) ("[T]he salutary purposes of summary judgment—avoiding protracted, expensive and harassing trials—apply no less to discrimination cases than to . . . other areas of litigation.") (quotation marks and citation omitted); Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) ("summary judgment may be appropriate even in the fact-intensive context of discrimination cases").

A pro se litigant's pleadings should be read liberally and interpreted "to raise the strongest arguments that they suggest," McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). However, proceeding pro se does not relieve a litigant from the usual requirements of summary judgment. Tavares v. City of New York, No. 08 Civ. 3782 (PAE) (JCF), 2011 WL 5877550, at *4 (S.D.N.Y. Oct. 17, 2011) (Report & Recommendation) (citing Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995)), adopted by, 2011 WL 5877548 (S.D.N.Y. Nov 23, 2011). Rule 56 requires that a party opposing the motion for summary judgment support its argument by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations." Fed. R. Civ. P. 56(c)(1)(A). An affidavit or a declaration "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). Accordingly, "unsupported allegations do not create a material issue of fact." Weinstock, 224 F.3d at 41; see also Fed. R. Civ. P. 56(e)(3). Thus, a pro se party's "'bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Lee, 902 F. Supp. at 429 (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)); Kadosh v. TRW, Inc., No. 91 Civ. 5080 (PKL), 1994 WL 681763, at *5 (S.D.N.Y. Dec. 5, 1994) ("[t]he work product of pro se litigants should be generously and liberally construed, but [the litigant's] failure to allege either specific facts or particular laws that have been violated, renders his attempt to oppose defendants' motion ineffectual").

Finally, the Court's review of the record is limited to facts that would be admissible at trial. For example, Rule 56(c) states that affidavits in support of or against summary judgment shall "set out facts that would be admissible in evidence." Fed. R. Civ. P. 56(c)(4). Consequently, the Court may consider only admissible evidence in ruling on a motion for summary judgment, Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997) (citations omitted).

In this case, despite Lytle's repeated reference to relevant audio recordings in his Complaint and in his opposition papers (see, e.g., Compl. at 42, 96, 100-01, 103, 115-16; Pl.'s Mem. at 2; Pl.'s App. I at 2) and assertions that he would "typ[e] up portion[s] of [his] recorded conversation[s]" for distribution (Compl. at 117), neither the Complaint nor any other part of the record includes transcriptions of audio recordings. Accordingly, even construing Lytle's submissions liberally, the Court cannot rely on evidence that has not been provided to it, specifically audio recordings of any conversations. Fed. R. Civ. P. 56(c).

B. Discrimination Claims

1. Applicable Standards

Title VII prohibits an employer from discriminating against any employee with respect to "compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Where discrimination claims are based upon circumstantial evidence as Lytle's are here, the court analyzes the allegations under the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ("McDonnell Douglas"). Accord St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) ("St. Mary's"); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) ("Burdine"). Under this standard, the initial burden lies with the plaintiff, who must establish a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802. A prima facie case exists where four factors are satisfied: (1) the plaintiff is a member of a protected class; (2) the plaintiff's job performance was satisfactory; (3) the plaintiff suffered an adverse employment action; and (4) the action occurred under conditions giving rise to an inference of discrimination. See Demoret v. Zegarelli, 451 F.3d 140, 151 (2d Cir. 2006) (citing McDonnell Douglas, 411 U.S. at 802).

While courts have read into Title VII and the NYSHRL a requirement that the adverse employment action be material, in the context of NYCHRL claims, a plaintiff does not need to demonstrate that he was subject to a materially adverse employment action. Williams v. Regus Mgmt. Group, LLC, No. 10 Civ. 8987 (SAS), 2011 WL 6073560, at *8 (S.D.N.Y. Dec. 6, 2011). Rather, "in order to make out the third prong of a prima facie case of discrimination under the NYCHRL, a plaintiff must simply show that she was treated differently from others in a way that was more than trivial, insubstantial, or petty. The fourth prong of the prima facie case is satisfied if a member of a protected class was treated differently than a worker who was not a member of that protected class." Id. (describing development of NYCHRL case law since 2005); see also Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009) (federal and state civil rights law are "floor below which the [NYCHRL] cannot fall") (citing the Local Civil Rights Restoration Act of 2005, N.Y.C. Local Law No. 85 (2005), § 1) (emphasis in original). Accordingly, to determine whether Lytle's NYCHRL claims survive summary judgment, the Court should conduct an independent analysis. See Loeffler, 582 F.3d at 278. "This means that, at least in the retaliation context, no type of challenged conduct may be categorically rejected as nonactionable under the NYCHRL." Williams, 2011 WL 6073560, at *7 (quotation marks and alterations omitted) (citing Sealy v. Hertz Corp., 688 F. Supp. 2d 247, 258 (S.D.N.Y. 2009)). Nevertheless, in order to establish liability, the plaintiff must show "by a preponderance of the evidence that she has been treated less well than other employees" because of membership in a protected class. See Sealy, 688 F. Supp. 2d at 258 (citation omitted). Moreover, "although claims under the NYCHRL are more liberally construed than claims under Title VII and the [NYSHRL], 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." Williams, 2011 WL 6073560, at *6 (quotation marks and citations omitted).

Under Title VII, a prima facie case of discrimination creates a "legally mandatory, rebuttable presumption" of discrimination, Burdine, 450 U.S. at 254 n.7. If a plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to rebut it by providing a "legitimate, nondiscriminatory reason" for the adverse employment action. Id. at 254; see McDonnell Douglas, 411 U.S. at 802. If the defendant is successful, the burden shifts back to the plaintiff "to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Burdine, 450 U.S. at 253; see also McDonnell Douglas, 411 U.S. at 804-05. Accordingly, a plaintiff opposing a summary judgment motion must produce "sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false," Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (citations omitted), and "that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Stern v. Trustees of Columbia Univ. in the City of New York, 131 F.3d 305, 312 (2d Cir. 1997).

While the burden of production shifts between the parties, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." St. Mary's, 509 U.S. at 507 (quoting Burdine, 450 U.S. at 253) (alteration in original). This same framework applies to employment discrimination claims under the NYSHRL and NYCHRL. See Ferraro v. Kellwood Co., 440 F.3d 96, 99-100 (2d Cir. 2006); Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n.1 (2d Cir. 2000) ("Our consideration of claims brought under the state and city human rights laws parallels the analysis used in Title VII claims.") (citing Leopold v. Baccarat, Inc., 174 F.3d 261, 264 n.1 (2d Cir. 1999) (New York state law); Landwehr v. Grey Adver. Inc., 622 N.Y.S.2d 17, 18 (N.Y. App. Div. 1st Dep't 1995) (New York City law)).

2. Claims of Discrimination During Employment

The heart of Lytle's Complaint is that he was terminated for reasons relating to his race, color, and religion. Additionally, he alleges that JPMC discriminated against him during his employment by subjecting him to unequal conditions of employment, such as by (1) allowing Jorquera to complete his 2006 year-end review without consultation with Marino, and initially giving him an overall "Needs Improvement" rating (eventually modified upon review); (2) delaying the change of his job title from DC Tech I to DC Tech II; and (3) assigning him to work in a cubicle with two other employees, rather than one other employee, which afforded him limited working space. In reviewing Lytle's submissions liberally, as he is a pro se litigant, and in the light most favorable to him, as he is also the non-moving party, the record would not permit a reasonable jury to find that Lytle has suffered an adverse employment action under circumstances that give rise to an inference of discrimination. Thus, he cannot establish the third prong of a prima facie case of discrimination on any charge other than his termination claim.

Under Title VII, and the corresponding NYSHRL standard, an adverse employment action is generally characterized as a "materially adverse change in the terms and conditions of employment" and may include "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation." Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir. 2006); see also La Grande v. DeCrescente Distrib. Co., 370 F. App'x 206, 211 (2d Cir. 2010) ("[a]n actionable adverse employment action is 'a materially significant disadvantage with respect to the terms of [plaintiff's] employment'") (quoting Williams v. R.H. Donnelley. Corp., 368 F.3d 123, 128 (2d Cir. 2004) (alterations in original)).

The circumstances surrounding Lytle's initial 2006 year-end review reflect disorganization (in Jorquera being assigned to review Lytle despite their limited contact and Marino's supervision of Lytle for most of that year) and sloppiness (in Jorquera giving Lytle an overall rating of "Needs Improvement" despite attributing that rating to only two individual categories in comparison to a "Meets Expectation" rating in 11 categories and an "Exceeds Expectation" rating in three, and the mostly favorable comments in the narrative portion of the evaluation). (McKee Aff. ¶¶ 21-25 & Exs. E-F). However, there is no evidence that these errors had an adverse effect on Lytle. Although "[a] negative employment evaluation, if accompanied by negative consequences, such as demotion, diminution of wages, or other tangible loss, may constitute an adverse employment action," Siddiqi v. New York City Health & Hospitals Corp., 572 F. Supp. 2d 353, 367 (S.D.N.Y. 2008), "negative evaluations, standing alone without any accompanying adverse results, are not cognizable." Bennett v. Watson Wyatt & Co., 136 F. Supp. 2d 236, 247 (S.D.N.Y. 2001); see also Smalls v. Allstate Ins. Co., 396 F. Supp. 2d 364, 371 (S.D.N.Y. 2005) ("being yelled at, receiving unfair criticism, receiving unfavorable schedules or work assignments . . . do not rise to the level of adverse employment action . . . because they [do] not have a material impact on the terms and conditions of Plaintiff's employment") (alterations in original); Durant v. Nynex, 101 F. Supp. 2d 227, 233 (S.D.N.Y. 2000) ("Negative evaluations alone, without any accompanying adverse result, however, are not cognizable"). While Lytle expressed frustration as a result of his 2006 year-end review (see, e.g., McKee Aff. Ex. D (April 27 E-mail)), JPMC amended his review and provided him with the corresponding benefits retroactively such that he did not suffer any adverse action recognized under Title VII. See Lawrence v. Mehlman, 389 F. App'x 54, 56 (2d Cir. 2010) (affirming summary judgment in favor of defendant where reprimand was removed from plaintiff's file after six weeks with no evidence of any consequences). Moreover, there is no evidence to suggest Lytle suffered from his supervisors' actions more than any other DC Tech at JPMC, which is necessary to establish a claim under the NYCHRL. Indeed, Lytle concedes that Jorquera told him at his 2006 year-end review that Morales and Soto had failed to give Jorquera any input as to Guillermo and Arenas as well as to Lytle. (Compl. 24).

A similar conclusion follows as to Lytle's complaint that there was a delay in adjusting his title to DC Tech II. First, under the applicable Title VII standard, because there was no tangible benefit associated with the title change, Lytle did not suffer any materially adverse consequence of the failure to change his status, which JPMC eventually did effectuate. See, e.g., Bobbitt v. New York City Health and Hospital Corp., No. 08 Civ. 10765 (SAS), 2009 WL 4975196, *9 & n.130 (S.D.N.Y. Dec. 22, 2009) (summary judgment granted to defendant employer on discrimination claim where plaintiff alleged only delay in payment to which plaintiff was entitled) (citing cases). Second, under the NYCHRL standard, Lytle ultimately did receive the title change and thus was not treated differently from any other employee. Cf. Williams, 2011 WL 6073560, at *13 (finding issue of fact for jury under NYCHRL where white employees permitted to work in location plaintiff requested but was denied). On this point, the Court does not credit any of the comments that Lytle's colleagues purportedly shared with him reflecting any JPMC managers or other executives—including Soto, Marino, or Jorquera—suggesting that Lytle would not be getting a "promotion," because Lytle has not provided any admissible evidence to prove these comments were in fact made and because they are belied by the fact that Lytle did receive the change in title. See Fed. R. Civ. P. 56(c) (non-moving party must present admissible evidence to refute motion for summary judgment).

Finally, Lytle's seating assignment does not rise to the level of a materially adverse employment action. "Everyday workplace grievances, disappointments, and setbacks do not constitute adverse employment actions within the meaning of Title VII." La Grande, 370 F. App'x at 211 (citing Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)). While it may be true that JPMC could have better utilized its facilities to avoid cramped working spaces, perhaps by using nearby cubicles that were used for storage purposes, the Court should not act as a "'super personnel department' that second guesses employers' business judgments." Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001) (citation omitted). Likewise, considering his assignment in light of the NYCHRL, the evidence does not suggest that Lytle was targeted for an uncomfortable work space. Indeed, Lytle's entire group worked in a shared cubicle space, and Guillermo and Arenas—neither of whom is African-American—were forced into the same three-person cubicle arrangement as Lytle. (Melleby Aff. ¶¶ 14-15). Accordingly, none of Lytle's claims based on his treatment during his employment supports a discrimination claim under federal, state, or local law and JPMC is entitled to summary judgment on these claims.

3. Claim of Discriminatory Termination

JPMC's termination of Lytle requires a separate inquiry from his claims of discriminatory treatment during his employment, because termination qualifies as an adverse employment action thereby establishing the third prong of his discrimination claim. JPMC contends, however, that Lytle has failed to demonstrate the existence of a factual question as to whether the circumstances surrounding JPMC's termination of Lytle evidences a discriminatory intent necessary to establish the fourth prong of his discrimination claim. (Def.'s Mem at 17 (citation omitted)). JPMC argues that "the unrefuted -- and irrefutable -- evidence shows that Lytle's termination was based on his willful refusal to comply with a fundamental JPMC requirement applicable to all JPMC employees," specifically his failure to affirm the Code of Conduct. (Def.'s Mem. at 20). JPMC cites to the "considerable lengths" it went "to retain Lytle as an employee," including more than a dozen e-mail reminders of his obligation to affirm the Code of Conduct and a telephone call from JoAnn Brown on behalf of JPMC's human resources group, before Lytle finally indicated his "willful, insubordinate and fundamentally inexcusable refusal. . . to comply with a basic JPMC employment requirement." (Def.'s Mem. at 17-18 & n.5). Even when reviewing the facts in the light most favorable to Lytle, his failure—indeed his refusal—to comply with a requirement of his employment was a legitimate, nondiscriminatory reason for his termination as a matter of law. See Feinerman v. T-Mobile USA, No. 08 Civ. 3517 (SAS), 2010 WL 331692, at *11 & n.161 (S.D.N.Y. Jan. 28, 2010) (refusal to attend conferences defendant employer required of employees in plaintiff's position legitimate ground for termination) (collecting cases).

Because JPMC has stated a legitimate, nondiscriminatory reason for terminating him, to prevail on a discrimination claim, Lytle must show that JPMC's explanation for his termination is merely a pretext for discrimination. To establish pretext, Lytle must "'either directly . . . persuad[e] the court that a discriminatory reason more likely motivated [JPMC] or indirectly . . . show[] that [JPMC's] proffered explanation is unworthy of credence.'" Weiss v. JP Morgan Chase & Co., 332 F. App'x 659, 661 (2d Cir. 2009) (quoting Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1113 (2d Cir. 1988)); see also Weinstock, 224 F.3d at 42 ("The Plaintiff must produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the [defendant] were false, and that more likely than not [discrimination] was the real reason for the [employment action].") (quotation marks and citation omitted). Lytle has failed to offer evidence to support a finding that either a discriminatory reason motivated JPMC to terminate him, or that JPMC's proffered reason is "unworthy of credence."

First, the record contains no evidence from which a reasonable jury could infer that Lytle was terminated under circumstances giving rise to racial discrimination. Rather, as described above, the actions that Lytle contends establish discrimination on the part of JPMC are too vague and conclusory to establish that JPMC was motivated by discrimination based on Lytle's race or color. For example, even the most offensive comment related to his race, Jorquera's use of the term "nigga," does not suggest a discriminatory motivation underlying Lytle's termination because Jorquera did not have a role in Lytle's termination. Cf. Rose v. New York City Bd. of Educ., 257 F.3d 156, 162 (2d Cir. 2001) (finding discriminatory motive where comments were made to plaintiff "on more than one occasion by her immediate supervisor, who had enormous influence in the decision-making process"). JPMC terminated Jorquera's employment as of July 19, 2007 (McKee Aff. ¶ 47 & Ex. M), which demonstrates not only that Jorquera could not have played a role in the decision to terminate Lytle on August 16, 2007 (Denis-Roman Aff. ¶¶ 20-21) but also that JPMC took Lytle's complaints seriously.

Second, Lytle attempts to discredit JPMC's cited reason for his termination by comparing the company's decision to terminate him for refusal to affirm the Code of Conduct with its alleged act of allowing other employees in a similar position to remain employed. (Pl.'s App. I at 6-7; Pl.'s App. II at 9-10). However, the record does not support the comparison Lytle attempts to draw between himself and other JPMC employees whom JPMC did not terminate for failure to affirm the Code of Conduct. (Id.). In support of his comparison, Lytle points to a JPMC e-mail dated August 9, 2007 (Pl.'s App. II at 9) as evidence that, as of that date, 439 JPMC employees whom JPMC asked to affirm the Code of Conduct in February or March, 2007 had not done so. Lytle then contends that he asked "an old colleague to verify how many of these individuals were still working for [JPMC] some 3 1/2 years later" by providing this individual with "quite a few names" that had appeared on the list of 439 employees. (Pl.'s App. II at 10). Lytle claims that this search revealed that "ALL" of these employees still worked at JPMC, and he specifically refers to three individuals who had not affirmed the Code of Conduct as of the date of Lytle's termination. (Id. (emphasis in original)).

The Second Circuit has counseled that "Rule 56 requires a motion for summary judgment to be supported with affidavits based on personal knowledge, and a hearsay affidavit is not a substitute for the personal knowledge of a party." Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988) (citations omitted). Here, Lytle submits and relies on a document that was apparently generated by "an old colleague" from JPMC, which is inadmissible hearsay. (Pl.'s App. II at 10). JPMC, on the other hand, has provided credible evidence showing that the three employees referred to in Lytle's submission ultimately did affirm the Code of Conduct (see Nardelli Aff. ¶¶ 4-6 & Exs. A-C), a point that Lytle has not disputed. Additionally, JPMC has presented evidence that the fourth employee Lytle names, Donna Williams, had received notice of her termination on January 30, 2007—prior to JPMC asking employees to affirm the Code of Conduct—and her final day of work was March 31, 2007. (Denis-Roman Reply Aff. ¶¶ 2-3 & Ex. A).

Lytle does not counter this evidence in his opposition papers but in the Supplemental Papers dated July 21, 2011, after JPMC had submitted its reply papers. The Court need not consider Lytle's Supplemental Papers, which function as an unauthorized sur-reply. See, e.g., Kapiti v. Kelly, No. 07 Civ. 3782 (RMB) (KNF), 2008 WL 754686, at *1 n.1 (S.D.N.Y. Mar. 12, 2008) ("Allowing parties to submit surreplies is not a regular practice that courts follow, because such a procedure has the potential for placing a court in the position of refereeing an endless volley of briefs.") (citation and quotation marks omitted). However, because any distinction between JPMC's treatment of Lytle and other employees who also failed to affirm the Code of Conduct is essential to his termination claim, I will consider Lytle's Supplemental Papers as they relate to Donna Williams and will do so to demonstrate that a consideration of Lytle's unauthorized sur-reply, even when viewed in the light most favorable to him, does not raise a triable issue of fact as to JPMC's treatment of Donna Williams vis-à-vis Lytle. Cf. Woodruff v. Nat'l R.R. Passenger Corp., No. 09 Civ. 1709 (HB), 2009 WL 4930574, at *3 n.2 (S.D.N.Y. Dec. 21, 2009) (considering a sur-reply "only . . . to demonstrate that [a pro se] Plaintiff's claims are time-barred even when extending him the greatest possible leeway on a procedural violation").

In his Supplemental Papers, Lytle contends that he "reach[ed] out to another JPMC employee concerning Ms. Williams' termination date[] [and] was told by an HR representative, that there is no provision in the Code of Conduct policy that would justify Ms. Williams being given a pass on the Code of Conduct training solely because she was given a future termination date." (Supplemental Papers dated July 21, 2011 (Dkt. No. 120), at 2). As noted, Lytle's invocation of this conversation—even if he had provided the Court with an authenticated transcript of its recording, which he did not—does not satisfy the requirement of Rule 56(c)(4) that "[a]n affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." As presented to the Court, this conversation amounts to nothing more than inadmissible hearsay. See, e.g., Estate of Hamilton v. City of New York, 627 F.3d 50, 54 (2d Cir. 2010) (affirming district court's refusal to consider hearsay when offered in opposition to motion for summary judgment).

Separate and apart from the evidentiary support for JPMC's argument is the fact that Lytle has not shown that any of these employees expressly refused to affirm the Code of Conduct as he did. (See Compl. at 50, 61, 125; Lytle Tr.: 109:10, 110:17). Rather, as of August, 2007, JPMC appears to have been actively seeking employee affirmations through e-mails like those Lytle received as well as "by conducting final affirmations follow-up with their managers" (Pl.'s App. II at 9), efforts which were apparently successful given that the three employees Lytle names, other than Donna Williams, ultimately did affirm the Code of Conduct. Thus, on the record presented, no reasonable jury could conclude that the legitimate and non-discriminatory reason for his termination—failure to affirm the Code of Conduct—was pretextual. Accordingly, JPMC is entitled to summary judgment on Lytle's termination claim

C. Hostile Work Environment Claim

The Court also liberally construes Lytle's factual allegations, specifically those allegations concerning the period prior to his termination, to constitute a hostile work environment claim. To establish a claim of hostile work environment under Title VII, a plaintiff must prove that "the workplace is permeated with discriminatory intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Kaytor, 609 F.3d at 546 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)) (emphasis in original and quotation marks omitted). Furthermore, there must be a basis for imputing the harassment to the plaintiff's employer. Id. (citations omitted).

A court considering a hostile work environment claim examines "all the circumstances," including "the frequency of the discriminatory conduct; its severity; [and] whether it is physically threatening or humiliating, or a mere offensive utterance . . . . " Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000) (quoting Harris, 510 U.S. at 23). Generally, "[i]solated incidents . . . will not suffice to establish a hostile work environment unless they are extraordinarily severe." Kaytor, 609 F.3d at 547; see also Alfano v. Costello, 294 F.3d 365, 376 (2d Cir. 2002) ("the twelve incidents cited by [plaintiff], taken together, [we]re insufficient as a matter of law to meet the threshold of severity or pervasiveness required for a hostile work environment"); Williams v. Cnty. of Westchester, 171 F.3d 98, 100 (2d Cir. 1999) (plaintiff must show "more than a few isolated incidents" and that "evidence solely of sporadic" discrimination does not suffice) (quotation marks and citation omitted). Nevertheless, "[s]everal federal district courts, as well as the New York Appellate Division, First Department, but not the New York Court of Appeals, have concluded that less egregious conduct than that required under Title VII . . . may support a hostile work environment claim under the [NY]CHRL." Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 724 n.10 (2d Cir. 2010) (quotation marks, alterations, and citations omitted).

As the Court reads Lytle's Complaint and opposition papers, any hostile environment claim relates to two statements made by Marino and one by Jorquera. While Lytle was "justifiably offended" by Marino's racially-charged comments and by Jorquera's use of the term "nigga" in reference to Lytle, "the mere utterance of an epithet which engenders offensive feelings in a employee" does not rise to the level of implicating Title VII. Murray v. Visiting Nurse Servs. of N.Y., 528 F. Supp. 2d 257, 279 (S.D.N.Y. 2007) (no finding of hostile work environment despite certain employees of defendant repeatedly referring to group including heterosexual male plaintiff in terms used to describe women) (alterations and citations omitted).

Rather, these comments, while plainly offensive, were isolated incidents in contrast to the cases where summary judgment is denied because a plaintiff has alleged regular and repeated use offending statements. See, e.g., Pozo v. J & J Hotel Co., L.L.C., No. 06 Civ. 2004 (RCC) (AJP), 2007 WL 1376403, at *17 (S.D.N.Y. May 10, 2007) (plaintiff alleged employer "'pepper[ed]' her with insults on a nearly daily basis regarding her inability to speak English well and told her repeatedly to 'go back to Cuba,' which eventually led to her becoming depressed and anxious"). Moreover, Marino's reference to the East Indian employee of JPMC was "not directed at" Lytle, weighing further against a hostile work environment claim. See Murray, 528 F. Supp. 2d at 279 (citation omitted). Moreover, although the Court is mindful that each of these comments is wholly inappropriate, if not cruel, for the workplace (or anywhere for that matter), they are not severe enough to sustain a hostile work environment claim. See, e.g., Adam v. Glen Cove Sch., No. 06 Civ. 1200 (JFB) (MLO), 2008 WL 508689, at *11 (E.D.N.Y. Feb. 21, 2008) (two alleged uses of "N word" insufficient to sustain claim for hostile work environment); Pagan v. N.Y.S. Div. of Parole, No. 98 Civ. 5840 (FM), 2003 WL 22723013, at *6 (S.D.N.Y. Nov.18, 2003) (several racially derogatory remarks by supervisor directly to plaintiff—included use of the phrases "spic" and "fat Puerto Rican"—did "not amount to the sort of 'extremely serious' behavior required to give rise to a hostile work environment under Title VII") (citations omitted).

Additionally, Lytle's delay in reporting Marino and Jorquera for their offensive comments weighs in favor of JPMC as a matter of law. Lytle alleges that the two comments attributable to Marino occurred in 2005, yet he failed to identify Marino as the speaker until 2007. When the unnamed human resources representative with whom Lytle spoke in 2005 urged him to identify the speaker, Lytle refused and insisted on waiting. (Compl. at 17). Thus, while he may have thought there were good reasons to forbear from reporting, Lytle unreasonably failed to take advantage of any preventative or corrective opportunities provided by JPMC. See, e.g., Dayes v. Pace Univ., No. 98 Civ. 3675 (WHP), 2000 WL 307382, at *6 (S.D.N.Y. Mar. 24, 2000) (12-month delay in reporting harassment unreasonable); Barua v. Credit Lyonnais-U.S. Branches, No. 97 Civ. 7991 (JSR), 1998 WL 915892, at *5 (S.D.N.Y. Dec. 30, 1998) (18-month delay to report harassment unreasonable).

Furthermore, Lytle cannot establish the second prong of a hostile work environment claim, that the comments creating a hostile environment should be imputed to JPMC. See Rios v. Buffalo & Fort Erie Pub. Bridge Auth., 326 F. App'x 612, 614 (2d Cir. 2009) ("With regard to the second prong, where co-worker harassment is alleged, the plaintiff must establish that her employer knew or reasonably should have known about the harassment and failed to take reasonable remedial action.") (citing Petrosino v. Bell Atl., 385 F.3d 210, 225 (2d Cir. 2004)). The earliest instance of Lytle raising his concerns about Marino's comments appears to be the conversations Lytle had with an unnamed human resources representative in late 2005. (Compl. at 17). During that conversation Lytle refused to provide the name of the offending speaker, despite the representative's statement, as described by Lytle, "I need to know right now who said that[.] JPMChase has zero tolerance towards comments like that," to which Lytle replied, "'please, I don't want to make that an issue right now', and [he] begged her to dismiss it for now." (Compl. at 17). When Lytle contacted ERAC in January, 2007, McKee was immediately responsive and any delay in responsive action is attributable to Lytle because he did not tell McKee during their early conversations that he believed his complaints were rooted in discrimination. (McKee Aff. ¶¶ 7-10 & Exs. B-C). When Lytle distributed the April 27 E-mail—which did allege discriminatory conduct and repeat Marino and Jorquera's offensive comments without identifying them—McKee was quick to respond. (McKee Aff. ¶ 14). However, Lytle did not contact her until May 3, 2007, and they spoke only after he realized that his access to JPMC facilities had been restricted. (Compl. at 87; McKee Aff. ¶¶ 15-16).

The record further demonstrates that JPMC did take reasonable remedial action, spearheaded by McKee, in response to the June 24 E-mail (Jasper Aff. Ex. D) by conducting investigations into the inappropriate comments attributed to Marino and Jorquera, as well as Lytle's other claims of discrimination. By July 18, 2007, Marino had received a written warning and issued a formal apology (Pl.'s App. II at 20; McKee Aff. ¶ 42 & Ex. L); by July 19, 2007, Jorquera was terminated (McKee Aff. ¶ 47 & Ex. M); and by the end of that month, Guillermo and Arenas, who engaged in inappropriate conversations with Jorquera, had received written warnings. (McKee Aff. ¶ 48 & Ex. N). In taking these remedial actions, JPMC relied on the very Code of Conduct that Lytle refused to affirm (see McKee Aff. ¶ 48), which weighs in JPMC's favor on this point. See, e.g., Karibian v. Columbia Univ., 14 F.3d 773, 779 (2d Cir. 1994) (to impute conduct to employer, plaintiff "must prove that the employer either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.") (quotation marks and citations omitted).

In sum, Lytle has failed to demonstrate a hostile work environment claim as a matter of law, and no reasonable jury could conclude that Lytle was subjected to a hostile work environment. Consequently, summary judgment should be granted on this claim as well.

D. Religious Accommodation Claim

Lytle has also brought a claim relating to JPMC's alleged failure to accommodate his scheduling needs related to his religious observance. Title VII prohibits discrimination in employment on the basis of religion. An employer may not "fail or refuse to hire or . . . discharge any individual, or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion." 42 U.S.C. § 2000e-2(a)(1). Title VII provides that "[t]he term 'religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's . . . religious observance or practice without undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j). "Thus, according to this definition, when an employee has a genuine religious practice that conflicts with a requirement of employment, his or her employer, once notified, must offer the aggrieved employee a reasonable accommodation, unless doing so would cause the employer to suffer an undue hardship," Cosme v. Henderson, 287 F.3d 152, 158 (2d Cir. 2002); see also Trans World Airlines. Inc. v. Hardison, 432 U.S. 63, 74 (1977) (it is "an unlawful employment practice . . . for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of his employees and prospective employees"). To make out a prima facie case of religious discrimination, plaintiffs alleging a violation of Title VII or the NYSHRL must prove that: "(1) they held a bona fide religious belief conflicting with an employment requirement; (2) they informed their employers of this belief; and (3) they were disciplined for failure to comply with the conflicting employment requirement." Knight v. Conn. Dep't of Pub. Health, 275 F.3d 156, 167 (2d Cir. 2001) (citation omitted); see also Torres v. Pisano, 116 F.3d 625, 629 n.1 (2d Cir. 1997) ("[C]laims brought under New York State's Human Rights Law are analytically identical to claims brought under Title VII."). As the Second Circuit has instructed: "[i]n formulating such an accommodation, both the employer and employee should remain flexible, with an eye toward achieving a mutually acceptable adjustment. Nevertheless, to avoid Title VII liability, the employer need not offer the accommodation the employee prefers. Instead, when any reasonable accommodation is provided, the statutory inquiry ends." Cosme, 287 F.3d at 158 (citations omitted). "Title VII's analytical framework continues to apply to NYCHRL claims" although Lytle's NYCHRL claims "must be interpreted more generously than Title VII." Waltzer v. Triumph Apparel Corp., No. 09 Civ. 288 (DLC), 2010 WL 565428, at *8 (S.D.N.Y. Feb. 18, 2010).

JPMC does not dispute that Lytle had a bona fide religious belief or that he had informed the company of this belief. (See Def.'s Mem. at 29). Rather, the record demonstrates that from the time his employment began, the company had worked to create a schedule that would allow Lytle to attend his five religious meetings per week. (See Melleby Aff. Ex. C; Compl. at 4; Lytle Tr.: 245:15-21). Accordingly, the dispute between the parties arises from Lytle's claim that JPMC effectively forced him to violate the tenets of his belief system—in preventing him from attending Friday evening meetings or in requiring him to use a telephone line that was reserved for others to call into meetings—or violate his work schedule. (See Compl. at 39, 130; Lytle Tr.: 361:12-22).

Viewing the facts in the light most favorable to Lytle and under the heightened NYCHRL standard, the record demonstrates that no reasonable jury could find in favor of Lytle on this claim. As a threshold matter, Lytle does not allege—nor does the record bear out—that Lytle was disciplined for a failure to comply with JPMC's requirements. Thus, he cannot establish a prima facie case of religious discrimination. See, e.g., Siddiqi, 572 F. Supp. 2d at 370 ("|T]he only issue is whether Plaintiff can maintain a claim for discriminatory failure to accommodate when he was not threatened with discipline if he failed to come to work. He cannot.") (citation omitted); Bowles v. New York City Transit Auth., Nos. 00 Civ. 4213 (BSJ) (MHD), 03 Civ. 3073 (BSJ) (MHD), 2006 WL 1418602, at *10 (S.D.N.Y. May 23, 2006) (some adverse employment required in failure to accommodate claim, typically discipline, demotion, transfer or termination for refusing to comply with conflicting employment requirement); Durant, 101 F. Supp. 2d at 233 ("Durant has not established a prima facie case of religious discrimination because she was never disciplined for her failure to work on the Sabbath. A plaintiff must show that she has suffered an adverse change in the conditions of her employment.").

In addition, the evidence suggests that soon after Lytle approached Melleby about his concerns that the department's new schedule would interfere with his Friday evening meetings, Melleby took Lytle's considerations seriously and made attempts to accommodate him. First, Melleby asked Lytle to submit a written request for a modified schedule and suggested two alternative arrangements, because he and Morales evaluated Lytle's request and concluded that it might lead to inadequate coverage (Melleby Aff. ¶ 6) or might lead to an inconsistent application of the new schedule (Compl. at 99). Importantly, when JPMC entered into the arrangement with Lytle that permitted him to participate by telephone except when he needed to attend meetings in person, it did so based on Lytle's own suggestion. (Compl. at 130; Melleby Aff. ¶ 8 & Ex. D). Although Lytle implies that he was somehow deprived of an alternative schedule—meaning the alternative schedule that Lytle believes Melleby offered to other JPMC employees who were white—JPMC reasonably believed that an alternative schedule was no longer necessary because it had entered into an arrangement that Lytle himself had suggested and therefore must have found acceptable. While questions of reasonableness are generally left to the fact-finder, see Baker v. Home Depot, 445 F.3d 541, 548 (2d Cir. 2006) (citing EEOC v. Universal Manufacturing Corp., 914 F.2d 71, 73 (5th Cir. 1990)), the Second Circuit has "note[d] that employees are not entitled to hold out for the 'most beneficial accommodation,'" in this case an alternative schedule that would better accommodate his religious meetings without having to use the telephone line. Id. (citing Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 69 (1986) ("Ansonia")).

When JPMC did become aware that the schedule Lytle suggested was problematic for him, it offered Lytle the opportunity to participate in a telephone "bridge call" and to propose three possible solutions to the scheduling conflict. (Compl. at 136; Melleby Aff. ¶ 12). Lytle refused to propose any suggestions other than to be provided with a delayed start and end time on Fridays, which he believed had been offered to another employee, Kayaian. Thus, despite Melleby's invitation, Lytle did not "remain flexible, with an eye toward achieving a mutually acceptable adjustment." Cosme, 287 F.3d at 158 (citing Ansonia, 479 U.S. at 69 (citing 118 Cong. Rec. 706 (1972))). Lytle's only proposed schedule amounted to a personal preference, which does not create grounds for a religious accommodation claim when refused for valid reasons, such as those articulated by JPMC here. See, e.g., Waltzer, 2010 WL 565428, at *5 ("While Title VII forbids religious discrimination, it does not require an employer "to accommodate what amounts to a purely personal preference.") (citing E.E.O.C. v. Union Independiente de la Autoridad de Acueductos y Alcantarillados de Puerto Rico, 279 F.3d 49, 56 (1st Cir. 2002)).

Moreover, although Lytle contends that JPMC accommodated Kayaian's preferred schedule while rejecting his, he has failed to rebut JPMC's contention that any scheduling accommodation JPMC provided to Kayaian was a temporary measure to allow him to adjust to the department's new twelve-hour shifts (Supplemental Affidavit of Michael J. Melleby in Further Support of Motion for Summary Judgment, sworn to on July 1, 2011 (Dkt. No. 96), at ¶¶ 4-5), which Melleby also offered to Lytle. (Melleby Aff. ¶ 7 & Ex. C). Lytle's opposition papers point to two documents in support of his claim that Kayaian received preferential treatment. First, he makes reference to a copy of his own statement that Kayaian's transitional schedule was set to end on June 30, 2007 but provides no evidence to the contrary. (Pl.'s App. II at 16). Second, he offers a computer screenshot displaying an undated conversation between himself and Henry in which he referred to Kayaian as his "meal ticket" and asked Henry if Kayaian was at work at that moment. (Id.). According to Henry, Kayaian was in fact present in the office as of the time of their conversation, which appears to have occurred at 7:32 p.m. (id.), or 32 minutes into their shift (see Melleby Aff. ¶ 3), despite Lytle's claim that JPMC permitted Kayaian to come into work "three hours later each day." (Pl.'s Mem. at 3). Therefore, Lytle has failed to demonstrate the existence of a factual dispute as to whether JPMC forced him into a schedule that violated his religious obligations or treated him, as a Jehovah's Witness, any differently than other employees. Consequently, Lytle's religious accommodation claim fails.

E. Retaliation Claim

Section 704(a) of Title VII provides in pertinent part that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). Likewise, the NYSHRL makes it unlawful for "any employer . . . to discharge, expel or otherwise discriminate against any person because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this subchapter." N.Y. Exec. Law § 296(1)(e). Finally, the NYCHRL prohibits retaliation "in any manner." N.Y.C. Admin. Code § 8-107(7). Under local law, "[t]he retaliation . . . need not result in an ultimate action with respect to employment . . . or in a materially adverse change in the terms and conditions of employment . . . however, that the retaliatory or discriminatory act or acts complained of must be reasonably likely to deter a person from engaging in protected activity." Id.

In order to defeat a motion for summary judgment on a retaliation claim, a plaintiff must set forth evidence sufficient to permit a rational trier of fact to find a prima facie case of retaliation by showing: "'(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action.'" Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005) (quoting McMenemy v. City of Rochester, 241 F.3d 279, 282-83 (2d Cir. 2001)). "[T]he analysis of the retaliation claims under both federal and state law is the same." McMenemy, 241 F.3d at 283 n.1 (citation omitted). To prevail on a retaliation claim under the NYCHRL, a plaintiff must show: "1) he engaged in a protected activity; 2) his employer was aware of that activity; 3) he suffered an action that would be reasonably likely to deter a person from engaging in a protected activity; and 4) that there was a causal connection between the protected activity and the action." Pilgrim v. McGraw-Hill Companies, Inc., 599 F. Supp. 2d 462, 469 (S.D.N.Y. 2009).

Like other employment claims, retaliation claims are tested under the McDonnell Douglas standard, and "[t]he plaintiff's burden at th[e] [initial] stage is slight; []he may establish a prima facie case with de minimis evidence." Shepard v. Frontier Comm'cns Servs., Inc., 92 F. Supp. 2d 279, 291 (S.D.N.Y. 2000); accord Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005). "If the plaintiff sustains this initial burden, a presumption of retaliation arises. The defendant must then articulate a legitimate, non-retaliatory reason for the adverse employment action. If so, the presumption of retaliation dissipates and the employee must show that retaliation was a substantial reason for the adverse employment action." Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 107 (2d Cir. 2011) (quoting Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010)).

Lytle alleges that JPMC took several retaliatory actions both during his employment and in his termination. Based on Lytle's complaints to management, particularly his e-mail to various administrators in late 2005 (Compl. at 15-17) concerning Marino and his work schedule, JPMC allegedly transferred him to JPMC facilities "uptown" where he would have less job security and could face a problematic relationship with his supervisor, Jorquera; assigned him to an inappropriately small work environment; gave him an inappropriate 2006 year-end review; and provided him with a title change only after a considerable delay and only due to his complaints. In addition, Lytle claims to have been terminated as a result of the complaints he raised in the April 27 E-mail and for taking a stand against what he viewed to be JPMC's inconsistent application of its Code of Conduct. (See, e.g., Compl. at 119).

1. Protected Activity Known to JPMC

Notably, "[t]o establish that his activity is protected under Title VII, a plaintiff need not prove the merit of his underlying discrimination complaint, but only that he was acting under a good faith, reasonable belief that a violation existed." Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990) (citations omitted); accord McMenemy, 241 F.3d at 283 (citations omitted). "Furthermore, the law protects not only the filing of formal charges of discrimination, but also informal protests of discrimination, such as complaints to management." Milne v. Navigant Consulting, No. 08 Civ. 8964 (NRB), 2010 WL 4456853, at *6 (S.D.N.Y. Oct. 27, 2010) (citing La Grande, 370 F. App'x at 208); Correa v. Mana Prods., Inc., 550 F. Supp. 2d 319, 327 (E.D.N.Y. 2008) (protected activities include "informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry, and expressing support of co-workers who have filed formal charges") (citing Sumner, 899 F.2d at 209). "Thus, so long as plaintiff complains to h[is] employer about conduct which []he reasonably believes is unlawful, it is protected activity." Milne, 2010 WL 4456853, at *6. JPMC does not dispute that Lytle's complaints concerning perceived discrimination or racially-motivated comments are protected conduct. (Def.'s Mem. at 31). Likewise, JPMC has acknowledged awareness as early as April, 2007 of Lytle complaining of discriminatory treatment and being subjected to derogatory comments. (See, e.g., McKee Aff. ¶ 11, 15).

2. Adverse Actions

To establish that JPMC's employment decisions concerning Lytle were adverse employment actions, Lytle would have to show that a reasonable employee would have found JPMC dissuaded a reasonable worker from bringing a charge of discrimination. See Burlington No. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) ("Burlington"); Hicks, 593 F.3d at 165 (summarizing "[s]everal principles" concerning retaliation claims established by Burlington); Fincher, 604 F.3d at 720 & n.6 (comparing definition of "adverse" for retaliation claim with definition of "adverse" in discrimination claim). While an employee asserting a retaliation claim no longer needs to cite "actions that affect the terms and conditions of employment" post-Burlingon, Hicks, 593 F.3d at 165, the retaliation standard still requires that the plaintiff assert more than "petty slights or minor annoyances that often take place at work and that all employees experience" to show "retaliation that produces an injury or harm." Burlington, 548 U.S. at 67, 68. Courts should look to the context of the alleged retaliation, applying an objective standard. Id. at 69 ("'The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.'") (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998)).

Aside from his termination, Lytle has not identified any adverse employment action necessary to establish a claim for retaliation under federal, state, or local law. Lytle cites to several actions as evidence of retaliation, including his transfer to "uptown" JPMC facilities, his assignment to a shared cubicle, a delayed title change, and his initially unfavorable (but later modified) 2006 year-end review as well as JPMC restricting his access to datacenters in early May, 2007. His arguments on these points fail for two reasons. First, Lytle's own conduct shows that each of the cited actions taken by JPMC (with the exception of having his access restricted) occurred prior to March, 2007 when he filed his first charges with the EEOC, such that he himself was not dissuaded or deterred from bringing charges. Second, Lytle has failed to allege an injury or harm, so that there can be no question of fact as to whether these employment actions were "harmful" to the point of "dissuad[ing]" other JPMC employees from complaining about discrimination.

For example, while Lytle initially did not want to be moved uptown, he later conceded that he "would like to stay uptown" in conversations about his schedule. (Melleby Aff. Ex. D). Likewise, an unfavorable review does not necessarily rise to the level of an adverse employment action for retaliation purposes, see, e.g., Sharpe v. Utica Mutual Insurance Co., 756 F. Supp. 2d 230, 244 (N.D.N.Y. 2010) (unfavorable employment review focused unfairly on "the 'negatives'" not harmful), and it does not in this case where JPMC reviewed and modified Lytle's 2006 year-end review upon his complaints and he thus received the corresponding compensation. (McKee Aff. ¶¶ 29-30). The same rationale holds true for the delay in changing his title to DC Tech II; not only were there no employment benefits associated with the title change (Lytle Tr.: 316:6, 9; McKee Aff. ¶ 35) but Lytle also eventually received the new title. (Lytle Tr.: 316:20; McKee Aff. Ex. J). Lytle's complaints about his cubicle arrangement is no more than a "minor annoyance[]" and one to which his entire group had to share. Burlington, 548 U.S. at 68.

The only remaining complaint, and the one which comes the closest to a showing of a materially adverse employment action, is JPMC's restriction of Lytle's access to datacenters during his vacation and in response to the April 27 E-mail. A post-Burlington case to consider a similar occurrence is the First Circuit's decision in Billings v. Town of Grafton, 515 F.3d 39 (1st Cir. 2008), in which the plaintiff, a former secretary to a town administrator, was banned from the Selectmen's Office, which prevented her from being able to attend an important instructional session that her colleagues attended, thereby depriving her of an opportunity that would have "'contribute[d] significantly to [her] professional advancement.'" Id. at 55 (quoting Burlington, 548 U.S. at 69)). The First Circuit, in finding the retaliation claim actionable, acknowledged that although "a jury could reasonably reach the opposite conclusion, [the court] cannot do so as a matter of law." Id. In contrast, no reasonable fact finder could determine (nor has Lytle alleged) that the limitation of his access to datacenters where he had not been assigned and during a period when he was not obligated to work (because he was on a prescheduled vacation) denied him the opportunity for "professional advancement." Rather, "because [Lytle] did not need to [access] the [datacenters] to perform h[is] job duties," having his access temporarily denied amounts to not more than a "petty slight" or "minor annoyance." McPherson v. City of New York, No. 09 Civ. 4682 (BSJ) (THK), 2011 WL 4431163, at *8 (S.D.N.Y. Sept. 23, 2011) ("[L]imiting (or prohibiting) [plaintiff's] access to the office copy machine might have been inconvenient to [her] as she was trying to print materials for her civil service exam, but was not an adverse action.") (quoting Burlington, 548 U.S. at 68). Therefore, Lytle has not established a prima facie case of retaliation as to any of JPMC's actions except for termination.

3. Causal Connection

In order to defeat a summary judgment motion, Lytle must show that a causal connection existed between his protected activity and the adverse employment action. Lytle's termination is the only adverse employment action of those cited for the Court to consider on this point. "Proof of . . . a causal connection can be established directly through evidence of retaliatory animus directed against a plaintiff, or indirectly by showing that the protected activity was followed closely by discriminatory treatment [or] through other evidence such as disparate treatment of fellow employees who engaged in similar conduct.'" Terry v. Ashcroft, 336 P.3d 128, 152 (2d Cir. 2003) (citations and quotation marks omitted); accord Sumner, 899 F.2d at 209; DeCintio v. Westchester Cnty. Med. Ctr, 821 F.2d 111, 115 (2d Cir. 1987).

One fact weighs in Lytle's favor on this point: the temporal proximity between his April 27 E-mail and filing charges with the EEOC in March and June, 2007 (with the final amendment in September) and his termination on August 17, 2007, which could create an inference that retaliation for the protected activity was the cause of the later adverse employment action. See Cifra v. G.E. Co., 252 F.3d 205, 217 (2d Cir. 2001) ("The causal connection needed for proof of a retaliation claim 'can be established indirectly by showing that the protected activity was closely followed in time by the adverse action.'") (quoting Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996)).

However, a crucial factor that weighs against a finding that Lytle has established a causal connection between his complaints and his termination is JPMC's effort to have Lytle affirm the Code of Conduct before his termination. JPMC sent Lytle more than a dozen e-mails prior to his August 17, 2007 termination prompting him to affirm the Code of Conduct and stating that such affirmation was "mandatory" (Denis-Roman Aff. Exs. G-N), a fact Lytle was reminded of shortly before he reiterated his refusal to affirm the Code of Conduct on August 16. (Compl. at 50, 61, 125). There is no evidence to suggest that had Lytle affirmed the Code of Conduct, JPMC would have terminated him. Thus, although Lytle felt he could not affirm the Code of Conduct because he believed JPMC had failed to enforce it properly, ultimately he chose not to affirm the Code of Conduct. JPMC's repeated attempts to encourage Lytle to affirm the Code of Conduct negate any concern of retaliatory animus and weigh in favor of summary judgment against him. See, e.g., Roa v. Mineta, 51 F. App'x 896, 900 (2d Cir. 2002) (affirming summary judgment against plaintiff on retaliation claim because of lack of evidence showing retaliatory animus and noting decisions affirming summary judgment against plaintiffs where only causal connection is temporal connection),

JPMC's response to Lytle's complaints—including his concerns with his title change, his schedule as it conflicted with his religious obligations, and his claims regarding Marino and Jorquera using racial slurs—further demonstrate the lack of a causal connection giving rise to a retaliation claim. See Bind v. City of New York, No. 08 Civ. 11105 (RJH), 2011 WL 4542897, at *17 (S.D.N.Y. Sept. 30, 2011) ("[A]n intervening event between the protected activity and the adverse employment action may defeat the inference of causation where temporal proximity might otherwise suffice.") (citation omitted). Given that Lytle has not alleged facts giving rise to a causal connection between his protected conduct and his termination, he has not established a prima facie case of retaliation.

4. Burden Shifting

Even if Lytle could establish a causal connection between his complaints in March, April, and June of 2007 and his termination in August, under the burden-shifting analysis of Title VII (and the NYSHRL and the NYCHRL), courts may consider whether the employer has "proffered a legitimate, non-discriminatory reason" for the adverse employment action that the employee cannot refute. See, e.g., Chang v. Safe Horizons, 254 F. App'x 838, 839 (2d Cir. 2007) (affirming grant of summary judgment on retaliation claim). As described in detail above, JPMC has established it had a legitimate, non-pretextual reason for Lytle's termination, his refusal to affirm the Code of Conduct, which was a condition of his employment. Accordingly, even if Lytle had satisfied each of the other factors in the inquiry, JPMC is entitled to summary judgment as a matter of law on Lytle's retaliation claim, having "proffered a legitimate, non-discriminatory reason" for his termination without any evidence of pretext.

F. Allegations Lytle Raises in Opposition to JPMC's Motion

Lytle asserts two additional arguments in his opposition to JPMC's motion for summary judgment that do not appear in his Complaint. First, Lytle contends that JPMC's method of distributing bonuses—deemed the "Forced Distribution Process" or "20/70/10"—enabled JPMC to "st[eal] hundreds of millions of dollars from their own employees by cheating them out of well-deserved raises and bonuses," which was a means to "discriminate against minorities for financial gain." (Pl.'s Mem. at 3, 14-15; Pl.'s App. II at 25; see also Pl.'s App. I at 8-11 (arguing that this system had a "disparate impact" on minority employees and deprived the U.S. government of taxes that would have been paid by JPMC employees receiving additional bonuses)). Second, Lytle alleges that JPMC forged certain Medical Leave Forms, in seeking medical leave on his behalf, and later falsified his attendance records to reflect a six-week absence for medical leave. (Pl.'s Mem. at 6-7; Pl.'s App. I at 7-8; Pl.'s App. II at 13).

The Court need not consider these claims because Lytle "raised them for the first time in opposition to summary judgment." Lyman v. CSX Transp., Inc., 364 F. App'x 699, 701 (2d Cir. 2010) (citations omitted); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1183, at 23 n.9 (3d ed. 2004) ("An opposition to a summary judgment motion is not the place for a plaintiff to raise new claims.") (citation omitted). Because the complaint is intended "to provide the defendant with notice of the claims asserted against it," Greenidge, 446 F.3d at 361 (citing Fed. R. Civ. P. 8(a)), "[s]ubsequent filings serve to develop and clarify those issues and assertions, but a party may not assert or develop allegations not contained in the complaint." Marinelli v. Chao, 222 F. Supp. 2d 402, 406 (S.D.N.Y. 2002) (citation omitted).

In his opposition papers, Lytle also takes issue with counsel to JPMC's handling of discovery. He contends that JPMC intentionally overwhelmed him with voluminous productions that were redundant and "useless," and that it "withheld until the last moment." (Pl.'s App. I at 5-6, Pl.'s App. II at 14). Lytle argues further that JPMC's objections that certain of Lytle's discovery requests required it to "incur an unreasonable expense" was misleading because JPMC maintains staff "whose sole and singular daily responsibility is to load tapes so that data can be stored/restored." (Pl.'s App. I at 6 (emphasis in original)). Additionally, Lytle contends that JPMC has "inside sources" in the federal judiciary "that gave [it] an unfair advantage," as evidenced by JPMC learning that Lytle had filed a complaint against it before service of the complaint (Pl.'s Mem. at 11-13; Pl.'s App. I at 14); that the Court favored JPMC (Letter from Bruce Lytle to Hon. James L. Cott, dated Apr. 7, 2011, annexed to Pl.'s Mem.); and that court records were incomplete or incorrect. (Letter from Bruce Lytle to Hon. James L. Cott, dated Apr, 18, 2011, annexed to Pl.'s Mem.). The Court need not consider these additional arguments because they do not raise a "genuine dispute of material fact" or establish that JPMC is not "entitled to prevail as a matter of law," the standard for resolving a motion for summary judgment under the Federal Rules. Fed. R. Civ. P. 56(a).

III. CONCLUSION

For the foregoing reasons, I recommend that the Court grant JPMC's motion for summary judgment and dismiss the Complaint.

PROCEDURES FOR FILING OBJECTIONS

TO THIS REPORT & RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Deborah A. Batts and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Batts. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010) (citing Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) and Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. If Lytle does not have access to cases cited herein that are reported on LexisNexis or Westlaw, he should request copies from JPMC. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009). Dated: New York, New York

February 8, 2012

/s/_________

JAMES L. COTT

United States Magistrate Judge

Copies of this Report & Recommendation have been sent to Counsel by ECF and by mail to:

Bruce Lytle 134-50 158th Street Jamaica, NY 11434