Opinion
00 Civ. 3705 (RWS)
March 22, 2002
Philip Akakwam, Esq., S. Felix Ngati, Esq., Brooklyn, NY, for Plaintiff.
Stephen C. Pascal, Esq., Silverberg, Stonehill, Goldsmith, New York, NY, for Defendant.
O P I N I O N
Defendant Turn On Products, Inc. ("Turn On") has moved under Rule 56, Fed.R.Civ.P., for summary judgment dismissing the complaint of plaintiff Marie Denise-Hyppolite ("Hyppolite") alleging discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; § 1981; and New York Executive Law § 296. For the reasons set forth below, the motion is granted.
Prior Proceedings
The complaint in this action was filed on May 17, 2000, alleging that Hyppolite was subjected to national origin-related hostile work environment arising out of incidents during which she was called a "braceros," a thief, made the subject of unfair incident write-ups and physical assault. Issue was joined, and discovery proceeded.
The instant motion for summary judgment was heard and marked fully submitted on January 16, 2002.
The Facts
The facts are set forth in the parties' Local Rule 56.1 Statements and are not in dispute except as noted.
Hyppolite is a black female of Haitian national origin. She began her employment with Turn On as a sample cutter in or about April 1996 and was discharged on August 6, 1999.
Turn On is a manufacturer of ladies' sportswear apparel with 67 multinational employees.
According to Hyppolite, she was referred to as "braceros" and a thief by employees of Turn On, particularly Willie Franqui ("Franqui") and Betty Bruin ("Betty"). The term "braceros" is alleged by Hyppolite to be a derogatory term used to describe Haitian cane cutters in the Dominican Republic. Hyppolite claims that she was frequently yelled at by Turn On employees, and physically assaulted by Franqui who threatened her by menacingly pointing his finger in her face, although in her Charge of Discrimination before the EEOC relating to the same incident she stated that Robert Regina, co-owner, ("Regina") held a meeting at which Franqui, Betty and Hyppolite was requested to respect each other.
Ms. Bruin has also been referred to as "Bruen" and the record does not establish her last name.
According to Hyppolite, she complained to her supervisor Vicky Bongo ("Bongo") and to the production manager Peter Marota ("Marota") about the statements of Franqui and Betty but no action was taken.
Matthew Kossoy ("Kossoy"), Turn On's vice president, runs the day-to-day business of the company. Supervisors, Kossoy and other partners are responsible for employee discipline, depending on the severity.
Hyppolite was the subject of four reports which were not shown to her or signed by her though the forms had a space for that purpose.
The October 23, 1998 Employee Report prepared by Marota states that Hyppolite "instigated" an altercation between a sample pattern-maker and herself and "snapped" about how pattern pieces are always missing and the pattern-maker's ability to engineer patterns. The action taken was:
Denise and Pattern-maker were both pulled aside and spoke to. The distraught pattern maker was calmed down and the issue put to rest.
Marota, at the time of the October 23 incident heard the question that Hyppolite asked the pattern-maker.
The December 19, 1998 Employee Incident Report prepared by Marota refers to an incident of a "private" conversation between Marota and a production pattern-maker concerning samples being "stolen" or "disappearing to the showroom, being taken by the owners of the company." Hyppolite heard parts of the conversation and misconstrued it, believing that the conversation concerned her. Marota clarified the conversation, filled in the portion of the conversation that Hyppolite did not hear and apologized, "even though I really did not have to."
The June 15, 1999 Employee Incident Report prepared by Marota records an incident when Hyppolite "purposely bumped into him [a pattern-maker] without any provocation." The pattern-maker was Franqui. Marota witnessed this incident and according to the report told Hyppolite "this type of behavior will not be tolerated. We are all adults let's please try and all get along."
The July 30, 1999 Employee Incident Report, prepared by Bongo, records an incident when a pattern-maker first complained to Bongo that Hyppolite had said "something" to the pattern-maker and the pattern-maker was "upset." Hyppolite also told Bongo that the pattern-maker had said something to upset her. Bongo told both to get along and if they could not, they should not speak to each other.
In the August 5, 1999 Employee Incident Report prepared by Marota, he observed Betty "storming off" and "crying." Hyppolite "went out of control," shouted uncontrollably and pointed in Betty's face. Marota, Hyppolite and Betty were brought into the office and "all sides were heard by one of the owners" (Robert Regina). They were told that "this behavior will not be tolerated" and "if this happens again further action will be taken . . . against Denise [Hyppolite] — or filling out a police report so that there was a record of this." Hyppolite went to the police that day and alleged "harassment."
According to Kossoy, Hyppolite was fired the following day, August 6. He has stated that "Marie was going around making clucking noises and telling people that they're going to die. I conferred with my partner . . . and found out this has been going on for a long time." Hyppolite kept telling Betty, "you're going to die," and "I'm going to kill you." (Kossoy transcript, p. 43, ls. 12-18). Kossoy, Marota and Regina decided to terminate Hyppolite.
Kossoy observed Hyppolite threatening Betty and Betty's emotional response. He observed that "Betty was by the pattern room and Marie was back in there, and she was, you know, telling her she was going to die, and Betty was crying and freaking out and running down the hall." (Kossoy transcript, p. 47, l. 25, p. 48, ls. 2-5). Kossoy did not consider any prior incident reports in his decision to terminate Hyppolite. After speaking with Regina and Marota in his office, "I made my decision. . . ." (Kossoy Transcript, p. 51, ls. 8-10). The decision to discharge Hyppolite resulted from his observation of the incident.
Summary Judgment is Appropriate
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(b). The party opposing summary judgment "may not rest upon mere allegations or denials," rather it must "set forth specific facts showing that there is a genuine issue for trial." Id. 56(e). To defeat a motion for summary judgment, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "[I]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).
Similarly, the non-moving party cannot defeat summary judgment by "offering purely conclusory allegations of discrimination," Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), or by offering evidence in opposition that is merely speculative. See Dister v. Continental Group, Inc., 859 F.2d 1108, 1116-17 (2d Cir. 1988). Accordingly, to defeat summary judgment, it must set forth "concrete particulars" showing that a trial is needed. R.G. Group, Inc. v. Horn Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984). Such a showing has not been made on this record.
No Showing Of Discrimination Has Been Made
The framework for analyzing summary judgment motions in employment discrimination claims is set forth by the Second Circuit in James v. New York Racking Assoc., 233 F.3d 149 (2d Cir. 2000), an age discrimination case. In James, the Court of Appeals considered the effect of Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000), on prior circuit case law, as announced in Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997) (en banc). The Court's conclusion was that Reeves was entirely consistent with Fisher, and left prior circuit law unchanged, since "both opinions essentially stand for the same propositions." James, 233 F.3d at 156.
Under the analysis applied in Fisher and reaffirmed in James, the question is whether the plaintiff has established the "minimal" prima facie case defined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973):
This requires no evidence of discrimination. It is satisfied by a showing of "membership in a protected class, qualification for the position, an adverse employment action," and preference for a person not of the protected class.
James, 233 F.3d at 153-54. Meeting this test "creates a presumption that the employer unlawfully discriminated." Fisher, 114 F.3d at 1335. This presumption "places the burden of production on the employer to proffer a nondiscriminatory reason for its action." Id. at 154. If the employer fails to present such a reason, plaintiff prevails.
"On the other hand, once the employer articulates a nondiscriminatory reason for its actions, Fisher, 114 F.3d at 1336, the presumption completely `drops out of the picture.' St. Mary's [Honor Ctr. v. Hicks], 509 U.S. [502,] 510-11 (1993)]." Id. At that point, "the employer will be entitled to summary judgment . . . unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." Id. Evidence casting doubt on the employer's proffered justification "may — or may not — be sufficient" to provide this support. Fisher, 114 F.3d at 1333. Thus, when the employer has proffered an explanation and the plaintiff has attempted to refute it, the court's responsibility is to "examin[e] the entire record to determine whether the plaintiff could satisfy his `ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.'" Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (citing Reeves, 120 S.Ct. at 2106).
Here, Hyppolite claims she was discharged because of her Haitian national origin, on her allegation that employees referred to her as "braceros," that she complained about the use of the term, and that two employees continued to use the term. Turn On has submitted a nondiscriminatory reason for her discharge, her disruptive and hostile conduct, as well as her inability to get along with her co-workers.
To maintain a hostile work environment claim, Hyppolite must establish "(1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of [her] work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 436 (2d Cir. 1999) (quotation and citation omitted).
In Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993), the Supreme Court set forth a non-exclusive list of factors that a court should consider to determine whether a workplace is permeated with discrimination so severe or pervasive as to support a Title VII claim. These factors include (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether the conduct was physically threatening or humiliating, or a "mere offensive utterance"; (4) whether the conduct unreasonably interfered with plaintiff's work; and (5) what psychological harm, if any, resulted. Richardson, 180 F.3d at 437 (citing Harris at 23, 114 S.Ct. 367) (other citation omitted). In determining whether a particular workplace is sufficiently hostile to permit an actionable claim, the Court must consider the evidence "cumulatively" to assess the "totality of circumstances" adequately. See Richardson, 180 F.3d at 437.
The statements of employees were offensive utterances not related to Hyppolite's nationality but to her status. There is no claim of retaliation. Hyppolite has not established that Turn On "tolerated or condoned the situation" or "that the employer knew or should have known of the alleged conduct and failed to take prompt remedial." Davis v. Monsanto Chem. Co., 858 F.2d 345, 349 (6th Cir. 1989).
Courts may hold an employer liable for co-workers' harassment "if its response manifests indifference in light of the facts the employer knew or should have known." See Blankenship v. Parke Care Ctrs., 123 F.3d 868, 873 (6th Cir. 1997), cert. denied, 522 U.S. 1110 (1998).
The Employee Incident Reports of October 23, 1998, December 1999, August 5, 1999, and July 30, 1999, all indicate remedial action was taken and Hyppolite concedes that Marota told Betty not to call her "thief," and that Marota spoke with Franqui about his harassing Hyppolite. Hyppolite states she complained to Marota about being called "thief" and "braceros" by Betty, and Marota advised Betty to "stop" (Plaintiff's Rule 56.1 Statement, ¶ 19), that Marota spoke to Franqui (Plaintiff's Rule 56.1 Statement, ¶ 20), at a meeting with Regina, Willie, Betty and Hyppolite, and Regina advised all employees to "get along with each other." Turn On did take remedial action. Hyppolite has not established "that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (citation and internal quotation omitted).
In Harris, supra, two of the factors relevant in determining whether a given workplace is permeated with discrimination, so "severe or pervasive" as to support a Title VII claim, id. at 23, were whether the conduct unreasonably interfered with plaintiff's work and what psychological harm, if any, resulted. Id. at 23; Quinn v. Green Tree Credit Corp., 159 F.3d 759, 767-68 (2d Cir. 1998).
No evidence has been submitted regarding interference with Hyppolite's work, nor any admissible evidence of psychological harm. Turn On has demonstrated a non-discriminatory reason for its decision, Hyppolite's disruptive conduct. No evidence has been submitted permitting a conclusion that the employer's reason is untrue. See Aka v. Washington Hospital Center, 156 F.3d at 1291-92; see also Fisher v. Vassar College, 156 F.3d at 1338.
Conclusion
The motion for summary judgment to dismiss the action is granted without costs and with prejudice. Submit judgment on notice.
It is so ordered.