Opinion
19-CV-8810 (PAE) (KHP)
04-17-2023
JESUS MARIA CANO RUIZ, Plaintiff, v. SEIU LOCAL 32BJ, et al., Defendants.
TO: HONORABLE PAUL A. ENGELMAYER, United States District Judge.
REPORT & RECOMMENDATION ON MOTION FOR SUMMARY JUDGMENT
KATHARINE H. PARKER, United States Magistrate Judge.
Plaintiff Jesus M. Cano (“Plaintiff”), proceeding pro se, brings this action against his former employers, Solil Management, LLC and Sol Goldman Investments, LLC (“Defendants”) asserting claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq (“Title VII”), 42 U.S.C § 1981 (“Section 1981”), the New York State Human Rights Law, N.Y. Exec. Law §§ 290 to 297 (“NYSHRL”), and the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 to 131 “(NYCHRL”), for employment discrimination based on race/ethnicity and national origin, including by creation of a hostile work environment and retaliatory suspension and termination. Defendants have moved for summary judgement. For the reasons stated below, I respectfully recommend that Defendants' motion be GRANTED.
The facts are taken from the uncontroverted Rule 56.1 Statement (“56.1”), Plaintiff's deposition transcripts (accounting for Plaintiff's revisions per the errata sheet), and the declarations submitted by the parties, and are presented in the light most favorable to Plaintiff. Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012).
Plaintiff is a Hispanic male of Colombian descent. Defendants are real estate management and investment firms that manage residential buildings in New York City. Plaintiff began working for Defendants in May 2014 as a part-time doorman at a building in Brooklyn. (56.1 ¶ 1.)
1. Plaintiff Transfers to New Work Locations
In or around November 2016, Plaintiff transferred to a building in Manhattan at 165 East 35th Street (“165 East 35th”), where he worked as a full-time doorman. (Id.; Pl. Opp. Br. 17.)
On or about December 16, 2016, a tenant's package was delivered to the building, but when the tenant went to pick it up from Plaintiff, Plaintiff could not find the package. (56.1 ¶¶ 6-7; Pl. Dep. Tr. 1 at 61:6-62:15.) Plaintiff eventually found the package behind other packages in the building's package room. (Pl. Dep. Tr. 1 at 62:7-10.) The following day, the building superintendent, Mr. Tagle (“Tagle”), received an email from a tenant, Alexandra Cerrati (“Cerrati”) stating that Cerrati had received a “semi threatening” call from Plaintiff regarding the missing package, which belonged to Cerrati's roommate. (Little Decl. Ex. D.) Cerrati stated that Plaintiff had told her that she “needed to come downstairs” to discuss a problem face-to-face, and that her roommate should not have complained about the missing package because this had gotten Plaintiff “in trouble with his boss.” (Id.) Cerrati's email stated that Plaintiff's behavior was “bordering on harassing,” and made her “uncomfortable.” (Id.)
On or about January 2, 2017, some dry cleaning went missing from the building's basement. (56.1 ¶¶ 9-11.) Plaintiff called 911 seeking assistance with the situation because he believed someone was “hiding building property” and wanted “advice and tips on how to act.” (Pl. Dep. Tr. 1 at 57:4-6). Police officers came to the building in response to Plaintiff's call, and Plaintiff eventually found the dry cleaning. Plaintiff believed the dry cleaning was purposefully hidden in an attempt to frame him, but he had “no clue” at the time why his coworkers would try to sabotage him. (Id. at 54:7-55:5; Pl. Opp. Br. 18.) Plaintiff requested that Defendants' Payroll Administrator, Vivian Orellana (“Orellana”), review video footage that would show that he did not lose the dry cleaning, but Orellana did not review any video footage as Plaintiff had requested. (Pl. Dep. Tr. 1 at 61:13-18.)
On January 7, 2017, Tagle emailed Orellana stating that he had received complaints from tenants about the fact that Plaintiff had called police to the building regarding the missing dry cleaning, as well as other complaints from tenants regarding Plaintiff. (56.1 ¶¶ 8-9; Little Decl. Ex. E.) The email also stated that Tagle understood Plaintiff was accusing him and others of “setting him up” and that he was offended by this allegation. (Id.) Tagle apologetically requested that Plaintiff be transferred to another building. (Id.)
Shortly thereafter, Defendants transferred Plaintiff to another building at 137 East 38th Street where he continued to work as a doorman with the same hours and same pay. (56.1 ¶ 12.) Plaintiff worked at this location without issue until April 2018. (Pl. Opp. Br. 18.)
2. Plaintiff Transfers to Another Work Location at 400-401 East 88th and is Promoted to Handyman
In or around April 2018, Orellana informed Plaintiff that a handyman position had opened up at a building on the Upper East Side because one of their handymen, Reynaldo Delfi (“Delfi”), had died. (Id.) Plaintiff accepted the position because it would come with a pay increase. (Id. at 19.) Plaintiff began working at this location in May 2018. (56.1 ¶ 14.) The location consisted of two connected buildings: 401 East 88th Street - 400 East 89th Street, New York, New York (“400-401 East 88th”). (Mehmedovic Decl. ¶ 7.) Most of the staff at 400-401 East 88th during Plaintiff's time there were Hispanic. (Pl. Dep. Tr. 2 at 230:16-20.)
Property Manager Scott Price (“Price”) served as the managing agent for 400-401 East 88th and reported to Manager Louisa Little (“Little”). (Little Decl. ¶¶ 4, 14.) In or around December 2018, another Property Manager named Steven Melowsky (“Melowsky”) came on board. The property managers had the authority to initiate discipline, but all decisions to hire, promote, or terminate an employee needed approval from Little. (Id. at ¶ 4.)
Plaintiff worked alongside another handyman, Martin Ball (“Ball”), who had already been serving as handyman at the building for several years. (Id. at ¶ 14.) Plaintiff and Ball reported to Edo Mehmedovic (“Mehmedovic”), the building's superintendent. (56.1 ¶ 19.)
3. Tensions Develop Between Plaintiff and Ball
Shortly after Plaintiff began working as a handyman, he exhibited what Mehmedovic describes in a sworn declaration as “a combative demeanor,” and he appeared to resent the more senior handyman, Ball. (Mehmedovic Decl. ¶ 10.) Mehmedovic found Plaintiff to be “rude” and observed that a “personality conflict” quickly developed between Plaintiff and Ball, leading to “confrontations between them.” (Id. at ¶¶ 10-11; 56.1 ¶ 22.)
The record reflects that the two handymen disagreed over who was responsible for certain repairs, as well as how certain repairs should be made. For example, although it is undisputed that both Plaintiff and Ball were responsible for making repairs in both of the connected buildings, Plaintiff at times refused to complete repairs at the 401 address because he believed these were Ball's primary responsibility. (Id. at ¶ 20; 56.1 ¶¶ 15-17.) Additionally, Ball occasionally created work orders in the building's logbook, which he was permitted to do when the situation required it (Mehmedovic Decl. ¶ 8), but Plaintiff believed these orders were “fake” and were created in an attempt to make Plaintiff look bad (Pl. Dep. Tr. 2 at 242:10-14, 243:15-244:5). Plaintiff also believed Ball was not a skilled handyman and perceived Ball as getting away with poor performance without scrutiny from management. (Id. at 224:8-225:8; 35:25-36:6, 37:7-17, 38:12-23, 39:12-14, 222:18-25.) Plaintiff also believes Ball was “trash talking” about him with coworkers in order to discredit him. (Pl. Opp. Br. 96-97.)
4. Plaintiff's Air Conditioning Repair Work Over the Summer of 2018
In or about June 2018, Plaintiff renovated the building handyman shop. (Id. at 95.)
In July 2018, several air conditioning units (“a.c. units”) broke during periods while Mehmedovic and Ball were unavailable. (Id. at 39, 44.) On July 25, 2018, Plaintiff informed Price by text that the a.c. units in Apartments 13-G, 11-N, and 10-K needed repairs and that Plaintiff was “waiting for instructions.” (ECF No. 158-1.) Plaintiff's text message stated that it was “a matter of time” that the a.c. units would break because they had been “fixed with used parts.” (Id.) Price responded: “Monitor and keep me posted.” (Id.) Plaintiff then texted that the tenant in Apartment 13-G was “rushing” him because the unit had been broken for two days and the tenant wanted it “working soon.” (Id.) Price responded: “What??” and “You can't fix it?” (Id.) Plaintiff responded that the unit was fixed “marty style,” but needed a new switch. (Id.) Price told Plaintiff to “call Chris and explain to him the problem.” (Id.) The next day, Plaintiff texted Price a photograph showing water damage in Apartment 9-K as a result of a leak from the 10-K a.c. unit. (Id.) Price responded that he would send a contractor to address the damage. (Id.)
On or about July 28, 2018, Plaintiff was alerted to a leak caused by the a.c. unit in Apartment 2-L. Plaintiff texted Ball asking where “the main drain for apt 2l” is located. (Id.) Plaintiff told Ball that he “snake[d] the trap” but he “couldn't unclog[] it.” (Id.) Ball responded that he was “not sure” where the main drain was located, and that Plaintiff would “have to trace it.” Ball explained that he was “usually able to snake out that line.” (Id.) Plaintiff then texted Price to inform him that Plaintiff was unable to fix the leak because he could not locate the main drain. (Id.) Plaintiff texted: “I called marty and he just said, you got to trace it. This guy working here over 15?years and he doesn't know....” (Id.) Price responded: “Turn it off if you can't figure it out,” and, “There is no need to tell me about Marty being there 15yrs when you are there now and can't figure out how to deal with these situations.” (Id.) Price then stated that they would “talk about this next week.” (Id.)
Plaintiff asserts that “another person in the building” later told him that the reason he could not fix the leak was that Ball “put a lid on the drain pipe.” (Pl. Opp. Br. 40.)
5. Defendants Meet with Plaintiff to Discuss Need for Improvement
On July 31, 2018, Little, Orellana, and Price met with Plaintiff to issue what Defendants characterize as a “verbal warning” regarding Plaintiff's need to improve his work performance and attitude. (56.1 ¶ 24.) Price memorialized the meeting in a memorandum to Plaintiff's personnel file. (Id. at ¶ 26; Little Dec. Ex. F.)
Plaintiff disagrees with the characterization of the meeting as a “verbal warning,” but admits that the meeting took place and that at the meeting, Price criticized Plaintiff's performance and discussed his ongoing conflict with Ball. (Pl. Dep. Tr. 1 at 66:16-68:24.) Plaintiff asserts that at this meeting, he explained to Price that a handyman is only supposed to handle “minor repairs” and not “advanced plumbing,” and that the reason he could not fix the leak in Apartment 2-L was because Ball “put a lid on the pipe.” (Pl. Opp. Br. 19, 40.) Plaintiff asserts that during the meeting, Little thanked him for his work, including for remodeling the handyman shop, and she informed Plaintiff that she would speak to Ball about the issue between the two handymen. (Id. at 19, 96.) Plaintiff admits that nobody mentioned Plaintiff's race or national origin at this meeting. (Pl. Dep. Tr. 1 at 72:6-20; see also 56.1 ¶ 25.)
6. Management Receives Tenant Complaints and Suspends Plaintiff's Employment
On September 5, 2018, a tenant in Apartment 3-P reported to Plaintiff that she smelled gas in her apartment, and Plaintiff “didn't say anything back.” (Pl. Dep. Tr. 2 at 221:6-7.) Later that day, the tenant called the fire department and reported a potential gas leak, and the fire department came to the building. (Mehmedovic Decl. ¶ 12.)
The following day, the tenant informed Mehmedovic that when she complained about the smell of gas to Plaintiff, Plaintiff told her he did not smell anything and advised her to leave the windows open. (Id.) On hearing this, Mehmedovic was “shocked” at what he perceived as Plaintiff shirking his responsibility. (Id. at ¶ 13.) Plaintiff maintains that he did not violate any procedure by not calling 911. (Pl. Dep. Tr. 2 at 220:19-23.)
On September 10, 2018, the tenant in Apartment 3-M, Sara Appel (“Appel”), sent an email to Defendants complaining that Plaintiff had been “extremely rude and arrogant” in connection with a repair and detailed several incidents in which Plaintiff had failed to properly fix something in the apartment. (Little Decl. Ex. G.) The email stated that Plaintiff initially refused to look at her a.c. unit, and when he finally came to look at the unit, he was “slamming things around the apartment, making a mess, complaining, and acting obnoxious.” (Id.) The email requested that Plaintiff be removed from the building. (Id.) Plaintiff explained that he did not immediately respond to Appel's request for a repair because the request was made on a Sunday, which “wasn't convenient,” and Plaintiff did not have the appropriate parts on that day. (Pl. Dep. Tr. 1 at 84:17-21.) Plaintiff believes Appel also did not like the previous handyman, Delfi, who was also Hispanic. (Pl. Opp. Br. 97, 143.) As evidence, Plaintiff points to a handful of undated work orders in the building's logbook entered by Appel that state “Marty Only” in the top left-hand corner. (Id.)
On September 14, 2018, Mehmedovic hand-delivered a letter to Plaintiff informing him that he was being suspended without pay for two weeks from September 18 until October 2, 2018. (Little Decl. Ex. H; Pl. Dep. Tr. 1 at 89:11-16.) The letter stated that Plaintiff had “previously been warned on 7/31/2018” about his “poor attitude” and “work performance,” that Management had continued to receive tenant complaints about Plaintiff, and that “multiple Tenants refuse to have you perform any work in their apartment,” resulting in “extra duties” for the superintendent. (Id.)
The Amended Complaint alleges that when Mehmedovic handed Plaintiff the letter, Mehmedovic told Plaintiff: “You don't belong here, fucking Colombian, you don't even deserve[] to live in this country.” (ECF No. 39 at 8.) Plaintiff cited no evidence supporting this allegation and made no mention of it in his opposition briefing, his declarations, or his deposition testimony.
7. Plaintiff Files a Union Grievance and Begins to See a Therapist
On an unspecified date during or shortly before Plaintiff's suspension, Plaintiff exchanged text messages with one of the building's doormen, Wellington Zalamea (“Zalamea”). (Pl. Opp. Br. 53.) Zalamea told Plaintiff that he did not understand why Defendants suspended Plaintiff for two weeks when suspensions typically last only three to five days. (Id.) He advised Plaintiff to go to the Union, which had previously defended Zalamea's friend. (Id.) Plaintiff responded, “I have everything documented with pictures, videos and registry of everything, they won't come out victorious this time.” (Id.)
The text messages were exchanged in Spanish and this Report cites the certified translations provided by Plaintiff.
On September 18, 2018, Plaintiff filed a grievance with SEIU Local 32BJ, Plaintiff's union (the “Union”), about his suspension. (56.1 ¶ 40.) The grievance alleged that Plaintiff was “unjustly suspended.” (Little Dec. Ex. I.) Plaintiff asserted in his complaint that he also filed a separate grievance with the Union on September 28, 2018 asserting that Ball was “harass[ing]” him (ECF No. 39 at p. 9), but the record does not reflect evidence that this grievance was filed and Defendants assert that it was not filed (56.1 ¶ 108).
The Union initiated a grievance procedure under the Collective Bargaining Agreement on Plaintiff's behalf but ultimately advised Plaintiff that the Union likely would not prevail in arbitration. (Little Decl. Ex. I; ECF No. 20 at 5-6.) Plaintiff did not appeal this decision and his grievances were never arbitrated. However, Plaintiff subsequently filed a complaint with the National Labor Relations Board (“NLRB”) against the Union in which he alleged that the Union failed to properly process his grievances. (Pl. Dep. Tr. 2 at 248:17-18.) On November 20, 2018, Defendants received notice from the NLRB regarding the complaint. (Little Decl. Ex. J.) The notice that Defendants received stated that Plaintiff's underlying grievance concerned “harassment on the job.” (Id.) The NLRB ultimately dismissed Plaintiff's complaint against the Union with no finding of wrongdoing by it. (Id. Ex. S.)
On September 24, 2018, Plaintiff visited Dr. Carmen Rivera (“Dr. Rivera”) regarding stress at work. Plaintiff submitted a form that appears to be completed by Dr. Rivera from this visit, which indicates that Plaintiff told Dr. Rivera that he feels “harassed on the job by a fellow handyman.” (Pl. Opp. Br. 172.) The form does not indicate that Plaintiff discussed any belief that he was being discriminated against. (Id.) Plaintiff visited Dr. Rivera again on October 1, 2018 and reported “ongoing stress” at work. (Id. at 176.) Dr. Rivera “began exploring [Plaintiff's] beliefs regarding why coworker is trying to undermine him.” (Id.) The form does not mention concerns regarding discrimination. Plaintiff returned for additional visits with Dr. Rivera throughout the remainder of his employment and reported stress at work and a feeling that he was being “sabotage[d],” but made no mention of discrimination. (Pl. Opp. Br. 179-83.)
8. Plaintiff and Ball Have Problematic Encounters and Another Tenant Complains
On October 3, 2018, Plaintiff returned to work following his suspension. (56.1 ¶ 42.) Plaintiff brought with him a recording device to record his interactions at work. (Pl. Dep. Tr. 2 at 205:3-6.) That day, Plaintiff and Ball had two problematic encounters, and both handymen reported these encounters to Mehmedovic. Ball told Mehmedovic that Plaintiff had approached Ball in a “threatening” manner and blocked Ball's path to exit the bathroom. (Mehmedovic Decl. ¶ 15.) Ball memorialized the incidents in a contemporaneous memorandum that he submitted to Mehmedovic. (Little Decl. Ex. K.) For his part, Plaintiff told Mehmedovic that Ball stared at him in a threatening manner. (Mehmedovic Decl. ¶¶ 16, 28-29.) Neither party reported any racial or otherwise derogatory remarks.
Plaintiff's recording from the incident revealed that Ball greeted Plaintiff on that day by saying “what's up doc,” which Plaintiff found to be offensive. (Pl. Dep. Tr. 2 at 207:16-208:10.) Plaintiff asserts in his opposition brief that Ball used unspecified “racial words” during this encounter that were captured on the audio recording, (Pl. Opp. Br. 96) but Plaintiff did not provide any specifics as to what “racial words” were used, did not provide a transcript from any audio recording or a copy of any recording, and admitted at his deposition that the recordings did not capture any remarks about Plaintiff's race or ethnicity (Pl. Dep. Tr. 2 at 211:1-4).
That same day, Mehmedovic reported the problematic encounters between the handymen to Price, who advised that he would come to the building to discuss the matter with the handymen. (Mehmedovic Decl. ¶ 16.) Mehmedovic told Plaintiff that Price was on his way and asked him to stay, but Plaintiff did not stay because he was experiencing high blood pressure and was feeling sick. (Pl. Dep. Tr. at 239:22-240:25). Plaintiff went to the Psychiatric Emergency Room at Metropolitan Hospital Center, where he was treated by Dr. Shailinder Singh. (Pl. Opp. Br. at 168.) Dr. Singh diagnosed Plaintiff with adjustment disorder with anxiety and gave him a sedative. (Id.)
Plaintiff states that he received medical bills from this visit and that these bills amount to harassment by Defendants. (Pl. Opp. Br. 96.) Plaintiff did not provide further information about this allegation, did not provide evidence to support the allegation, and did not raise the allegation in his complaint. As this assertion is vague, conclusory, and unsupported, the Court does not address it below.
On October 5 through October 7, 2018, Plaintiff continued to record his encounters at work using a recording device. Beginning on October 8, 2018, Plaintiff began recording his interactions on his cell phone. (Pl. Dep. Tr. 2 at 205:6-9.) Plaintiff has not identified any recordings in which anyone referenced his race or ethnicity. (Id. at 211:1-4; see also Pl. Opp. Br. generally.) However, Plaintiff stated that one recording includes a remark by a janitor informing Plaintiff that Mehmedovic had asked the janitor not to speak Spanish in the building because a tenant had complained about the use of Spanish. (Pl. Dep. Tr. 2 at 210:13-20.)
Plaintiff asserts that on November 15, 2018, Zalamea called Plaintiff via radio and stated that there was an emergency at Apartment 3-F with an a.c. unit and Ball was not responding, and that Plaintiff responded to the emergency. (Pl. Opp. Br. 97.) Plaintiff subsequently encountered Ball in the lobby, where the two individuals had a verbal confrontation. (Id.)
The following day, Ball reported the confrontation with Plaintiff to Mehmedovic. (56.1 ¶ 49.) Ball reported that Plaintiff had asked Ball to finish a work order that Plaintiff had started, and when Ball declined to finish the repair because he believed it was Plaintiff's responsibility, Plaintiff “got in his face and screamed, ‘do you want to hit me?'” (Mehmedovic Decl. ¶ 17.) Plaintiff testified at his deposition that Ball “came toward me, and I asked him if he was gonna hit me.” (Pl. Dep. Tr. 1 at 92:7-19.)
After Ball reported the confrontation, Price and Mehmedovic met with Plaintiff and Ball individually and explained that fighting in the lobby was unacceptable. (56.1 ¶¶ 51-53; Little Decl. Ex. L ¶¶ 18-19; Mehmedovic Decl. ¶¶ 17-18.) Price advised Plaintiff that he was responsible for any work orders he started regardless of what side of the building they came from and that he should not start a job and ask Ball to finish it. (Mehmedovic Decl. ¶ 20.)
The Amended Complaint alleges that on November 19, 2018, Plaintiff encountered Price on the sidewalk and asked him why he was “helping Mr. Ball against me.” (ECF No. 39 at 8.) The Amended Complaint alleges that Price responded: “I don't like fucking Spanish people, you don't even deserve[] to work here and you should go looking for a new job[,] asshole, you should continue drug trafficking in Colombia and stop wasting my time.” (Id.) Plaintiff has not cited any evidence supporting this allegation, and there is no reference to this alleged remark in his opposition briefing, his declarations, his deposition testimony, or any other evidence on the record, despite the fact that Plaintiff recorded his interactions during this period.
On November 20, 2018, another tenant, Jane Wilkins (“Wilkins”) sent a letter to Defendants complaining about Plaintiff's attitude, conduct, and performance. (Little Decl. Ex. N.) The letter stated that Plaintiff did not want to complete a repair in her apartment, was rude, and failed to complete a second repair the following day. (Id.) Wilkins stated that when Ball was back on duty, Ball completed the repair, and that Ball is “at the other end of the spectrum” from Plaintiff because Ball is “thorough” and “efficient.” (Id.)
9. Plaintiff's Employment is Terminated
On December 13, 2018, in the presence of Mehmedovic, Melowsky served Plaintiff with a letter terminating his employment. (56.1 ¶ 25.) The letter stated that Plaintiff's termination was based on his “repeated failure to follow orders, failure to perform [his] work in a satisfactory manner, engaging in threatening conduct towards co-workers, and failure to follow proper procedure regarding the reporting of a suspected gas leak, together with [his] refusal to improve [his] performance despite numerous warnings.” (Little Decl. Ex. O.) The letter noted that Plaintiff had already received a verbal warning regarding his “poor attitude” and “poor performance,” as well as a two-week suspension that was “based, in part, upon complaints from numerous tenants regarding poor or unfinished work,” but that his performance had only “continued to decline.” (Id.) The letter also stated that Plaintiff continued to refuse to perform work on one side of the building and continued to disregard directives from supervisors. (Id.)
On or about December 14, 2018, the Union initiated a grievance procedure on Plaintiff's behalf challenging his termination. (56.1 ¶ 65.) The grievance alleged that Plaintiff was unjustly discharged and was “being harassed” by Mehmedovic and Price during the performance of his work duties and sought “to have this harassment cease and desist.” (Little Decl. Ex. P.) Around the same time, Plaintiff filed a complaint against Defendants with the NLRB in which he alleged that his termination was in retaliation for his union activities. (Id. Ex. Q.) In a letter dated February 28, 2019, the NLRB dismissed the charges filed by Plaintiff as being without merit and subsequently denied Plaintiff's appeal of the decision. (Id. Ex. S.) The NLRB found “no evidence” that Defendants bore any hostility toward Plaintiff's union activity. (Id.)
10. Plaintiff Files a Charge with the EEOC
On January 28, 2019, Plaintiff filed a Charge of Discrimination with the EEOC (“EEOC Charge”), in which he alleged that he had been subjected to discriminatory treatment by Defendants based on his age and national origin. (Id. Ex. R.) The EEOC Charge asserts that on one unspecified occasion, Mehmedovic told Plaintiff he was a “slave for working in the building and had to take all verbal abuse from tenant[s];” that Mehmedovic “lied on complaints from tenants about my handy man work;” and that on one unspecified occasion, Ball called Plaintiff “a Faggot, Fucking Colombian, Fucking Spanish.” (Id.) The EEOC Charge asserts that Plaintiff “reported all these incidents to my supervisor and to our employer union;” and that Plaintiff was suspended, and subsequently terminated, as a result of “reporting discrimination.” (Id.) On July 11, 2019, the EEOC issued a Notice of Right to Sue.
Contrary to the assertion in the EEOC Charge, Plaintiff admitted at his deposition that he had not previously reported to Defendants that he was experiencing discriminatory conduct. (Pl. Depo Tr. 1 at 95:24-96:9; 104:3-9; 105:23-106:3.)
11. Plaintiff Initiates This Action
Plaintiff initiated this action on September 23, 2019 and filed the Amended Complaint on November 25, 2020. (ECF Nos. 2; 39.) The Amended Complaint alleges that Defendants subjected Plaintiff to discrimination on the basis of age, race, ethnicity, and national origin. It also asserted claims against the Union. Defendants and the Union moved to dismiss the Amended Complaint, and on September 30, 2021, the Honorable Paul A. Engelmayer partially granted the motion, dismissing with prejudice all claims except for Plaintiff's claims against Defendants as to discriminatory hostile work environment, suspension, and termination based on race/national origin, as well as retaliation, under Title VII, Section 1981, the NYSHRL and the NYCHRL. Cano v. SEIU Loc. 32BJ, 2021 WL 4480274, at *16 (S.D.N.Y. Sept. 30, 2021).
The parties then engaged in discovery. Plaintiff initially hired legal counsel to represent him during discovery but discharged his counsel shortly thereafter. (ECF No. 106.) The Court suggested that Plaintiff obtain legal assistance through a pro bono legal clinic in this District, but Plaintiff opted not to do so. (See ECF Nos. 50, 75, 90.)
After the close of discovery, the Court set a briefing schedule for Defendants' motion for summary judgment and Plaintiff's cross-motion for summary judgment. (ECF No. 136.) The order advised Plaintiff that his papers in opposition to Defendant's motion should include a numbered statement of the material facts he contends are and are not in dispute, with citations to the record evidence, in accordance with Federal Rule of Civil Procedure 56. (Id.)
Defendants filed a motion for summary judgment (“Motion”) on December 2, 2022, and simultaneously filed a certificate of service certifying that they served a copy of their brief on Plaintiff by email and regular mail. (ECF No. 140-47.) On December 12, 2022, Plaintiff filed a letter stating that he had not received Defendants' mailing until December 6, and requested the Motion be dismissed as untimely. (ECF No. 149.) The Court directed Plaintiff to include all of his arguments opposing the Motion, including any argument as to timeliness, in one opposition brief. (ECF No. 150.) The Court granted Plaintiff an extension of time to file the opposition brief. Plaintiff filed his opposition brief on February 1, 2023. (ECF No. 154.) The filing included a short memorandum of law that raised three procedural arguments; four selfdeclarations; and copies of several documents produced during discovery. Plaintiff did not file a numbered statement of the material facts he contends are in dispute. Defendants filed a reply on March 2, 2023. (ECF No. 156.) At the Court's request, Defendants also filed the transcripts from Plaintiff's depositions. (ECF Nos. 158, 160.) Plaintiff did not cross-move for summary judgment.
LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, a court may grant summary judgment when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the burden of demonstrating the absence of a question of material fact, and in making this determination, the Court must view all facts “in the light most favorable” to the non-moving party. Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008).
To survive a summary judgment motion, the opposing party must establish a genuine issue of fact by “citing to particular parts of materials in the record.” Fed.R.Civ.P. 56(c)(1)(A); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). The court must “examine the record as a whole, just as a jury would, to determine whether a jury could reasonably find an invidious discriminatory purpose on the part of an employer.” Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 106 (2d Cir. 2001), superseded in part on other grounds by Fed.R.Civ.P. 37(e). To receive consideration, the evidence in the record must be admissible at trial. Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001). The non-moving party “cannot rely solely on allegations in [the] pleading, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible” to defeat a summary judgment motion. Herlihy v. City of New York, 654 Fed.Appx. 40, 43 (2d Cir. 2016) (quotation marks and citations omitted); see also McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004) (citing Fed.R.Civ.P. 56(c)).
In determining whether there are genuine issues of material fact, the Court must “resolve any doubts and ambiguities and draw all reasonable inferences in favor of the nonmoving party.” Johnson v. L'Oreal USA, 2023 WL 2637456, at *3 (2d Cir. Mar. 27, 2023) (citation omitted). When the non-movant is a pro se litigant, the Court must afford him “special solicitude” in the construction of pleadings and motions. Sammarco v. Hoolan, 2014 WL 3639161, at *1 (S.D.N.Y. July 23, 2014) (citation omitted). However, the pro se litigant is not relieved of his duty to meet the necessary requirements to defeat the motion, Jorgensen v. Epic/Sony Recs., 351 F.3d 46, 50 (2d Cir. 2003) (citation omitted), and he must still “come forward with evidence demonstrating that there is a genuine dispute regarding material fact,” Bennett v. Bailey, 2010 W L 1459192, at *3 (S.D.N.Y. Apr. 9, 2010). The court is not obligated “to accept a pro se litigant's factual assertions where they contradict his own previous statements or are otherwise beyond belief.” Adeniji v. N.Y. State Off. of State Comptroller, 557 F.Supp.3d 413, 434 (S.D.N.Y. 2021) (Engelmayer, J.), aff'd sub nom. Adeniji v. Off. of N.Y. State Comptroller, 2022 WL 16543188 (2d Cir. Oct. 31, 2022) (quotation marks and citation omitted).
APPLICATION
I. Procedural Arguments
Plaintiff raises three procedural arguments in opposition to Defendants' Motion, all of which can easily be disposed of.
First, Plaintiff argues that Defendants' opening brief exceeded the 25-page limit set forth in the Court's Individual Rules of Practice, because the total number of pages, inclusive of the cover page and tables of contents and authorities, exceeded 25 pages. However, nonsubstantive matter such as the cover page and tables of contents and authorities do not count against the page limit. See Individual Practices in Civil Cases, Katharine H. Parker, at 5, available at https://www.nysd.uscourts.gov/hon-katharine-h-parker; see also Cao-Bossa v. N.Y. State Dep't of Lab., 2021 WL 3674745, at *12 (N.D.N.Y. Aug. 19, 2021), supplemented, 2021 WL 5321946 (N.D.N.Y. Nov. 16, 2021), aff'd, 2023 WL 2376071 (2d Cir. Mar. 7, 2023) (rejecting argument that the motion should be denied for exceeding the page limit and explaining that “[n]on-substantive matter such as cover page, table of contents, and signature block do not count toward” the limit). Excluding non-substantive matter, Defendants' brief is within the 25-page limit.
Second, Plaintiff argues that the Motion was untimely because it was due on December 2, 2022, but Plaintiff did not receive service by mail until December 5, 2022. This argument is meritless because Defendants timely filed the Motion on the day it was due and certified that they sent the papers to Plaintiff by email and mail that day. The fact that Plaintiff did not receive the mailing until the next business day is not relevant to the timeliness of the filing.
Moreover, the Court granted Plaintiff an extension of time to file his opposition brief, and Plaintiff was therefore not prejudiced by any delay in receiving the mailing.
Third, Plaintiff noted that the Mehmedovic Declaration filed in support of Defendants' motion did not include a signature. Defendants acknowledged in their reply that they had inadvertently omitted the signature page of the declaration, and they then filed a complete copy of the declaration with the signature page. The inadvertent omission of the signature page, which has since been corrected, is not a basis for denial of Defendants' Motion.
In addition to the above arguments, Plaintiff's papers also baselessly allege general misconduct by defense counsel, including arguing that they were “mean” at Plaintiff's deposition, that they are violating various judiciary laws and codes of ethics, and that they made “false” requests for medical records. (Pl. Opp. Br. 61-67.) These unsubstantiated accusations are not tied to any legal argument, and they are irrelevant to the underlying motion. Judge Engelmayer previously condemned Plaintiff for similar “screeds” and advised him that such “salvos” have “no place in this litigation.” Cano, 2021 WL 4480274, at *16. While Plaintiff has complained about defense counsel's conduct at his deposition, the Court notes that Plaintiff does not appear to contest any specific testimony except as reflected in the errata sheet he provided. Moreover, on a review of the deposition transcripts, the Court does not find anything problematic about defense counsel's questioning of Plaintiff.
II. Merits Arguments
I now turn to Defendants' argument that they are entitled to Summary Judgment on Plaintiff's claims. Because different legal standards apply to the various claims, I address the different claims in turn.
a. Discrimination Claims Based on Adverse Employment Actions
i. Legal Framework
Title VII, Section 1981, the NYSHRL, and the NYCHRL all protect against discriminatory practices in employment. Claims under all four statutes are analyzed under the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Johnson, 2023 WL 2637456, at *3.
As relevant here, claims brought under Title VII, Section 1981, and the NYSHRL receive the same analysis. The plaintiff must first demonstrate a prima facie case of employment discrimination by showing that: “(1) []he was within the protected class; (2) []he was qualified for the position; (3) []he was subject to an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination.” Menaker v. Hofstra Univ., 935 F.3d 20, 30 (2d Cir. 2019)). An “inference of discrimination” can arise from circumstances including, but not limited to, the employer's use of “ethnically degrading terms” or “invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group.” Littlejohn v. City of New York, 795 F.3d 297, 312 (2d Cir. 2015) (citation omitted).
Under Section 1981, a plaintiff must prove that discriminatory animus was the but-for cause of the adverse employment action, and under Title VII and the NYSHRL, a plaintiff need only show that his protected characteristic was a “motivating factor” for the action. Cardwell v. Davis Polk & Wardwell LLP, 2020 WL 6274826, at *17 (S.D.N.Y. Oct. 24, 2020) (citations omitted).
After a plaintiff establishes a prima facie case, the burden shifts to the defendant to offer “a legitimate, non-discriminatory reason for its action.” Johnson, 2023 WL 2637456, at *4 (citation omitted). If met, the burden shifts back to the plaintiff to “put forth adequate evidence to support a rational finding that the legitimate non-discriminatory reasons proffered by the employer were false,” and that discrimination was “more likely than not” the “real reason” for the conduct. Id. (citation omitted). The plaintiff's burden to establish that the defendant's reason is pretext for unlawful discrimination is a higher burden than required in making a prima facie case and requires more “sharpened and focused” facts. Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir. 1985).
Discrimination claims under the NYCHRL are more liberally construed than their state and federal counterparts and should be analyzed separately from federal and state claims. Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013). Under the NYCHRL, the plaintiff need not show that he was subject to a tangible adverse employment action but can show simply that he was “treated differently based on protected status.” Kerman-Mastour v. Fin. Indus. Regulatory Auth., Inc., 814 F.Supp.2d 355, 366 (S.D.N.Y. 2011) (quoting Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 40 (1st Dep't 2009)). The plaintiff also does not need to show that discriminatory animus caused the treatment but must show that the defendants' actions “were based, in part, on discrimination.” Allen v. A.R.E.B.A. Casriel, Inc., 2017 WL 4046127, at *12 (S.D.N.Y. Sept. 12, 2017). The NYCHRL causation standard is equivalent to the “motivating factor” standard under Title VII and the NYSHRL. Cardwell, 2020 WL 6274826, at *19-20. Accordingly, a plaintiff presents a prima facie case under the NYCHRL by showing that he was treated “less well than other similarly situated employees, at least in part for discriminatory reasons.” In re N.Y.C. Dep't of Educ., 2019 WL 1433163, at *13 (S.D.N.Y. Mar. 29, 2019) (citation omitted).
Under the NYCHRL, the employer can rebut the presumption of discrimination by presenting evidence of its legitimate, non-discriminatory motives, but “it is entitled to summary judgment on this basis only if the record establishes as a matter of law that ‘discrimination play[ed] no role' in its actions.” Mihalik, 715 F.3d at 110 n.8 (quoting Williams, 872 N.Y.S.2d at 40 n.27).
ii. Application to Facts
1. Prima Facie Case of Discrimination
For purposes of this motion, Defendants do not dispute that Plaintiff is a member of a protected class as a Hispanic individual from Colombia; that he was qualified for the positions of doorman and handyman in Defendants' buildings; and that he experienced the adverse employment actions of a suspension and a termination. (Def. Br. 8.) However, they contest that Plaintiff has shown that the adverse actions occurred under circumstances giving rise to an inference of discrimination, and accordingly argue that Plaintiff has not established a prima facie case of discrimination.
Plaintiff has not set forth a clear articulation of why he believes he was discriminated against on the basis of his race or national origin. Defendants asked Plaintiff numerous times during his deposition to explain the basis for the belief, but Plaintiff did not provide any meaningful explanation, instead stating, for example: “You have to ask that yourself. I'm not an attorney.” (Pl. Dep. Tr. 1 at 43:24-25; see also id. at 43:2-16; 48:9-15, 72:21-24). Plaintiff also never complained about race or national origin discrimination at any time prior to his January 28, 2019 EEOC Charge, including no mention of race or national origin discrimination in his complaints to Defendants, his union grievances, or even his discussions with his therapist.
That said, the Court must construe Plaintiff's submissions liberally because of his pro se status. Accordingly, the Court understands Plaintiff to assert two bases for a finding of an inference of discrimination: first, that Defendants provided more favorable treatment to Ball, an employee presumably not in the protected group (although the briefing and evidence is silent on this issue), and second, Defendants made remarks to Plaintiff that Plaintiff believes are indicative of discriminatory animus. I consider each basis in turn.
a. Unequal Treatment
As to the first basis, a plaintiff may raise an inference of discrimination by showing that the employer “treated him less favorably than a similarly situated employee outside his protected group.” Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). To show that the comparator was “similarly situated” to the plaintiff, the plaintiff must show that he and the comparator engaged in “comparable conduct.” Id. at 40. A plaintiff does not need to show that his and the comparator's conduct was “identical,” but must show “a reasonably close resemblance of the facts and circumstances.” Id. “When a plaintiff's misconduct is objectively more serious than that of a proposed comparator, differential treatment by the employer does not create an issue of fact that will defeat a motion for summary judgment.” Conway v. Microsoft Corp., 414 F.Supp.2d 450, 464 (S.D.N.Y. 2006). In considering whether the conduct is comparable, the Court should consider the conduct from the employer's perspective. Woodman v. WWOR-TV, Inc., 411 F.3d 69, 82 (2d Cir. 2005) (“[D]iscriminatory intent cannot be inferred . . . from circumstances unknown to the defendant.”); Dinkins v. Suffolk Transp. Serv., Inc., 2010 WL 2816624, at *10 (E.D.N.Y. July 15, 2010) (a comparator is not similarly situated to plaintiff if the employer is unaware of what the comparator supposedly did).
Plaintiff implies that Ball engaged in “comparable conduct” to Plaintiff because Ball contributed to issues with several a.c. units, entered “fake” work orders in the logbook, used a cell phone at work in violation of workplace policy, and generally harassed Plaintiff. Even assuming these largely unsupported assertions are true, such conduct is not “comparable” to Plaintiff's, because the evidence shows that Defendants received numerous tenant complaints about Plaintiff's performance and attitude, including complaints that he was rude and threatening, that he refused to perform repairs, and that he failed to respond appropriately to a suspected gas leak. Plaintiff has not alleged-let alone submitted evidence showing-that any tenants complained to management about Ball's demeanor or conduct; that Ball ever ignored a suspected gas leak or similarly failed to act in the face of a potentially dangerous situation; or that Ball ever refused to handle assignments.
Plaintiff also has not shown that Defendants were aware of Ball's purported improper cell phone usage, and Plaintiff admitted that Plaintiff also used his cell phone at work and was not disciplined on this basis. Moreover, although Plaintiff asserted that he complained to management about Ball's alleged harassment of Plaintiff, Ball similarly complained about Plaintiff's threatening conduct, and the evidence shows that Defendants investigated the conflict and informed Ball, along with Plaintiff, that the fighting was not acceptable. (Mehmedovic Decl. ¶¶ 19-20.) Ball had also been a handyman longer than Plaintiff without any apparent issues or complaints from other coworkers.
In light of these substantial differences, no reasonable jury could find that, from Defendants' perspective, Ball's alleged conduct was comparable to Plaintiff's. See Johnson, 2023 WL 2637456, at *4 (plaintiff not “similarly situated” to coworker who “maintain[ed] harsh and abrasive management styles” and occasionally missed meetings where there was no evidence the coworker “sent or posted anything approximating the text and social media messages that [plaintiff] did,” or that they engaged in the same “serial absences”); Cruz v. Coach Stores, Inc., 202 F.3d 560, 568 (2d Cir. 2000), superseded on other grounds by N.Y.C. Local L. No. 85 (same where plaintiff engaged in a physical fight and co-workers' behavior “involved words only”). Accordingly, the fact that Ball was not suspended or terminated is not sufficient to create an inference of discrimination under Title VII, Section 1981, or the NYSHRL.
Even under the NYCHRL's more lenient standards, Plaintiff is still required to show “comparable conduct” to make out a prima facie case of discrimination on the basis of unequal treatment. Bright-Asante v. Saks & Co., Inc., 2020 WL 1285620, at *5 (S.D.N.Y. Mar. 18, 2020), aff'd, 855 Fed.Appx. 40 (2d Cir. 2021) (granting motion for summary judgment on NYCHRL discrimination claim where defendant showed that the plaintiff's conduct was different from the proposed comparator's conduct). Accordingly, Plaintiff is also unable to state a prima facie case of discrimination under the NYCHRL on the basis of unequal treatment.
b. Defendants' Remarks
Plaintiff's second argument in support of an inference of discrimination is that Defendants made “menacing” remarks about him. For an employer's derogatory or invidious remarks to create an inference of discrimination, there must be some nexus between the comments and an adverse employment decision. Henry v. Wyeth Pharms., Inc., 616 F.3d 134, 149 (2d Cir. 2010). Courts consider: “(1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process). Id. (citations omitted). “The relevance of discrimination-related remarks does not depend on their offensiveness, but rather on their tendency to show that the decision-maker was motivated by assumptions or attitudes relating to the protected class.” Tomassi v. Insignia Fin. Grp., 478 F.3d 111, 116 (2d Cir. 2007), abrogated on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009).
The Amended Complaint alleged that a handful of explicitly derogatory remarks were made by various individuals, including Plaintiff's supervisors. In considering Defendants' Motion to Dismiss, the Court held that these allegations were sufficient to create an inference of discrimination. Cano, 2021 WL 4480274 at *8. However, Plaintiff has not discussed these alleged comments in his briefing, nor is there any evidence of these comments in the record, including Plaintiff's self-declarations and deposition testimony. Accordingly, Plaintiff has abandoned his claims as to these remarks. Adeniji, 557 F.Supp.3d at 438 (deeming claim abandoned where pro se plaintiff's summary judgment brief did not mention the derogatory remarks previously alleged in the complaint); Hayes v. Cty. of Sullivan, 853 F.Supp.2d 400, 418 (S.D.N.Y. 2012) (deeming claim abandoned where pro se plaintiff's affidavits in response to the summary judgment motion did not address the factual predicates for the claim); see also McKenna, 386 F.3d at 436 (a plaintiff cannot rely on allegations in the complaint to defeat a motion for summary judgment).
Plaintiff's interrogatory responses reference the derogatory comments alleged in the complaint, but Plaintiff did not sign the interrogatories and stated at his deposition that he did not review them. Accordingly, these responses are not admissible evidence. Smith v. Calypso Charter Cruises Inc., 2021 WL 4084182, at *4 (S.D.N.Y. Sept. 8, 2021) (Engelmayer, J.); Miroglio S.P.A. v. Conway Stores, Inc., 2008 WL 4600984, at *6 (S.D.N.Y. Oct. 15, 2008).
Plaintiff's opposition brief instead focuses on text messages from Price and Ball during the summer of 2018, which Plaintiff characterized as “menacing.” (Pl. Opp. Br. 44.) In particular, Plaintiff takes issue with text messages from Price stating: “What!!!” and “You can't fix it?” and “you are there now and can't figure out how to deal with these situations,” and a text message from Ball stating that he did not know where the main drain was located and that he was “usually able to snake out that line.” (Id. at 44-51.) However, despite Plaintiff's subjective characterization of these messages as “menacing,” no reasonable jury could find the content of these messages to be derogatory based on any protected characteristic. Rather-at most-the text messages indicate that Price and Ball were exasperated with Plaintiff and were not especially helpful to Plaintiff. As the remarks have no “racial overtones” whatsoever, they do not support an inference of discriminatory intent. Myers v. Doherty, 2022 WL 4477050, at *2 (2d Cir. Sept. 27, 2022) (defendant's remarks that she had seen plaintiff wearing bow ties and attending political fundraisers “did not have racial overtones” and therefore did not support an inference of discriminatory intent). The context of the remarks also does not permit an inference of discrimination because the messages were exchanged several months before the suspension and termination. These texts therefore have no probative value of discriminatory animus.
Plaintiff also testified at his deposition that a janitor informed Plaintiff that Mehmedovic had asked the janitor not to speak Spanish in the building. (Pl. Dep. Tr. 2 at 210:13-20.) As an out-of-court statement reporting an earlier out-of-court statement, the statement by the janitor constitutes “double hearsay.” Grochulski v. Henderson, 637 F.2d 50, 54 (2d Cir. 1980). “Double hearsay is not admissible unless each level of hearsay is covered by an exception to the hearsay rule.” Agriculture Ins. Co., Inc. v. Ace Hardware Corp., 214 F.Supp.2d 413, 416 (S.D.N.Y.2002). The underlying statement by Mehmedovic falls under a hearsay exception because it is a statement against interest by an agent of Defendants, but no exception is available as to the statement by the janitor. Accordingly, this statement by the janitor is inadmissible hearsay and should not be considered for purposes of this motion.
Regardless, the context of the comment is not probative of discrimination as to the suspension or termination because it was not made in connection with any employment decision about Plaintiff. Johnson, 2023 WL 2637456, at *4 (discriminatory remark not “connected with or temporally close to” the decision to terminate the plaintiff was not probative of discrimination). The content of the comment is also not particularly probative of discrimination because “[l]anguage, by itself, does not identify members of a suspect class,” and a classification on the basis of language is not necessarily probative of discrimination. Brewster v. City of Poughkeepsie, 447 F.Supp.2d 342, 351 (S.D.N.Y. 2006) (citation omitted); see also Quinones v. New York City, 2020 WL 5665142, at *8 (S.D.N.Y. Aug. 17, 2020), report and recommendation adopted, 2020 WL 6901340 (S.D.N.Y. Nov. 23, 2020) (supervisor's instruction to plaintiff to speak English was insufficient to show discrimination or hostile work environment). While evidence of a policy that singles out one language for unfavorable treatment could be probative of discrimination, Velasquez v. Goldwater Mem'l Hosp., 88 F.Supp.2d 257, 262-63 (S.D.N.Y. 2000), there is no evidence of such a policy here and Plaintiff does not allege that any such policy existed. To the contrary, he only alleges that one building janitor stated that he was asked not to speak Spanish on one occasion. There is no admissible evidence on the record that Plaintiff was ever asked not to speak Spanish in the building or that the building maintained any no-Spanish policy.
The only other admissible evidence asserting potentially invidious remarks is Plaintiff's January 28, 2019 EEOC Charge, which Plaintiff signed under penalty of perjury. The EEOC Charge asserts that two derogatory remarks were made. First, it asserts that on an unspecified date, Mehmedovic told Plaintiff he was a “slave for working in the building and had to take all verbal abuse from tenant[s].” (ECF 158-1 at 21.) This remark is also not referenced in Plaintiff's opposition briefing and may be considered abandoned. In any event, the remark does not reference Plaintiff's race or national origin, and given the record, it seems highly likely that this comment (assuming it was made) was a poorly worded attempt to advise Plaintiff to be more deferential to tenants, rather than any comment directed at his race or national origin. Given this context, the Court cannot infer that the alleged remark was directed at Plaintiff in a discriminatory manner. See Jeanty v. Precision Pipeline Sols., LLC, 2019 WL 3532157, at *3-4 (S.D.N.Y. Aug. 2, 2019) (defendant's comment that he and plaintiff were doing “slave work” could not reasonably be considered discriminatory). There is also no evidence that this comment was made in the context of an employment decision. Accordingly, this comment is not probative of discriminatory intent.
Second, the EEOC Charge asserts that on an unspecified date, Ball called Plaintiff a “Fucking Colombian, Fucking Spanish.” (ECF No. 2 at 14.) While the content of this alleged comment is derogatory, Ball was not Plaintiff's supervisor and had no say over the employment actions taken against Plaintiff. There is also no evidence that this remark was made in the context of any employment decision. Accordingly, this comment is also not probative of discriminatory intent as to the suspension and termination decisions. Johnson, 2023 WL 2637456, at *4 (discriminatory remarks did not give rise to an inference of discrimination because “they were neither made by a decision-maker, nor connected with or temporally close to” the decision to terminate the plaintiff).
Notably, Plaintiff's assertions regarding derogatory remarks have also been inconsistent across his EEOC Charge and the two complaints filed in this action and remain uncorroborated by any witnesses or other evidence. Moreover, even though Plaintiff recorded his workplace interactions during the time period between his suspension and his termination, the recordings did not pick up any invidious comments. As there is no evidence of any invidious comments made to Plaintiff by his supervisors or in connection with an employment decision, Plaintiff has failed to establish a prima facie case of discrimination on the basis of derogatory remarks under Title VII, Section 1981, and the NYSHRL.
Likewise, Plaintiff has not stated a prima facie case on this basis under the NYCHRL's more lenient standards, because the NYCHRL also requires a showing that Defendants' actions were based, at least in part, on discrimination. Allen, 2017 WL 4046127, at *12. Plaintiff has not presented evidence that discriminatory reasons played any role in Defendants' decisionmaking process, and accordingly has not established a prima facie case under the NYCHRL.
2. Legitimate and Non-Discriminatory Reasons
Even if the Court were to find that Plaintiff had established a prima facie case of discrimination, Defendants have met their burden to show legitimate and nondiscriminatory justifications for the employment actions they took, and thus have rebutted any presumption of discrimination. In particular, Defendants have shown that the suspension and termination were the result of numerous tenant complaints against Plaintiff, Plaintiff's engagement in workplace confrontations, Plaintiff's refusal to perform certain work, and Plaintiff's inability to satisfactorily perform work. These justifications, separately and in combination, are legitimate, non-discriminatory reasons for the adverse actions. See, e.g., Galimore v. City Univ. of N.Y. Bronx Cmty. Coll., 641 F.Supp.2d 269, 284-85 (S.D.N.Y. 2009) (defendant articulated legitimate and nondiscriminatory reasons for termination where it showed that the plaintiff received multiple reprimands for failure to adequately perform work duties and that students made complaints concerning her performance); Moss v. Enlarged City Sch. Dist., 81 Fed.Appx. 389, 390 (2d Cir. Dec. 2, 2003) (same where defendants showed that the plaintiff was not performing her job well and had personality conflicts with coworkers and administrators); Pace v. Paris Maint. Co., 107 F.Supp.2d 251, 264-65 (S.D.N.Y. 2000), aff'd, 7 Fed.Appx. 94 (2d Cir. 2001) (same where the evidence showed a “personality conflict” between the plaintiff and his supervisor leading to insubordination); Montanile v. Nat'l Broadcast Co., 211 F.Supp.2d 481, 488-89 (S.D.N.Y. 2002) (same where the employee refused to perform her work duties).
Defendants presented ample evidence substantiating these justifications, including copies of written complaints from tenants about Plaintiff; a signed declaration from Mehmedovic attesting to his personal experiences with Plaintiff; contemporaneous memoranda from Ball and Price providing their accounts of interactions with Plaintiff; and Plaintiff's own deposition testimony admitting that he struggled with “advanced” repairs, ignored a suspected gas leak, engaged in confrontations with Ball, and at times refused to perform work. Defendants also provided copies of the suspension and termination letters they provided Plaintiff, which plainly state these reasons as the basis for the actions.
Although the tenant complaints are out-of-court statements, they are admissible to show the context within which Defendants were acting and the motivation for their behavior. See Arista Records LLC v. Lime Grp. LLC, 784 F.Supp.2d 398, 420 (S.D.N.Y. 2011) (“Out-of-court statements are not hearsay if offered to show the context within which parties were acting, or to show a party's motive or intent for behavior.”). The tenant complaints are relevant for this purpose because the fact that Defendants received complaints from tenants about Plaintiff is a reason to discipline him, even if those complaints were inaccurate. Hnot v. Willis Grp. Holdings Ltd., 2005 WL 831664, at *6 (S.D.N.Y. Apr. 8, 2005). Plaintiff argues that the tenant complaints are improperly submitted by Little because Little “never witnessed” the events forming the basis of the complaints. (Pl. Opp. Br. 20.) This argument is unavailing, because Little is able to declare in her capacity as Defendants' corporate representative that Defendants received the complaints in question. She has not attested to the truth of the statements therein and need not do so.
3. Pretext
Because Plaintiff failed to point to evidence sufficient even to mount a prima facie case of disability discrimination, he by definition cannot withstand the more demanding inquiry at step three of the McDonnell Douglas analysis. Wein v. N.Y.C. Dep't of Educ., 2020 WL 4903997, at *15 (S.D.N.Y. Aug. 19, 2020) (Engelmayer, J.).
Nonetheless, Plaintiff attempts to show that Defendants' proffered justifications are pretextual by contesting the accuracy of the tenant complaints against him and arguing that the events did not play out as described by the tenants in their various complaints. However, “[i]t is well settled that in a discrimination case, we are decidedly not interested in the truth of the allegations against plaintiff. Rather, [w]e are interested in what motivated the employer.” Jimenez v. Delta Airlines, Inc., 2023 WL 2910530, at *2 (2d Cir. Apr. 12, 2023) (quotation marks and citations omitted) (affirming grant of summary judgment to the defendant because the evidence suggested the defendant believed the plaintiff had stolen a laptop). The evidence need only demonstrate that the employer believed that its charges against the plaintiff were true, and that it was motivated by this belief when it took the adverse employment action. Id. (citing Ya-Chen Chen v. City Univ. of New York, 805 F.3d 59, 74 (2d Cir. 2015)); see also Kennebrew v. N.Y.C. Hous. Auth., 2002 WL 265120, at *16 (S.D.N.Y. Feb. 26, 2002) (plaintiff's disagreements with her supervisor's perceptions of her work performance are not enough to show pretext). There is no evidence on the record to suggest that Defendants lacked a reasonable belief that Plaintiff had engaged in the conduct complained of in the tenant complaints, or that Defendants were not acting on this sincere belief when they suspended and ultimately terminated the plaintiff.
Plaintiff also suggests that one of the complaining tenants, Appel, complained about Plaintiff based on her alleged discriminatory animus against Hispanic individuals, because Plaintiff speculates that Appel similarly disliked the previous Hispanic handyman, Delfi. (Pl. Opp. Br. 99.) However, the question of a tenant's personal animus is not relevant because the tenant was not Plaintiff's employer and is not a defendant. It is sufficient that Defendants received a complaint from Appel stating that Plaintiff was “extremely rude and arrogant” and that they took this complaint at face value. Moreover, because there is no evidence that Defendants ever disciplined Delfi, this further undercuts Plaintiff's argument that his own treatment was discriminatory.
In a similar attempt to show pretext, Plaintiff argues that the complaint by Wilkins on November 20, 2018 was “fabricated” or “coordinated” by a “harassment team” as part of a “strategy” to “discredit” him. (Pl. Opp. Br. 96, 100.) As evidence, Plaintiff simply asserts that the handwriting on certain work orders is “different” without explaining how that supports a finding of any strategy to discredit him. (Id. at 100.) Such a speculative argument is insufficient to show pretext. Cameron v. Cmty. Aid For Retarded Children, Inc., 335 F.3d 60, 66 (2d Cir. 2003). Regardless, Plaintiff does not deny that Defendants received the complaint and provides no evidence suggesting Defendants knew the complaint was “fabricated.”
Finally, Plaintiff argues that there is no documented evidence of written tenant complaints from the East 86th Street location prior to the July 31, 2018 meeting at which Price spoke with Plaintiff about his attitude and performance. (Pl. Opp. Br. 20.) This is of no moment, because the written tenant complaints were received prior to the adverse employment actions in question-the suspension and termination-and these complaints are among many bases for both adverse actions. Plaintiff has not alleged that the July 31, 2018 meeting constituted an adverse employment action.
Therefore, construing all inferences in Plaintiffs' favor, the evidence at best suggests that Defendants conducted imperfect assessments of Plaintiff, but the evidence does not suggest that discriminatory animus was in any way a motivating factor behind Defendants' decisions suspending and then terminating Plaintiff's employment. Accordingly, Defendants are entitled to summary judgment on Plaintiff's Title VII, Section 1981, and NYSHRL claims of discrimination based on the suspension and termination.
Even under the more lenient standards of the NYCHRL, as discussed above, Plaintiff has not met his burden of showing that the conduct complained of was caused to any extent by a discriminatory motive. Defendants are thus entitled to summary judgment on Plaintiff's claims of discriminatory suspension and discriminatory termination under the NYCHLR as well.
b. Hostile Work Environment
i. Legal Framework
Hostile work environment claims are not analyzed using the McDonnell Douglas burdenshifting framework discussed above. Grant v. United Cerebral Palsy of N.Y. City, Inc., 2014 WL 902638, at *8 (S.D.N.Y. Mar. 7, 2014). Rather, to survive summary judgment on a claim for hostile work environment under Title VII, Section 1981, and for purposes of this action, the NYSHRL, a plaintiff must show that: (1) “the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of his or her work environment,” and (2) “a specific basis exists for imputing the conduct that created the hostile environment to the employer.” Daniel v. T & M Prot. Res., LLC, 689 Fed.Appx. 1 (2d Cir. 2017) (citation omitted). “A plaintiff must show not only that [he] subjectively perceived the environment to be abusive, but also that the environment was objectively hostile and abusive.” Duplan v. City of N.Y., 888 F.3d 612, 627 (2d Cir. 2018). The plaintiff also must show that “the hostile conduct occurred because of” the plaintiff's “protected characteristic.” Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 2015).
On October 11, 2019, the NYSHRL was amended such that the “severe and pervasive” standard was eliminated. However, the amendment is not retroactive, and the “severe and pervasive” standard applies to claims arising from conduct predating the effective date of the amendments, including Plaintiff's claims. McHenry v. Fox News Network, LLC, 2020 WL 7480622, at *8 (S.D.N.Y. Dec. 18, 2020).
“Isolated incidents usually will not suffice to establish a hostile work environment,” but “even a single episode of harassment can establish a hostile work environment if the incident is sufficiently severe” when evaluated in the “cumulative reality of the work environment.” Daniel, 689 Fed.Appx. at 1 (citation omitted) (declining to decide whether the one-time use of “a severe racial slur” from a supervisor to a subordinate was sufficient to support a hostile work environment claim). When a plaintiff asserts that he experienced a hostile work environment based on racial slurs or other offensive comments, courts look at “the quantity, frequency, and severity” of the verbal abuse to determine if the cumulative impact created an unlawful hostile environment. Schwapp v. Town of Avon, 118 F.3d 106, 112 (2d Cir. 1997). “[I]ncidents comprising a hostile work environment claim need not refer to any trait or condition on the basis of which the discrimination has occurred, so long as the incidents can reasonably be interpreted as having taken place on the basis of that trait or condition.” Svenningsen v. Coll. of Staten Island, 2003 WL 21143076, at *2 (E.D.N.Y. Mar. 28, 2003).
As to hostile work environment claims brought under the NYCHRL, the “severe and pervasive” standard does not apply. A plaintiff need only demonstrate that he was treated “less well” than other employees because of his protected characteristic. Mihalik, 715 F.3d at 109. “The conduct alleged must, however, exceed what a reasonable victim of discrimination would consider petty slights and trivial inconveniences,” and “mere personality conflicts will not suffice to establish a hostile work environment.” Reichman v. City of New York, 117 N.Y.S.3d 280, 285 (2020) (quotation marks and citations omitted).
ii. Application to Facts
1. Alleged Hostile Work Environment at 165 East 35th
Plaintiff asserts that from approximately November 2016 until January 2017, during the period of time he worked as a doorman at 165 East 35th, he was subject to a discriminatory hostile work environment because he was being “sabotaged” by his coworkers and Orellana refused to review a video that would have supported Plaintiff's concerns. Plaintiff references two incidents, namely a missing package and missing dry cleaning, both of which Plaintiff eventually located. Plaintiff did not witness his coworkers hide the items, and he has not offered evidence to support his conjecture that the items were purposely hidden. Tagle denied Plaintiff's accusations and explained that sometimes packages would get inadvertently “pushed in” to the package room. (Little Decl. Ex. E.) Such speculative allegations of “sabotage” cannot defeat a motion for summary judgment. Evans-Gadsden v. Bernstein Litowitz Berger & Grossman, LLP, 491 F.Supp.2d 386, 401 (S.D.N.Y. 2007), aff'd, 323 Fed.Appx. 59 (2d Cir. 2009) (granting summary judgment to defendant on hostile work environment claim based on speculative allegations of workplace sabotage).
In addressing the motion to dismiss, Judge Engelmayer held that Plaintiff did not state a claim of discrimination regarding the incidents that occurred at 165 East 35th. Cano, 2021 WL 4480274, at *1, n.4. Despite that, the parties submitted argument regarding this time period, and the Court addresses it for the sake of completeness.
Even assuming these incidents of sabotage occurred, two incidents of hiding packages does not amount to a workplace “permeated with discriminatory intimidation.” See Mallison v. Ct. Off. of Early Childhood, 2022 WL 6771028, at *7 (D. Conn. Oct. 11, 2022) (no hostile work environment where coworker intentionally provided plaintiff with incorrect financial information in an effort to make her look bad during meetings). Moreover, Plaintiff has not provided any evidence to suggest this sabotage was based on his race or national origin. See Evans-Gadsden, 491 F.Supp.2d at 401 (workplace sabotage “would only be relevant” to a hostile work environment claim if it was illustrative of “conduct connected to” the plaintiff's race). Plaintiff does not allege that any comments about his race or national origin were made by anyone at 165 East 35th, and he admits that at the time, he had “no clue” why his coworkers were trying to set him up. (Pl. Opp. Br. 18.) He has failed to articulate why he believes any sabotage was motivated by a discriminatory animus, including when asked directly at his deposition. (Pl. Dep. Tr. 1 at 43:24-25).
Accordingly, Plaintiff cannot make out a claim for hostile work environment based on the incidents occurring at 165 East 35th under Title VII, Section 1981, and the NYSHRL. Plaintiff similarly cannot make out a claim for hostile work environment under the more lenient standards of the NYCHRL, as this statute still requires a showing that harassment was because of a protected characteristic. Sotomayor v. City of New York, 862 F.Supp.2d 226, 261 (E.D.N.Y. 2012), aff'd, 713 F.3d 163 (2d Cir. 2013) (dismissing NYCHRL hostile work environment claim because the plaintiff did not show that any hostile work environment “was created because of her race, age, or national origin”). Defendants are thus entitled to summary judgment on Plaintiff's hostile work environment claims for alleged harassment at 165 East 35th.
2. Alleged Hostile Work Environment at 400-401 East 88th
Plaintiff asserts claims for a hostile work environment from July 2018 through December 2018 during the period of time when he was working as a handyman at 400-401 East 88th. In particular, Plaintiff asserts the following categories of purportedly harassing behavior:
• Alleged sabotage: Ball allegedly attempted to make Plaintiff look bad by creating “fake” work orders in the logbook, trash talking Plaintiff, and, on one occasion, putting a lid on a drainpipe.
• Remarks: On an unspecified occasion, Ball called Plaintiff a “Fucking Colombian, Fucking Spanish” (Little Dec., Ex. R), and he sent Plaintiff text messages that Plaintiff found to be menacing (Pl. Opp. Br. 44-51).
• Threatening conduct: Plaintiff asserts that on two occasions on October 3, 2018, Ball stared at him in a threatening manner, and on November 15, 2018, Ball approached Plaintiff in the building lobby and the men argued. (Mehmedovic Decl. ¶¶ 16, 28-29; Pl. Dep. Tr. 1 at 92:7-19; Pl. Dep. Tr. 2 at 207:16-208:10.)
Plaintiff further asserts that despite complaining of the above conduct, Defendants failed to intervene.
As an initial matter, Plaintiff has failed to demonstrate conduct that is either sufficiently severe or pervasive to assert a hostile work environment claim for purposes of Title VII, Section 1981, and the NYSHRL.
To start, the allegations of sabotage are speculative and unsupported by the record. Plaintiff relies solely on speculation regarding Ball's handwriting to support the assertion that Ball created “fake” work orders, but it is undisputed that Ball was permitted to create work orders where needed, and so it is irrelevant whether some work orders were in Ball's handwriting. Plaintiff points to no evidence to permit a jury to infer that any work orders created by Ball were illegitimate. Plaintiff similarly points to no evidence other than hearsay to suggest that Ball placed a lid on a drainpipe that prevented Plaintiff from repairing an a.c. unit, and no evidence at all to suggest that the lid was placed there for an improper purpose. Likewise, Plaintiff has no evidence to support the allegation that Ball was “trash talking” him. Such speculative and conclusory assertions cannot overcome a motion for summary judgment. Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010) (plaintiff's affidavits asserting workplace sabotage were conclusory and did not create a triable issue of fact).
As to the handful of “menacing” remarks, only one alleged remark is explicitly derogatory based on race/national origin, and most are objectively non-offensive. For example, the text from Ball stating that Ball did not know where the main drain was and that Plaintiff would have to “trace” the drain is, considered objectively, simply not harassing or problematic.
Likewise, Ball's use of the iconic Looney Toons catchphrase, “What's up, doc?” may have been corny, but it is objectively not harassing or threatening in any way.
The one alleged derogatory comment by Ball that Plaintiff is “Fucking Colombian, Fucking Spanish” appears only in the EEOC Charge, and not in any other admissible evidence or Plaintiff's Opposition Brief. As such, Plaintiff may be considered to have waived his claim as to this remark. Regardless, this one remark by a coworker on one occasion, and that was not made in the presence of any others, is not sufficiently severe or pervasive to constitute a hostile work environment under Title VII, Section 1981, or the NYSHRL. See, e.g., Daniel v. T&M Prot. Res. LLC, 2018 WL 3621810, at *19 (S.D.N.Y. July 19, 2018) (Engelmayer, J.), aff'd, 771 Fed.Appx. 123 (2d Cir. 2019) (occasional references to plaintiff as a “homo” were not sufficiently severe or pervasive to establish a hostile work environment under Title VII); Alvarado v. Nordstrom, Inc., 685 Fed.Appx. 4, 6-7 (2d Cir. 2017) (three derogatory comments by colleagues coupled with generally aggressive behavior by one colleague was not sufficient to establish a hostile work environment under Section 1981, the NYSHRL, and the NYCHRL); see also Black v. Buffalo Meat Serv., Inc., 2022 WL 2902693, at *2 (2d Cir. July 22, 2022) (in considering a claim for constructive discharge based on intolerable work conditions, opining that “no reasonable jury” could find that a co-worker's one-time use of a racial slur created a hostile work environment, and holding that the isolated use of a racial slur is thus insufficient to support a constructive discharge claim).
Finally, Plaintiff asserts two incidents of alleged threatening stares, and one incident of verbal fighting in the building lobby. Plaintiff has provided very little detail regarding these incidents and Defendants put forward evidence including contemporaneous memoranda suggesting that Plaintiff was the one engaging in threatening behavior toward Ball. (56.1 ¶¶ 43-52.) Still, assuming these incidents occurred as Plaintiff described them, the case law cautions that these incidents do not amount to conduct that is either sufficiently severe or pervasive so as to objectively alter the conditions of Plaintiff's employment. See, e.g., Myers v. Doherty, 2021 WL 5599502, at *12-13 (S.D.N.Y. Nov. 30, 2021) (Engelmayer, J.), aff'd, 2022 WL 4477050 (finding that allegations of “hostile looks” and “belittling” comments were not sufficient to state a hostile work environment claim for purpose of motion to dismiss); Howell v. Montefiore Med. Ctr., 2016 WL 880373, at *9 (S.D.N.Y. Feb. 16, 2016) aff'd, 675 Fed.Appx. 74 (2d Cir. 2017) (a “few incidents” of the use of racial slurs did not establish a hostile work environment under Title VII); Evans-Gadsden, 491 F.Supp.2d at 401 (the record did not “come close” to asserting a claim for hostile work environment where a coworker made one “racially-motivated remark” and plaintiff was subject to “document sabotage” by coworkers). This is a sufficient basis to dismiss the hostile work environment claims under Title VII, Section 1981, and the NYSHRL but not to dismiss the claim asserted pursuant to the NYCHRL, which does not require a showing that the conduct was severe or pervasive.
However, even under the lower standards of the NYCHRL, the plaintiff must show that the alleged hostility amounted to more than “merely petty” or “trivial[]” conduct. Alvarado, 685 Fed.Appx. at 8; see also Benzinger v. Lukoil Pan Americas, LLC, 447 F.Supp.3d 99, 122 (S.D.N.Y. 2020) (Engelmayer, J.) (citation omitted) (“Even under the NYCHRL, ‘petty slights or trivial inconveniences ... are not actionable.'”). Plaintiff's assertions of hostile work environment fail to meet even this lower barrier. In Alvarado, the Second Circuit affirmed dismissal of a NYCHRL hostile work environment claim brought by a Hispanic employee based on similar circumstances as those present here. There, the plaintiff's colleagues had made derogatory comments about him on three occasions, and one colleague told the plaintiff that she wanted him to punch her so that he would be fired, posted violent messages on social media, and twice became enraged and agitated with him on the sales floor. The Second Circuit found that although the alleged conduct was “hurtful,” the conduct ultimately amounted to nothing more than petty comments and trivial conduct.
Similarly in this case, Plaintiff has alleged only one derogatory remark; two threatening stares; and one incident of verbal fighting. As in Alvarado, the alleged hostile conduct is not sufficient to amount to a hostile work environment even under the NYCHRL's lower standard. See also, e.g., Matias v. Montefiore Med. Ctr., 2022 WL 4448585, at *14 (S.D.N.Y. Sept. 23, 2022) (although plaintiff provided evidence of “an unpleasant work environment,” “scuffles” with coworkers, and remarks by coworkers about her religion, the evidence did not “establish mistreatment that is ‘worse than ‘petty slights and trivial inconveniences.''”); Yost v. Everyrealm, Inc., 2023 WL 2224450, at *13 (S.D.N.Y. Feb. 24, 2023) (Engelmayer, J.) (allegations of “a handful of comments relating to sex” fell “far short of stating an NYCHRL claim” for hostile work environment); Reichman, 117 N.Y.S.3d at 285-86 (antisemitic remark made to plaintiff did not amount to a hostile work environment for purposes of the NYCHRL).
Plaintiff's claims for hostile work environment also fail on a separate basis: the evidence is not sufficient to establish that Ball's conduct was “because of” Plaintiff's protected characteristics, i.e., his race or national origin. This is a critical component for a hostile work environment claim under Title VII, Section 1981, the NYSHRL, and the NYCHRL. Alvarado, 685 Fed.Appx. at 9 (considering Section 1981, the NYSHRL, and the NYCHRL); Torres v. City of New York, 2019 WL 1765223, at *5 (S.D.N.Y. Apr. 22, 2019) (considering Title VII, the NYSHRL, and the NYCHRL).
Here, the only evidence connecting any “harassing” conduct to a discriminatory animus by Ball is the one alleged use of racial language by Ball when he stated, “fucking Colombian, fucking Spanish.” However, “a single comment by a coworker” is generally “too isolated to raise an inference of a discriminatory animus” in the context of a hostile work environment claim. Davis-Molinia v. Port Auth. of N.Y. & N.J., 2011 WL 4000997, at *12 (S.D.N.Y. Aug. 19, 2011), aff'd, 488 Fed.Appx. 530 (2d Cir. 2012). In other words, “one race-based comment” is “not enough to render all of [a coworker's] aggressive behavior . . . race-based.” Alvarado, 685 Fed.Appx. at 8; see also Evans-Gadsden, 491 F.Supp.2d at 401 (use of one racial remark is insufficient to allow a finding that the conduct in question was related to the plaintiff's race).
Even if a jury were to find that Ball maintained a discriminatory animus toward Plaintiff, Plaintiff's hostile work environment claim fails on a third basis: there is not sufficient evidence to impute Ball's conduct to Plaintiff's employer, i.e. Defendants. Imputation of liability is also a critical component of hostile work environment claims brought pursuant to Title VII, Section 1981, the NYSHRL, and the NYCHRL. Rojas v. Roman Cath. Diocese of Rochester, 660 F.3d 98, 106 (2d Cir. 2011) (considering Title VII and the NYSHRL); Alvarado v. Jeffrey, Inc., 149 F.Supp.3d 486, 501 (S.D.N.Y. 2016), aff'd in part and vac'd in part, Alvarado, 685 Fed.Appx. 4 (considering Section 1981, the NYSHRL, and the NYCHRL). Where a hostile work environment is perpetrated by a coworker, liability is only imputed to the employer if the plaintiff shows that “the employer either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.” Rojas, 660 F.3d at 107.
Plaintiff has not established either element here because he does not assert that Defendants lacked a reasonable avenue for complaint, and he admits that he never specifically complained to Defendants about any discriminatory conduct and never informed Defendants of any racial remarks by Ball or others. (Pl. Depo Tr. 1 at 95:24-96:9; 104:3-9; 105:23-106:3.) Rather, to the extent Plaintiff complained about Ball's conduct, he complained only of generalized conflict, and Ball, in turn, also complained to Defendants about the ongoing conflict with Plaintiff. (56.1 ¶¶ 42-45, 49-50, 56.) The record shows that Defendants were aware of what they understood to be general hostility between the handymen, and that they attempted to address the conflict by speaking with Ball and Plaintiff about it on several occasions and advising both individuals that the fighting was not acceptable. (Id. at ¶¶ 22, 47, 51, 53, 112.)
Because Plaintiff did not complain about discriminatory conduct from Ball, a reasonable jury could not find Defendants liable for a hostile work environment. Bentley v. AutoZoners, LLC, 935 F.3d 76, 92-93 (2d Cir. 2019) (evidence did not show that the employer knew of coworker's sexist comments and therefore no reasonable jury could find defendant liable for the hostile work environment); Alvarado, 149 F.Supp.3d at 501 (liability could not be imputed to employer where plaintiff “present[ed] no evidence that any manager . . . even knew that” statement had been made); Mejia v. City of New York, 2020 WL 2837008, at *16-17 (E.D.N.Y. May 30, 2020) (granting summary judgment on NYCHRL hostile work environment claim because no evidence indicated that the employer knew or should have known of the offensive comments or participated in the conduct underlying the claim).
Because Plaintiff has not shown a dispute of material fact that could establish a discriminatory hostile work environment that was imputable to Defendants, Defendants are entitled to summary judgment on the hostile work environment claims under Title VII, Section 1981, the NYSHRL, and even the more lenient NYCHRL.
c. Retaliation Claims
i. Legal Framework
Retaliation claims brought under Title VII, Section 1981, and the NYSHRL are evaluated using the McDonnell Douglas burden shifting framework, described above. Hicks, 593 F.3d at 164. To establish a prima facie case of retaliation under these statutes, a plaintiff must establish that: (1) he engaged in a statutorily protected activity; (2) the defendant was aware of his participation in the protected activity; (3) the defendant took an adverse employment action against him; and (4) a causal connection existed between the protected activity and the adverse employment action. Id.
To establish the first prong of the prima facie case, the plaintiff must show that he “protest[ed] or oppose[d] statutorily prohibited discrimination.” Bryant v. Verizon Commc'n Inc., 550 F.Supp.2d 513, 537 (S.D.N.Y. 2008). The complaints must be about some act that the employee reasonably and in good faith believes is unlawful under the anti-discrimination laws. Batiste v. City Univ. of N.Y., 2017 WL 2912525, at *10 (S.D.N.Y. July 7, 2017). “Complaining about general unfairness, unaccompanied by any indication that plaintiff's protected class status caused the unfairness, does not qualify as protected activity.” Id. (citing, inter alia, Rojas, 660 F.3d at 107-08 (2d Cir. 2011)).
The second prong requires that the employer “understood, or could reasonably have understood, that the plaintiff's opposition was directed at” discriminatory conduct. Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1988). “The onus is on the speaker to clarify to the employer that he is complaining of unfair treatment due to his membership in a protected class and that he is not complaining merely of unfair treatment generally.” Aspilaire v. Wyeth Pharms., Inc., 612 F.Supp.2d 289, 308-09 (S.D.N.Y. 2009); see also Rojas, 660 F.3d at 108 (affirming dismissal of retaliation claims because the plaintiff's complaints were “generalized” and defendants “could not reasonably have understood that she was complaining of ‘conduct prohibited by Title VII'”).
If the prima facie burden is met, a “presumption of retaliation” arises, which the employer may rebut by articulating a legitimate, non-retaliatory reason for the adverse employment action. Ya-Chen Chen, 805 F.3d at 70 (citation omitted). If met, “the burden shifts back to the plaintiff to prove that the desire to retaliate was the but-for cause of the challenged employment action.” Id. (citations omitted) (discussing Title VII); Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 140 S.Ct. 1009, 1014 (2020) (discussing Section 1981 and Title VII retaliation claims); Benzinger, 447 F.Supp.3d at 125 n.17 (explaining that courts in this Circuit generally apply the but-for causation standard to NYSHRL retaliation claims).
“But-for” causation does not require a showing that retaliation was an employer's sole motive, but the plaintiff must show that retaliation was more than simply a “substantial” or “motivating” factor in the decision. Benzinger, 447 F.Supp.3d at 125.
The same standards apply to retaliation claims under the NYCHRL, with a few exceptions. First, to establish the second prong of the prima facie case, the plaintiff does not need to show that he “expressly mention[ed] discrimination as the source of his discontent.” Benzinger, 447 F.Supp.3d at 129 (citing Albunio v. City of New York, 16 N.Y.3d 472, 479 (2011)). However, the Plaintiff must set forth evidence that would permit a jury to find that the plaintiff's activity could reasonably have put his employer “on notice” about unlawful discrimination. Guzman v. Crothall Healthcare Inc., 2021 WL 5048993, at *17 (E.D.N.Y. Sept. 29, 2021) (plaintiff's letter to human resources complaining that she felt she was being “singled out” was not protected activity for purposes of a NYCHRL retaliation claim); see also Fattoruso v. Hilton Grand Vacations Co., LLC, 525 Fed.Appx. 26, 28 (2d Cir. 2013) (dismissing NYCHRL retaliation claim because the plaintiff's “belief that he was being treated ‘unfairly'” did not “transform his complaints to [the employer] into charges over unlawful discrimination”).
Second, rather than proving an adverse employment action at prong three, the plaintiff need only show that “something happened that would be reasonably likely to deter a person from engaging in protected activity.” Benzinger, 447 F.Supp.3d at 129 . Finally, rather than showing but-for causation, the plaintiff need only show that retaliation played any part in the employer's decision. Dodd v. City Univ. of N.Y., 489 F.Supp.3d 219, at *37 (S.D.N.Y. 2020).
ii. Application to Facts
1. Prima Facie Case
Plaintiff asserts that he engaged in protected activity because he complained to Defendants “many times” about perceived harassment at work and that Defendants retaliated against him because of these complaints by suspending him on September 18, 2018 and terminating him on December 13, 2018. Viewing the evidence in the light most favorable to Plaintiff, the Court finds that Plaintiff complained to Defendants on the following occasions:
The Court does not consider complaints made after the termination occurred or complaints of which Defendants had no knowledge, because such complaints could not have had any causal role in the suspension or termination.
• On or about July 28, 2018, Plaintiff texted Price that Plaintiff was unable to fix a leak in Apartment 2-L, and that Ball had not assisted Plaintiff with tracing the main drain. The text stated: “I called marty and he just said, you got to trace it. This guy working here over 15?years and he doesn't know....” (See ECF No. 158-1.)
• At the July 31, 2018 meeting that Defendants characterize as a “verbal warning,” Plaintiff told Price, Little, and Orellana that the reason he could not fix the leak in Apartment 2-L was because Ball “put a lid on the pipe.” (Pl. Opp. Br. 19.)
• In September 2018, Plaintiff filed grievances with the Union challenging his suspension as unjust and, Plaintiff alleges, asserting that he was subject to “harassment.” (ECF No. 39 at p. 9.) On November 20, 2018, Defendants received notice from the NLRB that Plaintiff had challenged the union's response to the grievances, and the notice informed Defendants that Plaintiff's grievance concerned “harassment on the job.”
• On October 3, 2018, Plaintiff complained to Mehmedovic that Ball was staring at him in a threatening manner. (Mehmedovic Decl. ¶¶ 16, 28-29.)
Plaintiff's prima facie case fails at the first prong, because he has not established that he engaged in “protected activity.” On the contrary, Plaintiff admits that he did not inform Defendants at any point prior to his termination that he believed he was being subjected to discriminatory conduct based on his race or national origin. (Pl. Depo Tr. 1 at 95:24-96:9; 104:3-9; 105:23-106:3.)
Plaintiff used the word “harassment” in a union grievance of which Defendants were provided notice, and asserts that he also generally complained about conduct that, in Plaintiff's mind, amounted to harassment, such as the threatening stares and unhelpful text messages. Plaintiff argues that it is sufficient that he complained of general “harassment,” because “harassment is a form of discrimination.” (Pl. Dep. Tr. 1 at 102:2-25.) This is not persuasive. As discussed above, the discrimination laws do not protect against general harassing conduct, but only against harassment that is because of the victim's protected characteristic. Davis-Molinia, 2011 WL 4000997, at *12. “Generalized claims of unfair or even abusive treatment . . . are insufficient” to constitute protected activity. Gonzalez v. NYU Langone Med. Ctr., 2019 WL 4194313, at *5 (S.D.N.Y. Sept. 3, 2019) (Engelmayer, J.) (finding that the plaintiff's written complaint to her employer regarding “countless incidents of harassment in [her] department, [and] untold measures of disrespect and physical aggression” did not constitute a protected activity because the letter was “silent as to any protected characteristic.”)
While the NYCHRL has a more lenient standard to show engagement in “protected activity,” the NYCHRL still requires that the Plaintiff set forth evidence that would permit a jury to find that the activity could reasonably have put his employer “on notice” about unlawful discrimination. Guzman, 2021 WL 5048993, at *17; see also Farzan v. Wells Fargo Bank, N.A., 2013 WL 6231615, at *27 (S.D.N.Y. Dec. 2, 2013), aff'd sub nom. Farzan v. Genesis 10, 619 Fed.Appx. 15 (2d Cir. 2015) (granting summary judgment to defendant on NYCHRL retaliation claim because the plaintiff did not “ma[ke] clear her disapproval of the defendant's discrimination”). Even under the more lenient standard of the NYCHRL, Plaintiff has failed to establish engagement in a protected activity because he has not shown that his complaints could have put Defendants on notice that he was challenging discriminatory conduct. See Pouncy v. Advanced Focus LLC, 2017 WL 4280949, at *6 (S.D.N.Y. Sept. 25, 2017), aff'd, 763 Fed.Appx. 134 (2d Cir. 2019) (plaintiff's complaint of “bias[ed] practices” was not protected activity under the NYCHRL because there was no evidence the plaintiff “allude[d] once to race, gender, national origin, religion or any other protected characteristic as playing a role” in the conduct).
Plaintiff has also failed to establish the second prong of the prima facie case-that Defendants “could reasonably have understood” that his complaints were “directed at” discriminatory conduct, because it is undisputed that Plaintiff did not clarify as much to his employer, and there is no evidence suggesting that Defendants were aware through any other means that Plaintiff felt he was being discriminated against based on his race or national origin. See Galdieri-Ambrosini, 136 F.3d at 292.
Accordingly, Plaintiff has not established a prima facie case of retaliation under Title VII, Section 1981, the NYSHRL, or even the more lenient NYCHRL.
2. Legitimate Non-Discriminatory Reasons and Pretext
Even assuming Plaintiff established a prima facie case of retaliation, Defendants have provided ample evidence supporting their contention that the suspension and termination were for legitimate, non-discriminatory reasons. As discussed in greater detail above, Defendants submitted evidence showing that they received numerous tenant complaints against Plaintiff; and that Plaintiff was engaging in workplace confrontations, was refusing to perform certain work, and was not satisfactorily performing his work. Defendants provided copies of the suspension and termination letters they provided Plaintiff contemporaneous to taking the actions in question, which plainly state these reasons as the bases for the actions. This evidence is sufficient to rebut any presumption of retaliation. See Smith, 440 F.Supp.3d at 344-45 (evidence that defendants issued a verbal warning to the plaintiff because she had a confrontation with a coworker and that they placed additional scrutiny on her because of complaints received from other employees was sufficient to rebut a prima case of retaliation).
For the same reasons discussed above, Plaintiff also has not shown that Defendants' proffered justifications are pretextual. See Wong v. Blind Brook-Rye Union Free Sch. Dist., 2022 WL 17586324, at *15 (S.D.N.Y. Dec. 12, 2022) (Plaintiff “may have raised fact issues as to whether her conduct was as problematic as Defendants make out, but she has provided no evidence from which a rational juror could conclude that retaliation for protected activity was at work.”). Accordingly, Defendants are entitled to summary judgment on Plaintiff's retaliation claims under Title VII, Section 1981, the NYSHRL, and even the more lenient NYCHRL.
CONCLUSION
The Court respectfully recommends that Defendants' Motion for Summary Judgment be granted in its entirety and that this action be dismissed with prejudice.
The Clerk of the Court is respectfully directed to mail a copy of this Report and Recommendation to the Pro Se Plaintiff.
NOTICE
Plaintiff shall have seventeen days and Defendants shall have fourteen days from the service of this Report and Recommendation to file written objections to the Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)).
A party may respond to another party's objections after being served with a copy. Fed.R.Civ.P. 72(b)(2). If any party files written objections to this Report and Recommendation, the plaintiff shall have seventeen days to serve and file a response and Defendants shall have fourteen days to serve and file a response. Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Paul A. Engelmayer at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Engelmayer. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn , 474 U.S. 140 (1985).