Opinion
21-cv-5918 (JGLC) (JW)
02-16-2024
JUSTIN FRANCO, Plaintiff, v. AMERICAN AIRLINES, INC., Defendant.
Honorable Jessica G. L. Clarke, United States District Judge
REPORT & RECOMMENDATION
JENNIFER E. WILLIS, UNITED STATES MAGISTRATE JUDGE
Before this Court is Defendant American Airlines, Inc.'s (“Defendant” or “American Airlines”) motion for summary judgment. Dkt. No. 77. Plaintiff commenced this action alleging employment discrimination on the basis of race and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”), the New York State Human Rights Law, N.Y. Executive Law §§ 290, et seq. (“NYSHRL”), and the New York City Human Rights Law, N.Y.C. Administrative Code §§ 8-101, et seq. (“NYCHRL”), including claims of hostile work environment and retaliation. Dkt. No. 12 (“Complaint” or “Compl.”). Plaintiff also claims retaliation in violation of the Family and Medical Leave Act (“FMLA”). Id. ¶ 1. This Court notes that Plaintiff is not currently represented by counsel (in other words, Plaintiff is proceeding pro se).
For the reasons stated below, this Court recommends that the motion for summary judgment be GRANTED.
BACKGROUND
Procedural History
On April 18, 2023, Defendant filed the instant motion for summary judgment, Dkt. No. 77 (the “Motion”), along with a memorandum of law in support of the motion, Dkt. No. 78 (“Memo”), a Local Rule 56.1 Statement, Dkt. No. 79 (“Def. SMF”), a supporting declaration of Marianne Coplin, Dkt. No. 80 (“Coplin Decl.”), a supporting declaration of Michelle Mohr, Dkt. No. 81 (“Mohr Decl.”), and a supporting declaration of counsel Michael F. Fleming. Dkt. No. 82 (“Fleming Decl.”).
On August 22, 2023, Plaintiff filed a memorandum of law in opposition to Defendant's Motion, Dkt. No. 97 (“Opp.”), along with a letter challenging the admissibility of the testimony of Michelle Mohr citing Federal Rule of Evidence 602, Dkt. No. 95 (“FRE 602 Letter”), and a letter notifying the Court of Plaintiff's personal struggles. Dkt. No. 96. On September 8, 2023, Defendant filed a reply memorandum of law in further support of the Motion. Dkt. No. 103 (“Reply”).
On October 18, 2023, Plaintiff requested an adjournment of a scheduled oral argument on the Motion and asked to modify his opposition to include a Rule 56.1 Statement, a revised memorandum of law, and three additional affidavits. Dkt. No. 105. The same day, this Court granted Plaintiff's request for a sur-reply and noted it would accept the additional materials. Dkt. No. 104. On October 19, 2023, Defendant wrote to request leave to file a sur-reply to respond to additional arguments raised by Plaintiff. Dkt. No. 106.
On October 27, 2023, Plaintiff submitted his subsequent memorandum of law in opposition to Defendant's Motion, Dkt. No. 108 (“Pl. Sur-reply”), along with a declaration from Plaintiff including a response to Def. SMF. Dkt. No. 109 (“Pl. SMF”).
On November 1, 2023, Defendant wrote to request that this Court seal certain documents identified as Exhibits A and E that Plaintiff intended to file with his opposition papers. Dkt. No. 110. Defendant also asked to strike Exhibits A and C-J as they argued Plaintiff was not granted leave to submit additional documentary evidence. Id. Plaintiff opposed Defendant's request to strike and seal. Dkt. No. 111. This Court ordered an in camera review of the exhibits at issue and directed the Parties to produce the documents by November 3, 2023. Dkt. No. 112. On November 3, 2023, this Court noted that it had received exhibits from Defendant and ex parte emails from Plaintiff. Dkt. No. 113. This Court forwarded the ex parte emails to Defendant's counsel, noted for Plaintiff that all future communications should include Defendant's counsel, and directed the Parties not to file further documents until such time as this Court issued a ruling on the disputed exhibits. Dkt. No. 113. On February 16, 2024, this Court denied Defendant's request for a sur-reply and directed Plaintiff to file Exhibits B-J on the public docket as ordered. Dkt. No. 114. Exhibit A was precluded as a discovery sanction for Plaintiff's failure to disclose the identity of the witness affiant during discovery. Id.
The facts set forth in this Report and Recommendation are drawn from the Complaint and the Parties' submissions in connection with Defendant's motions for summary judgment, including Def. SMF, Pl. SMF, and the Fleming Decl. While Pl. SMF purports to “dispute” portions of Def. SMF, this Court notes that on many occasions Plaintiff acknowledges the truth of the assertions in Def. SMF and simply provides additional context. See, e.g., Pl. SMF ¶¶ 49, 53-55, 59, 65. To the extent Pl. SMF disputes any facts used in this Report and Recommendation drawn from Def. SMF or adds additional context, this Court has considered both submissions and noted any disputes where relevant and material.
Plaintiff Justin Franco was born in New Brunswick, New Jersey and identifies as “American.” Def. SMF ¶ 13. Plaintiff also identifies as a “Latino man of Guatemalan descent.” Compl. ¶ 2. Plaintiff was employed by Defendant as a senior corporate communications specialist based in New York from January 1, 2018 to May 13, 2020. Compl. ¶¶ 24, 243. Plaintiff served as President of Defendant's PRIDE employee business resource group (“EBRG”). Pl. SMF at 80. Plaintiff alleges he was discriminated against by his supervisors while working for Defendant, including Michelle Mohr, former Managing Director of Global Communications (“Manager Mohr”); Leslie Scott, former Senior Manager of Global Communication (“Manager Scott”); and Martha Thomas, former Senior Manager of Global Communications (“Manager Thomas”). Compl. ¶¶ 21, 77-79.
Specifically, Plaintiff alleges that beginning in 2019 after the hire of Andrew Trull (“Trull”), a colleague who Plaintiff identifies as Caucasian, Plaintiff's assignments were transferred, and Plaintiff was treated less well by his supervisors. Compl. ¶¶ 34-52. Plaintiff states that he reported his unfair treatment to Vice President, Hub Operations Jim Moses (“VP Moses”) on April 6, 2020. Compl. ¶ 66. Plaintiff also contacted Senior Vice President of Global Communications, Ron Defeo (“SVP Defeo”) for assistance. Compl ¶ 99. On May 13, 2020, Manager Mohr terminated Plaintiff's employment. Compl. ¶ 128. Defendants cite performance issues as the cause of Plaintiff's termination. See Memo.
A. Early Employment History
On or about December 8, 2008, Plaintiff was hired by U.S. Airways as a customer service agent. Def. SMF ¶ 14. Around December 2013, Defendant American Airlines merged with U.S. Airways and Plaintiff became an employee of American Airlines. Id. ¶ 15. In 2015, Manager Mohr approved Plaintiff's hire for a communication specialist position in Philadelphia International Airport (“PHL”). Id. ¶ 18-20, 22.
From August 2017 to November 2019, Manager Scott was responsible for evaluating Plaintiff's performance and Manager Scott reported to Manager Mohr (Plaintiff's second-level supervisor). Def. SMF ¶¶ 21, 23, 51-52. In 2017, Plaintiff transferred from PHL to the New York area airports, e.g., JFK International Airport (“JFK”), LaGuardia International Airport (“LGA”), and Newark International Airport (“EWR”). Id. ¶ 22.
Plaintiff's 2017 Performance Evaluation by Manager Scott included favorable comments about Plaintiff's performance and noted: “Don't get too emotional (especially in NY where the politics seem to run rampant). Stay cool. If an idea you throw out there gets rejected for whatever reason just move onto your next great idea. Don't take things personally.” Def. SMF ¶ 25; Fleming Decl. Ex. K. At his deposition, Plaintiff testified that he did not recall disagreeing with anything Manager Scott wrote about him in her performance evaluations. Pl. SMF ¶ 24. Plaintiff readily acknowledges the favorable comments about his performance in 2017, but states that the criticism he received was “vague and abstract.” Pl. SMF ¶ 25.
Around January 1, 2018, Plaintiff was promoted to the role of Senior Specialist, Field Communications by Manager Mohr. Def. SMF ¶¶ 26-27. In his role Plaintiff was responsible for, inter alia, “[c]reating internal communications materials and support[ing] corporate communications initiatives”; “[d]eveloping and execut[ing] communications strategies around highly volatile and fast-moving issues with tight deadlines”; and “[a]ssisting with rapid response communications (i.e. issues resolution) throughout the airline, including creating and developing internal and external communication plans.” Id. ¶ 30; Fleming Decl. Ex. M.
In April 2018, Manager Scott gave Plaintiff the following performance feedback, “[d]on't get too emotional and do not lose your temper. You cannot shake that reputation once you get it. I understand how frustrating it is. Call me and vent. Don't do it in front of others.” Id. ¶ 31. In October 2018, Manager Scott gave Plaintiff job-related feedback including:
“Remember that you are always on the record w/ a reporter unless you specifically agree to go off the record. There are things we should never be quoted as saying like the word ‘flame-out.' Let's think about ways you can feel more prepared going into those conversations.”Id. ¶ 33. Plaintiff states that he also received positive feedback in 2018 and the critical feedback included no specific examples of urgent issues requiring attention. Pl. SMF ¶ 33.
Around January 2019, American Airlines hired Trull as Senior Specialist assigned to PHL. Compl. ¶¶ 34-35. Plaintiff alleges Trull is Caucasian and after Trull joined American Airlines, Plaintiff was treated differently by his supervisors including Manager Mohr. Compl. ¶¶ 26, 29-40. As an example, while Trull was able to use the title “Spokesperson” in his public and professional profiles, Pl. Ex. G., Manager Mohr told Plaintiff to remove the title from his public profiles. Compl. ¶¶ 41-43.
B. 737 Interview Incident under the supervision of Manager Scott
On March 10, 2019, Ethiopian Airlines Flight 302, a Boeing 737 MAX aircraft, crashed six minutes after takeoff. Def. SMF ¶ 36. The next day on March 11, 2019, at 10:21am, Manager Scott sent an email to Plaintiff and the communications team with the subject line “URGENT: Hold on internal and external comms pls [sic,]” which stated “please hold on any broad internal comms (newsletters) and any external pitches regardless of topic for at least [March 11-12, 2019.]” Id. ¶ 37; Fleming Decl. Ex. O. On May 13, 2019, the United States Federal Aviation Administration grounded all 737 MAX aircrafts. Def. SMF ¶ 38. On May 13, 2019 at 11:20am, Manager Scott again emailed the communications team and Plaintiff telling the team to “continue holding” and “lay low[.]” Id. ¶ 39; Fleming Decl. Ex. O. Later that day, Plaintiff appeared on camera for an interview with NY1 news and discussed the grounding of the 737 MAX fleet without approval (the “737 Interview”). Def. SMF ¶ 42. Plaintiff alleges that he saw Manager Scott's email after the interview. Pl. SMF ¶¶ 42-43. Plaintiff sent an email to Manager Scott on March 14, 2019, which stated in part, “[s]orry about yesterday . . . I fully understand why it wasn't the best call. I do believe I was serving our airline to the best of my ability . . . I've learned my lesson.” Def. SMF ¶ 43.
C. Film Shoot Incident under the supervision of Managers Scott and Mohr
On October 31, 2019 at 9:46am, Plaintiff emailed Manager Mohr about a one-day film shoot (the “Film Shoot”) at Defendant's Terminal 8 location at JFK for an HBO series called “The Flight Attendant.” Def. SMF ¶ 44; Fleming Decl. Ex. R. Prior to October 31, 2019, Manager Mohr and Manager Scott were unaware of the Film Shoot. Pl. SMF ¶ 45. Plaintiff alleges that the filming was set up as a “zero impact shoot,” which he expected would not interfere with airport operations and would be “devoid of any American Airlines branding[.]” Pl. SMF ¶ 46-47. Manager Mohr had concerns about the subject matter of the Film Shoot and the possible effects on the Defendant's brand. Def. SMF ¶ 47. Later on October 31, 2019 at 2:03pm, Plaintiff emailed Manager Mohr and Manager Scott, “[t]his is awkward, but I need to apologize. . . I don't want to undermine anyone's authority here. . . Please let me know how to proceed as I don't want to add to an already tricky situation.” Def. SMF ¶ 46. Manager Scott and Plaintiff had the following message exchange regarding the shoot:
Manager Scott : “[A] flight attendant wakes up with a hangover and a dead person in her bed? In the current age we are in with the union, that is not the right position to put us in. I hope you can understand that.”
Plaintiff : “Clearly I didn't understand that. What was explained to me waas [sic] the scene not the entire show”
Manager Scott : “[I]s there a signed contract or location agreement?”
Plaintiff : “I don't know that for sure. But I do know it was drafted.”
Manager Scott : “[C]an you please find out?”
Plaintiff : “[I]t then goes to Kimberly warren in legal[,] if I understand]”
Manager Scott : “[D]o you need me to ask her?”
Plaintiff : “Michell is going to talk to Mike. I don't know what else to say or do. I've done enough here[.]”Def. SMF ¶ 48. The Film Shoot was ultimately cancelled by Manager Mohr. Def. SMF ¶ 50. Plaintiff states that the extent to which Managers Mohr and Scott scrutinized the Film Shoot made Plaintiff feel “increasingly harassed and intimidated by his management.” Pl. SMF ¶ 46.Plaintiff was asked during his deposition whether in the discussions about the Film Shoot there was any mention of Plaintiff or anyone “being Hispanic or having Guatemalan descent” to which Plaintiff responded, “No.” Fleming Decl. Ex. A at 29-30.
Plaintiff disputes the relevance of the fact that the shoot was canceled by Manager Mohr and argues that per the Federal Rules of Evidence 402, Mohr Decl. is inadmissible. This Court will address this argument infra, Discussion Section Part A(iv).
Around November 2019, Manager Scott began a maternity leave and did not return so Manager Mohr became Plaintiff's direct supervisor. Def. SMF ¶¶ 51-52. Plaintiff alleges that beginning in November 2019, Manager Mohr instituted a new reporting structure that subordinated Plaintiff to Trull even though Plaintiff alleges he had the same job title and more seniority than Trull. Compl. ¶¶ 49-50. During Plaintiff's deposition he was asked, “[a]t no point did [Manager Mohr] say you report to [Trull]; correct?” and Plaintiff responded, “I don't remember her saying that.”
Fleming Decl. Ex. A at 47. Plaintiff was also asked, “[Trull] was never your manager, was he?” to which Plaintiff responded “No.” Id.
D. RAI Interview Incident under the supervision of Manager Mohr
On or around November 18, 2019, Manager Mohr learned that Plaintiff was scheduled to be interviewed the following day by the Italian news network RAI (the “RAI Interview”). Def. SMF ¶ 54. Plaintiff alleges that this was a request from the London team based on his position as PRIDE EBRG President and not an “act of poor judgment.” Pl. SMF ¶ 54. Manager Mohr shared concerns with Plaintiff about the RAI interview and emailed him: “RAI is like the BBC. Big and National. These opportunities have to come all the way up for discussion. We are going to move forward as planned right now, but am sharing my concerns with you and also my expectations for the discussion[.]” Def. SMF ¶ 55. Plaintiff states that the “strongly worded emails” from Manager Mohr regarding the RAI Interview were intimidating. Pl. SMF ¶ 55.
E. Press Release Typo under the supervision of Manager Mohr
On January 6, 2020, Plaintiff sent a draft of a press release about the groundbreaking at Terminal 8 at JFK to Manager Mohr. Def. SMF ¶ 58. Manager Mohr noted a typo in the press release and reached out to the editorial team to avoid what she described as an “embarrassing error.” Def. SMF ¶ 58; Fleming Decl. Ex. Y. Plaintiff notes that the version was a draft that was not final or approved and it was standard procedure to review and proofread drafts internally to avoid errors. Pl. SMF ¶ 58.
F. COVID-19 Communications under the supervision of Manager Mohr
In February 2020, Manager Mohr asked Plaintiff to work closely together with Trull, Plaintiff's counterpart at PHL, to “ensure that the [c]ommunications teams for the Northeast hub airports . . . were aligned on messaging.” Def. SMF ¶ 60. Plaintiff states that the nature of the working relationship was such that Plaintiff had to share drafts for Trull to review (despite their comparable job titles), but Trull never reciprocated. Pl. SMF ¶ 60.
On March 9, 2020, Curtis Blessing, Manager, Field Communications (“Manager Blessing”) sent an email to Plaintiff and the communications team regarding the COVID-19 pandemic noting: “[t]his is a sensitive issue and there are numerous workgroups meeting at high-levels to make decisions about our response. We should not be acting independently at the local level to provide information that has not already been published.” Def. SMF ¶ 63; Fleming Decl. Ex. BB. Plaintiff states there was contradictory messaging from Manager Mohr and Manager Blessing regarding COVID-19 communications because Manager Mohr instructed Plaintiff to collaborate with Trull “necessitating a level of autonomous function and potentially localized messaging,” while Manager Blessing said they should not be acting independently at the local level. Pl. SMF ¶ 63.
On March 21, 2020, Manager Mohr emailed Plaintiff: “[t]here are a couple of things I don't think we should be sharing . . . We [] shouldn't be sharing internal media statements. Those are just for our [communication teams'] use.” Def. SMF ¶ 65. On March 23, 2020, Plaintiff used an American Airlines email address (CorpCommNYC@aa.com) to distribute an email (“Email 1”) regarding the New York Governor's order that non-essential workers should work from home. Def. SMF ¶ 66. Email 1 was seen by higher-level officials at American Airlines including the Senior Vice President of Global Engagement and the Director of Operations Communications. Def. SMF¶ 68. SVP Defeo (Manager Mohr's boss) and other colleagues expressed concern to Manager Mohr about Email 1. Def. SMF ¶ 68. Manager Mohr asked Plaintiff about Email 1, and he responded “I made the call . . . My error here was sending [Email 1] to an additional distribution list which was not intended. For that I apologize.” Def. SMF ¶ 69. Manager Mohr responded that, “[a]nything we share needs to be curated and crafted through the company lens.” Def. SMF ¶ 70. The same day, Manager Mohr asked Plaintiff again to coordinate with Trull on a “Northeast Region hub” response. Def. SMF ¶ 71. Plaintiff felt the directive on regional response was in tension with her other directive to focus on the company lens. Pl. SMF ¶ 71.
On March 25, 2020, Manager Mohr sent an email to the communications team, including Plaintiff, that “[w]e cannot be creating our own documents and processes that are independent of the established chain of command and process and that are not properly vetted.” Def. SMF ¶ 72. The same day, Plaintiff used his American Airlines email (Justin.Franco@aa.com) and shared several documents he created himself via email with other employees at American Airlines (“Email 2”), including a template for tracking COVID-19 cases at the airport. Def. SMF ¶ 73; Fleming Decl. Ex. KK. Manager Mohr responded to Plaintiff, “I need you to pull this back immediately . . . We cannot be running rogue and the notification needs to be worked through [the COVID team] who are leading the efforts.” Def. SMF ¶ 74. Plaintiff states that Manager Mohr told him a few days prior to Email 2 that his templates were “very helpful.” Pl. SMF ¶ 74. In response to Email 2, Manager Blessing emailed Manager Mohr “I'm really not sure how you could have made it more clear.” Def. SMF ¶ 76. The same day, Manager Mohr contacted the People Business Partner team (“HR”) voicing concerns about Plaintiff. Def. SMF ¶ 77. Plaintiff alleges that around the same time he was receiving positive performance discussions and no constructive feedback. Pl. SMF ¶ 77.
On March 26, 2020, Manager Blessing sent an email to Manager Mohr about Plaintiff which stated, “I just hopped on the phone with [Plaintiff] to talk this through . . . Many concerns . . . Leader to leader, it felt like I was explaining media relations 101 to him and that is of some concern.” Fleming Decl. Ex. OO. Manager Mohr responded to Manager Blessing that Plaintiff's conduct was “deeply concerning” and Plaintiff was supposed to be “working process through [Trull].” Id. Plaintiff states that he received the directive to coordinate with Trull “a mere day before the email conversation between [Manager] Mohr and [Manager] Blessing.” Pl. SMF ¶ 79. Plaintiff does concede that Manager Mohr told Plaintiff to coordinate and work closely with Trull as early as February 2020. Pl. SMF ¶ 60. Plaintiff also asserts that he was given conflicting instructions regarding coordinating with Trull and coordinating with the American Airline's COVID team. Id. ¶ 79.
On April 6, 2020, Plaintiff had an email exchange with Trull and VP Moses was copied on the communications. Fleming Decl. Ex. VV. Trull asked Plaintiff about New York operational changes related to the COVID-19 pandemic and stated, “[w]ant to make sure we're being proactive where possible to control the message, and (selfishly) want to make sure we're building a playbook should we need to implement similar measures in other hotspot cities.” Id. Plaintiff responded to Trull's email, “I know you're excited, but it hasn't even been 24-hours yet my friend . . . PS Don't use ‘control messaging' that's ridiculous to the point of being offensive.” Fleming Decl. Ex. VV. Plaintiff states this line of communication shows that Manager Mohr was overlooking his successful efforts and “clearly indicates the biased treatment [that he] received[.]” Pl. SMF ¶¶ 90-91. Plaintiff further states that categorizing the messages as a “professional misstep” on his part “emphasizes the unfair scrutiny and judgment [his] actions and communications were subjected to.” Id. ¶ 91. At Plaintiff's deposition, he agreed that his response to Trull may have been inappropriate considering that VP Moses was included on the communications. Id. ¶¶ 91-92.
Later that night, Plaintiff sent text messages to VP Moses to raise concerns with the reporting structure between Plaintiff and Trull. Compl. ¶¶ 66-67 (the “VP Moses Report”). Plaintiff's messages state “this whole structure makes it seem like I report to [Trull]. I don't. I'm responsible for my markets and agreed to this structure with an understanding of shared information. . . Since this whole thing started its me sending stuff to him. I've never seen anything to me in sharing.” Fleming Decl. Ex. WW. During his deposition, Plaintiff was asked whether he mentioned in the VP Moses Report that being Hispanic or having Guatemalan descent was a reason for the change in reporting structure, to which Plaintiff responded, “I did not.” Fleming Decl. Ex. A at 50.
G. Social Media Post under the supervision of Manager Mohr
On April 5, 2020, Plaintiff used a social media account disclosing his affiliation with Defendant (the “Social Media Post”) to communicate with Jamie Larounis, the author of a travel blog called “The Forward Cabin”. Def. SMF ¶ 87.
The communication is excerpted below:
(Image Omitted)
Following the Social Media Post, on April 6, 2020, Manager Mohr emailed Plaintiff, including:
“The exchange is generating chatter amongst our team. Not in a positive way . . . Your response to Jamie is bizarre and unprofessional. Were it on a private level, that may have been OK, but you identify as a [spokesperson] in your profile and any comment is therefore on behalf of the company. . . I will schedule time to follow up in a call but I need you to stop the exchanges now and run all communications work for your area up through [Trull] and the team based [out] of PHL and include me on those exchanges.”Fleming Decl. Ex. TT.
H. Final Warning Letter under the supervision of Manager Mohr and Manager Thomas
American Airline's Performance Counseling Guidelines for Management and Support Staff provide that “[managers] may issue a final warning letter to offer [a] team member one last opportunity to correct performance.” Fleming Decl. Ex. H at 8. The guidelines further state that a final warning letter may be warranted “when a team member is struggling in performing the basics of the job... doesn't clearly understand the expectations of the role or there are performance issues[.]” Id.
On March 30, 2020, Manager Mohr met with a member of HR and determined that a final warning letter would be issued to Plaintiff. Def. SMF ¶ 84. Plaintiff states that the process lacked transparency, so it provides further evidence of his claims for retaliation and discriminatory treatment. Pl. SMF ¶ 84.
On April 15, 2020, Plaintiff had a performance review with Manager Mohr and Manager Thomas where Plaintiff was issued a final warning letter (the “Final Warning Letter”). Compl. ¶¶ 77, 83. The Final Warning Letter included examples of Plaintiff's past behavior including the COVID-19 emails, the Film Shoot, and Plaintiff's VP Moses Report. Fleming Decl. Ex. BBB. After receiving the Final Warning Letter, Plaintiff abruptly left a meeting with Manager Mohr and Manager Thomas, and reported that he experienced a panic attack. Pl. SMF ¶ 103.
I. Plaintiff's Workplace Complaints under the supervision of Manager Mohr and Manager Thomas
Plaintiff states that after April 10, 2020, on at least three occasions, Manager Mohr credited other colleagues, whom Plaintiff identifies as “white females”, for work that Plaintiff had done. Pl. Sur-reply at 12. Conversely, Plaintiff's Complaint states that “on at least three occasions beginning in April of 2020, Manager Mohr gave credit for [Plaintiff's] work to other Caucasian [s]enior [s]pecialists, such as Derek Walls.” Compl. ¶ 63. Plaintiff's papers do not provide factual background for these allegations. See generally Opp.; Pl. Sur-reply.
On April 17, 2020, Plaintiff spoke to HR and stated he believed the Final Warning Letter was retaliation for the VP Moses Report where Plaintiff stated that he didn't feel that reporting to Trull made sense. Pl. SMF ¶ 107. On April 29, 2020, Plaintiff submitted a written statement dated April 27, 2020 to HR regarding the alleged hostile work environment. Fleming Decl. Ex. III (“Plaintiff Statement 1”). Notably, Plaintiff's Statement 1 does not mention Plaintiff being Hispanic or of Guatemalan descent. Id. Plaintiff Statement 1 instead focuses on positive feedback Plaintiff received during his time on the communications team and noted that Plaintiff felt he followed procedure with respect to the Film Shoot, the RAI Interview, and the VP Moses Report. Id.
On April 30, 2020, Plaintiff emailed Manager Mohr and Manager Thomas to ask why a story that he pitched was denied. Def. SMF ¶ 111. Manager Thomas and Plaintiff had a call (the “April 30 Call”). Id. ¶ 113. Defendant states that during the April 30 Call Plaintiff was “defensive, angry[,] and confrontational[.]” Id. Plaintiff states that on the call, Manager Thomas said, “Things are going to get tough for you; things are going to get very tough[,] and I am not going to enjoy helping you.” Pl. SMF at 80. Plaintiff recorded the conversation (without Manager Thomas's knowledge) and states that Stefan Soogrim (“Soogrim”) witnessed the call. Pl. SMF ¶ 114. Plaintiff asks the Court to consider a declaration from Stefan Soogrim (“Soogrim Decl.”) attesting that he heard Plaintiff begging for help on the call with Manager Thomas, and Manager Thomas yelled at Plaintiff to “stop complaining.” Soogrim Decl. Notably, the Soogrim Decl. includes no reference to Plaintiff's identity as Hispanic or of Guatemalan descent. Id.
The same day Manager Mohr and Manager Thomas had a conversation about terminating Plaintiff's employment. Def. SMF ¶ 116. Plaintiff contacted SVP Defeo regarding the April 30 Call and was referred to HR. Pl. SMF at 80. Plaintiff submitted a second statement to HR via email. Fleming Decl. Ex. MMM (“Plaintiff Statement 2”).
On May 5, 2020, HR notified Plaintiff that they concluded the review of Plaintiff's Statement 1 and did not find evidence to substantiate his allegations. Pl. SMF ¶ 120. On May 6-7, 2020, Plaintiff and Soogrim were interviewed in connection with Plaintiff's Statement 2. Pl. SMF ¶¶ 122-123. On May 8, 2020, HR contacted Plaintiff to notify him that they concluded investigation of Plaintiff's Statement 2 and could not corroborate his claims. Pl. SMF ¶ 139.
On May 7, 2020, Plaintiff emailed Manager Mohr to ask why he was removed from the position of “duty person” less than 24 hours before he was scheduled to begin. Fleming Decl. Ex. RRR at 4. Plaintiff also emailed the entire media relations listserv at mediarelations@aa.com to inquire about the change in the duty officer assignment. Fleming Decl. Ex. SSS. Manager Mohr responded that due to the COVID-19 pandemic, a colleague had been covering the position of duty person since March 2020. Fleming Decl. Ex. RRR at 3.
On May 8, 2020, Plaintiff emailed a member of the communications team about a project with Hyatt (the “Hyatt Project”). His college responded, “I won't bore you with the volume of stop-start on this one . . . Will copy you on a note shortly to the team. [Ross Feinstein, Director of Operations Communications (“Feinstein”)] is going to handle a few NY media . . . you're more than welcome to share the materials . . . with whomever you'd like.” Fleming Decl. Ex. UUU. Plaintiff emailed Feinstein, “I didn't know you were going to handle some NY media on this one. Please advise who you are reaching out to.” Id. Feinstein responded that he was going to handle CNN, NY Daily News, and NY Post, but Plaintiff could handle NY Daily News and NY Post if he wanted. Id. In response to the emails about the Hyatt Project to Feinstein, Manager Thomas emailed Plaintiff,
“You must send all inquiries such as this to me. Please do not send [sic] continue to send them to your colleagues as you are disrupting their work and their day. This Hyatt [P]roject has been discussed multiple times on calls throughout the week. There was a long discussion about it on yesterday's
afternoon COVID update call. It is also being handled no differently than many announcements before it. . . You must work on your tone immediately.”Fleming Decl. Ex. VVV.
In the afternoon of May 8, 2020, members of the HR team communicated about a plan to terminate Plaintiff on Monday May 11, 2020. Fleming Decl. Ex. WWW. Later in the evening of May 8, 2020, Plaintiff submitted a formal request for a leave of absence pursuant to the FMLA. Compl. ¶ 120. Due to the timing of the submission, the leave request was not reviewed by the Absence and Return Center until May 11, 2020. Pl. SMF ¶ 141. On May 11, 2020, Plaintiff was notified that he would be meeting with Manager Mohr in person at LGA on May 13, 2020. Id. ¶ 143. On May 13, 2020, Manager Mohr met with Plaintiff and terminated his employment. Compl. ¶ 128. Plaintiff alleges that he was not offered a severance package and the option to resign voluntarily. Pl. SMF at 81.
Plaintiff submitted a charge with the Equal Employment Opportunity Commission (“EEOC”) on May 28, 2020. Pl. Ex. H (“EEOC Complaint”). In Plaintiff's EEOC Complaint, he alleges that a female colleague in Miami was approved for a media pitch that Plaintiff was denied in New York. Id. He further states that Manager Mohr “steadily transferred [Plaintiff's] role and responsibilities to [Trull in PHL.]” Id. Plaintiff received a Notice of Right to Sue from the EEOC dated February 4, 2021. Pl. Ex. I.
LEGAL STANDARD
As a general matter, “[i]t is well established that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quotations omitted).
To prevail on a motion for summary judgment, the movant must “show [ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the burden of demonstrating the absence of a question of material fact. In making this determination, the Court must view all facts “in the light most favorable” to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007); see also 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); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment,” because “conclusory allegations or denials . . . cannot by themselves create a genuine issue of material fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted). “If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it.” Fed.R.Civ.P. 56(e).
Only disputes over “facts that might affect the outcome of the suit under the governing law” will preclude a grant of summary judgment. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). In determining whether there are genuine issues of material fact, the Court is “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (citing Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)).
DISCUSSION
Defendant American Airlines argues that it is entitled to summary judgment on Plaintiff's discrimination, retaliation, and hostile work environment claims because Plaintiff has not established a prima facie case for discrimination under any applicable standard. See Memo. Plaintiff counters that genuine issues of material fact preclude summary judgment and challenges the admissibility of Manager Mohr's testimony. See Opp.; FRE 602 Letter.
Under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), claims of employment discrimination are analyzed under a burden-shifting framework. To establish a prima facie case of discrimination under Title VII, NYSHRL, or NYCHRL, a plaintiff must show (1) the plaintiff is a member of a protected class, (2) the plaintiff was qualified for the position they held, (3) the plaintiff was subject to an adverse employment action, and (4) the adverse action took place under circumstances giving rise to an inference of discrimination. See Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012) (standard for Title VII); Melman v. Montefiore Med. Ctr., 946 N.Y.S.2d 27, 30-31 (2012) (standard for NYCHRL); Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (standard for NYSHRL). If a plaintiff can establish a prima facie case, the burden shifts to the defendant to articulate “some legitimate, non-discriminatory” reason for the disparate treatment. Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 83 (2d Cir. 2015) (quoting McDonnell Douglas, 411 U.S. at 802). Finally, if the employer articulates a nondiscriminatory reason, the burden shifts back to plaintiff to prove that the defendant employer's proffered reason was in fact a “pretext” for discrimination. Id. (citing McDonnell Douglas, 411 U.S. at 804).
American Airlines argues that they are entitled to summary judgment on Plaintiff's discrimination claims because (i) Plaintiff has abandoned his claim of national origin discrimination and Plaintiff did not plead a claim for discrimination on the basis of his sexual orientation, (ii) many of the employment actions Plaintiff complains of were not materially adverse, (iii) there is no evidence that gives rise to an inference of discrimination in connection with Plaintiff's termination, (iv) American Airlines had legitimate non-discriminatory reasons for terminating Plaintiff's employment, and (v) Plaintiff has no evidence to rebut American Airline's legitimate reasons for termination. Memo at 17; Reply at 6. Plaintiff disagrees and argues genuine issues of fact preclude summary judgment. See Opp.; Pl. Sur-reply.
This Court agrees that Defendant is entitled to summary judgment on Plaintiff's discrimination claims because there is no evidence that Plaintiff's termination was motivated by an inference of discrimination. Further, Defendant offers legitimate reasons for Plaintiff's termination, and Plaintiff offers no evidence that Defendant's reasons were pretextual. Therefore, this Court recommends that Defendant's Motion for Summary Judgment be GRANTED.
A. Plaintiff fails to establish a prima facie case of discrimination.
i. Discrimination Claims on the basis of Plaintiff's National Origin and Sexual Orientation
Plaintiff's Complaint claims discrimination based on his identity as a “Latino man of Guatemalan descent.” Compl. ¶¶ 2, 166-198. In his opposition papers, Plaintiff asserts that he satisfies the first element of a prima facie case of discrimination because he is “of Latino Hispanic descent, Gay individual of the LGBTQ+.” Opp. at 3. Defendant alleges that Plaintiff abandoned his claim because during his deposition he testified that he identifies as American, and when asked if he was being discriminated against based on his Guatemalan descent, Plaintiff responded, “No.” Memo at 17-18. Defendant further argues that Plaintiff cannot amend his complaint in his opposition papers to plead a claim for discrimination on the basis of his sexual orientation. Reply at 5-6. Plaintiff counters that while he did not explicitly state the claim regarding being of Guatemalan descent during his deposition, he has consistently alleged discriminatory treatment throughout his employment. Opp. at 4. Plaintiff's Sur-reply does not address his claims for discrimination on the basis of his sexual orientation. See generally Pl. Sur-Reply.
“Where . . . a counseled non-moving party submits a partial response . . not mentioning other[] [claims], that response may be deemed an abandonment of the unmentioned claims.” Camarda v. Selover, 673 Fed.Appx. 26, 30 (2d Cir. 2016) (emphasis added) (quoting another source) (internal quotation marks omitted). “A court may, and generally will, deem a claim abandoned when a plaintiff fails to respond to a defendant's arguments that the claim should be dismissed.” Walker v. City of New York, No. 14-CV-808 ER, 2015 WL 4254026, at *3 (S.D.N.Y. July 14, 2015) (quoting Lipton v. Cnty. of Orange, N.Y., 315 F.Supp.2d 434, 446 (S.D.N.Y.2004).
This Court notes that at the time of the deposition, Plaintiff was represented by counsel. See Fleming Decl. Ex. A at 2. However, Plaintiff is not currently represented by counsel and maintains in his papers that he is claiming discrimination based on his identity as a person of Guatemalan descent. Opp. at 4; Pl. Sur-Reply at 5-6. As Plaintiff is proceeding pro se, he is entitled to more latitude than if he was represented by counsel. Triestman, 470 F.3d at 475; McDonald v. Head CriminalCourt Supervisor Officer, 850 F.2d 121, 124 (2d Cir.1988).
Defendant cites that Plaintiff was asked during his deposition: “To be clear, are you alleging in this lawsuit that American Airlines discriminated against you on the basis of being from Guatemala; yes or no?” and Plaintiff responded, “No.” Memo at 17-18. However, the excerpt from Plaintiff's deposition included with Defendant's Motion for Summary Judgment does not include this exchange. See generally Fleming Decl. Ex. A. Defendant asks this Court to rely on the statement from Plaintiff to prove that he abandoned his claims regarding his Guatemalan descent, but they do not provide the necessary evidentiary support.
Further, Defendant questioned Plaintiff at length during his deposition about his claims for discrimination related to being of “Guatemalan descent.” See Fleming Decl. Ex. A. This Court does not see any prejudice to Defendant in deciding the discrimination claims on the merits, which is preferred in the Second Circuit. Elohim EPF USA, Inc. v. 162 D & Y Corp., No. 19-CV-2431 (AJN), 2021 WL 2292682, at *1 (S.D.N.Y. June 4, 2021). Therefore, this Court does not summarily dismiss Plaintiff's claims that he was discriminated against based on being of Guatemalan descent.
With respect to Plaintiff's claims of discrimination on the basis of his sexual orientation, Plaintiff's Complaint does not reference discrimination on this basis. See generally Compl. “A plaintiff may not pivot from its stated claims to new ones at the summary judgment stage simply because it inserted a few vague catch-all phrases into its pleadings.” Enzo Biochem, Inc. v. Amercham PLC, 981 F.Supp.2d 217, 224 (S.D.N.Y. 2013). While the Complaint mentioned discrimination, the fact that it lacks specific reference to discrimination on the basis of sexual orientation is fatal to the claim. See also Avillan v. Donahoe, 483 Fed.Appx. 637, 639 (2d Cir. 2012) (finding that the district court did not err in disregarding allegations raised for the first time in opposition to summary judgment). Further, Plaintiff does not reference arguments related to his sexual orientation in his sur-reply memorandum. See generally Pl. Sur-reply.
Therefore, this Court will analyze the claims of discrimination on the basis that Plaintiff is a “Latino man of Guatemalan descent” as pled in the Complaint, Compl. ¶ 2, but this Court will not consider the allegations of discrimination on the basis of sexual orientation that Plaintiff did not plead or defend in his opposition papers.
Defendant does not challenge prong two of Plaintiff's prima facie case of discrimination so this Court will address whether Plaintiff pled an adverse employment action as required under prong three.
ii. Adverse Employment Action
Defendant argues that many of the employment actions that Plaintiff complains of were not materially adverse. Memo at 18-19. Plaintiff counters that the “increased monitoring,” “removal from prestigious assignments,” and “no documented performance evaluations in 2019 had a detrimental impact on his career progression and overall job satisfaction.” Opp. at 5-6. Plaintiff also cites that he reported to Trull, he experienced disparate treatment, and his work assignments were given to other colleagues. Opp. at 3. Finally, Plaintiff alleges that Manager Mohr did not follow the guidelines related to performance counseling prior to or following the Final Warning Letter. Id. at 4.
“An adverse employment action is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities.” Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (internal quotation marks omitted). “Examples of materially adverse changes include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation.” Id. (alteration omitted) (internal quotation marks omitted).
In this Court's view, the negative performance critiques, including the Final Warning Letter did not constitute adverse employment actions as a matter of law.
“An ‘unsatisfactory' performance review is not an adverse employment action where it does not affect a person's ‘compensation, benefits, or job title.'” Kunik v. New York City Dep't of Educ., 842 Fed.Appx. 668, 672 (2d Cir. 2021), as amended (Jan. 26, 2021) (citation omitted). Here, while Plaintiff complains that the negative performance reviews and the Final Warning Letter had a negative impact on his “overall job satisfaction,” this is not sufficient to convert the critiques to adverse employment actions. Plaintiff does not plead that he lost any wages, title, or material benefits in connection with the negative performance evaluations. See Opp.; Pl. Sur-reply. Therefore, the negative performance critiques were not materially adverse employment actions.
Additionally, this Court does not find that the removal of Plaintiff from his preferred assignments, like the Hyatt Project, nor his increased monitoring by his Managers constitutes materially adverse changes in employment. This Circuit has held that the “removal from certain prestigious or desirable [assignments], increased monitoring, deflated annual evaluations, and minor disciplinary violations” do not constitute materially adverse changes in the terms and conditions of employment. Harge v. City of New York, No. 21-2293, 2022 WL 17481819, at *1 (2d Cir. Dec. 7, 2022). As stated, a materially adverse change must be “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Terry v. Ashcroft, 336 F.3d at 138. Further, the Court has been clear that “receiving unfavorable schedules or work assignments do not rise to the level of adverse employment actions[.]” Smalls v. Allstate Ins. Co., 396 F.Supp.2d 364 (S.D.N.Y. 2005) (quoting another source).
Therefore, this Court believes that Plaintiff's claims with respect to the increased monitoring and removal from prestigious assignments fail as a matter of law.
Plaintiff complains that he had to report to Trull. Opp. at 3. Defendants argue that additional supervision is not an adverse employment action and Plaintiff testified that he never reported to Trull. Reply at 7. During Plaintiff's sworn deposition, he was asked, “At no point did [Manager Mohr] say you report to [Trull]; correct?” and Plaintiff responded, “I don't remember her saying that.” Fleming Decl. Ex. A. Plaintiff was also asked, “[Trull] was never your manager, was he?” to which Plaintiff responded “No.” Id. While Plaintiff took issue with the reporting structure between him and Trull, he does not plead an accompanying tangible material impact on the conditions of Plaintiff's employment, e.g., diminished wages, title, or loss of material benefits. This Court agrees with Defendant that even “excessive or heightened scrutiny of an employee has been held by courts to be insufficient to constitute an adverse action.” Murray v. Town of N. Hempstead, 853 F.Supp.2d 247, 267 (E.D.N.Y. 2012); see also Mendez v. Starwood Hotels & Resorts Worldwide, Inc., 746 F.Supp.2d 575, 597 (S.D.N.Y.2010) (“the fact that surveillance can be an adverse employment action does not mean that it must be found to be an adverse employment action”) (emphasis in original). Therefore, Plaintiff reporting to Trull is not alone sufficient to constitute an adverse employment action.
Additionally, Plaintiff complains that Trull was able to have the title “Spokesperson” in his social media profile while Manager Mohr told Plaintiff to remove the title from his social media profile. Compl. ¶ 41. Given the “less distinguished title” it is possible that this could be considered an adverse employment action. However, as discussed infra Part A(iii), Plaintiff provides no evidence to support that any adverse employment action was motivated by discriminatory animus because Plaintiff has not shown that Trull engaged in any comparable conduct.
Finally, Plaintiff alleges that the Defendant did not follow the performance counseling guidelines for management and support staff because Manager Mohr was not documenting performance discussions between November 2019 and the Final Warning Letter. Opp. at 3-4. Defendant states that the policy expressly states, “the level of counseling and discipline generally depends on the severity of the performance problem/issue” and that “steps may be skipped or accelerated.” Reply at 8 (citing Fleming Decl. Ex. H). Further, Defendant argues that the Second Circuit has held that skipping steps related to a performance policy is not a discriminatory act. Id. (citing McGuire-Welch v. House of the Good Shepherd, 720 Fed. App'x 58, 61 (2d Cir. 2018)). Based on a review of the record, the policy does provide that “steps may be skipped or accelerated” and managers “should also document performance improvement if applicable.” Fleming Decl. Ex. H. In this Court's view, this explains why Plaintiff was receiving both positive feedback and critiques, and there is no clear violation of the policy based on the actions the Managers took.
Ultimately, Plaintiff's termination is a clear adverse employment action at prong three. Terry v. Ashcroft, 336 F.3d at 138. However, at the final prong, this Court does not find that Plaintiff has demonstrated that his termination took place under circumstances giving rise to an inference of discrimination.
iii. Inference of Discrimination
The final prong necessary to support a prima facie claim of employment discrimination is that “the adverse action took place under circumstances giving rise to an inference of discrimination.” Ruiz v. County of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010). Under NYSHRL, Plaintiff must show that he “was subjected to inferior terms, conditions, or privileges of employment because of [his] membership in one or more protected categories.” Tortorici v. Bus-Tev, LLC, No. 17-CV-7507(PAC)(KHP), 2021 WL 4177209, at *13 (S.D.N.Y. Sept. 14, 2021). The NYCHRL has a more liberal standard where “Plaintiff need only demonstrate that he was treated ‘less well' than other employees because of his protected characteristic.” Id.
This Court is not persuaded that Plaintiff has demonstrated an inference of discrimination under any standard. Plaintiff was asked multiple times during his deposition whether anyone said anything about him being Hispanic or of Guatemalan descent, and every time Plaintiff responded, “No.” Fleming Decl. Ex. A. Plaintiff relies on vague statements that Defendant treated “comparator” employees more favorably and on his supporting affidavits to raise an inference of discrimination. Pl. Sur-Reply at 2-3. Plaintiff cites an affidavit from Soogrim who alleges that he witnessed the April 30 Call between Plaintiff and Manager Thomas, Soogrim Decl. Pl. Sur-Reply at 2. Plaintiff cites to Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) and Shelden v. Barre Belt Granite Emp. Union Pension Fund, 25 F.3d 74, 79 (2d Cir. 1994) to argue that his supporting affidavits create a material dispute precluding summary judgment on his discrimination claims. Pl. Sur-Reply at 2. While Plaintiff is correct that an affidavit raising a genuine issue of material fact could preclude summary judgment, here, neither affidavit raises an inference of discrimination related to Plaintiff's protected characteristics.
“A plaintiff may raise ... an inference [of discrimination] by showing that the employer subjected him to disparate treatment, that is, 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). “When considering whether a plaintiff has raised an inference of discrimination by showing that [he] was subjected to disparate treatment, [the Second Circuit] ha[s] said that the plaintiff must show [he] was ‘similarly situated in all material respects' to the individuals with whom [he] seeks to compare [himself].” Id. (quoting Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir.1997)). “In addition, the standard ... requires plaintiff to show that similarly situated employees who went undisciplined engaged in comparable conduct.” Id. at 40.
Plaintiff's papers do not specifically name a comparator employee who is similarly situated. See generally Opp.; Pl. Sur-Reply. However, based on Plaintiff's other submission, this Court assumes that Plaintiff is referring to Trull and “white female employees” who were given credit for Plaintiff's work. Pl. Sur-Reply at 12. Plaintiff's conclusory allegations are insufficient to sustain his claims. Plaintiff provides no evidentiary or factual basis and cannot rely on his “own unilateral assumptions about how coworkers outside of [his] protected classes were treated.” Marseille v. Mount Sinai Health Sys., Inc., No. 18-CV-12136 (VEC), 2021 WL 3475620, at *5 (S.D.N.Y. Aug. 5, 2021), affd sub nom. Marseille v. Mount Sinai Hosp., No. 21-2140, 2022 WL 14700981 (2d Cir. Oct. 26, 2022).
The only factual support that Plaintiff offers is that (i) Trull was able to have the title “Spokesperson” in his public and professional profiles, while Manager Mohr told Plaintiff to remove the title from his public profiles, Compl. ¶¶ 41-43, (ii) Plaintiff was denied a pitch while a colleague based in Miami was approved for a similar pitch, Pl. Ex. H, and (iii) individuals outside of Plaintiff's protected group were given credit for his work. Pl. Sur-Reply at 12. None of these allegations are connected to an adverse employment action, and Plaintiff has not plead that any colleague engaged in “comparable conduct” to Plaintiff. Graham v. Long Island R.R., 230 F.3d at 40. For example, Plaintiff does not plead that Trull sent any unauthorized communication, that the pitch in Miami based on the Miami market was comparable to the conditions in New York, nor any specifics regarding colleagues being given credit for his work.
Plaintiff cites to Hayes v. Kerik, 414 F.Supp.2d 193, 204 (E.D.N.Y. 2006), to argue that being treated “less favorably than a similarly situated employee outside the plaintiff's protected group is a recognized method of raising an inference of discrimination for purposes of making out a prima facie case.” Pl. Sur-reply at 7. However, even that case demonstrates why Plaintiff's claim of disparate treatment must fail in the instant action. In Hayes, 414 F.Supp.2d at 204, the court noted that while a plaintiff need not plead identical conduct of an alleged comparator, the plaintiff did need to show an “objectively identifiable basis for comparability,” that was “a reasonably close resemblance of the facts and circumstances of plaintiff's and comparator's cases.” Here, Plaintiff points to no conduct that he was disciplined for that “reasonably resembles” the conduct of any comparator. Plaintiff provides no factual support that any comparator engaged in similar conduct. Therefore, this Court does not believe that Plaintiff can sustain an inference of discrimination by relying on disparate treatment between himself and similarly situated colleagues.
With respect to the affidavit, Plaintiff's supporting declaration of Stefan Soogrim is similarly insufficient to raise a plausible inference of discrimination because it does not reference any of Plaintiff's protected characteristics, nor any comments or treatment related to Plaintiff's racial identities. See Soogrim Decl. The only reference of discrimination in the declaration is that Soogrim heard Manager Thomas “raising her voice[,] criticizing[,] and being biased towards her employee.” Id. Again, conclusory remarks are insufficient to raise an inference of discrimination. Graham v. Long Island R.R., 230 F.3d at 40. Soogrim Decl. includes no information from which a reasonable fact-finder could conclude that Defendant treated Plaintiff less well because of his protected characteristics. Additionally, during his deposition, Soogrim was asked whether Manager Thomas said anything at all during the April 30 Call about Plaintiff being Hispanic or of Guatemalan descent, and Soogrim responded, “I don't remember.” Fleming Decl. Ex. B. Soogrim offers no support for Plaintiff's contention that he was discriminated against because of any protected characteristics.
Conversely, Defendant argues that there is a legal presumption that Manager Mohr (who ultimately terminated Plaintiff) did not act with discriminatory intent because she was the person who hired Plaintiff onto the communications team and promoted him to senior specialist. Memo at 19. Defendant cites to Kolesnikow v. Hudson Valley Hosp. Ctr., 622 F.Supp.2d 98, 113 (S.D.N.Y. 2009) to support the same actor inference. In Kolesnikow, 622 F.Supp.2d at 98, the Court noted “[w]hen the same actor hires a person already within the protected class, and then later fires that same person within ‘a relatively short time,' i.e., less than two years, it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire.” (citing Carlton v. Mystic Transp., Inc., 202 F.3d 129, 137-38 (2d Cir.2000) (internal quotation omitted)). Here, Plaintiff was senior corporate communications specialist based in New York from January 1, 2018 to May 13, 2020. Compl. ¶¶ 24, 243. Plaintiff was terminated a little over two years after his promotion by Manager Mohr, who is the same actor who promoted him. Despite the timing, this Court need not rely on the same actor doctrine to find no evidence giving rise to an inference of discrimination. Plaintiff offers no evidence that Manager Mohr exhibited any racial animus or mentioned his identity groups on any occasion. See Opp.; Pl. Sur-Reply. This Court believes summary judgment is appropriate because Plaintiff offers no factual support to raise a plausible inference of discrimination.
iv. Plaintiff's FRE 602 Letter
Additionally, with respect to Manager Mohr, Plaintiff argues that Manager Mohr's “testimony is based on hearsay, speculation, or information obtained from third parties” so it fails to meet the requirements of Federal Rule of Evidence 602. See FRE 602 Letter. Plaintiff states that Manager Mohr “admits that she did not directly supervise [Plaintiff] for much of the time period in question . . . making her testimony unreliable.” Id. Finally, Plaintiff states that genuine issues of material fact exist in the absence of Manager Mohr's testimony. Id. Fed. R. Evid. 602 states “[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony.” Further, case law provides that “where a party relies on affidavits or deposition testimony to establish facts, the statements must be made on personal knowledge[.]” DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012) (citing Fed.R.Civ.P. 56(c)(4)) (internal quotations omitted).
While Plaintiff argues that Manager Mohr lacks personal knowledge, he concedes that she made the decision to promote Plaintiff to senior specialist. Pl. SMF ¶ 27. Plaintiff also conceded that in the absence of Manager Scott, Plaintiff's reporting line shifted such that he reported directly to Manager Mohr. Pl. SMF ¶ 52. Finally, Plaintiff admits that Manager Mohr met with him to deliver the Final Warning Letter and ultimately notified him of his termination. Pl. SMF ¶¶ 100-103, 146.
This is sufficient personal knowledge for this Court to rely on Manager Mohr's Declaration. “[A] verified pleading, to the extent that it makes allegations on the basis of the plaintiff's personal knowledge, and not merely on information and belief, has the effect of an affidavit and may be relied on to oppose summary judgment.” Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir. 2004). Mohr Decl. does not rely “merely on information and belief” and includes many specific incidents of Manager Mohr's direct interactions with Plaintiff, see, e.g., Mohr Decl. ¶¶ 8, 16, 45. Additionally, Mohr Decl. notes where Manager Mohr's personal knowledge was limited. see, e.g., Mohr Decl. ¶¶ 5-6 (“I did not directly supervise Plaintiff at that time, nor did I have an opportunity to observe first-hand Plaintiff's unreviewed work product.”). Therefore, this Court is satisfied that Manager Mohr's declaration need not be excluded on Fed.R.Civ.P. 56(c)(4) or Fed.R.Evid. 602 grounds. However, given Plaintiff's concerns, this Court has declined to rely on Manager Mohr's declaration in reaching the Report & Recommendation herein.
Even in the absence of Mohr Decl., Plaintiff's claims fail as a matter of law. Plaintiff has not met his burden of establishing that Manager Mohr acted with discriminatory animus against him. He points to no conduct, statements, or communications from which this Court could reasonably conclude that his termination took place under circumstances giving rise to an inference of discrimination.
Therefore, this Court recommends a finding that Plaintiff has failed to establish a prima facie case of discrimination.
B. Defendant offers non-discriminatory reasons for Plaintiff's termination.
Assuming arguendo, the District Judge disagrees that Plaintiff has failed to establish a prima facie case of discrimination, this Court also believes that Defendant has offered legitimate, non-discriminatory reasons for Plaintiff's termination. Defendant cites to Plaintiff's performance reviews, the failed Film Shoot, Plaintiff's failure to follow Defendant's COVID procedures with respect to Emails 1 and 2, the 737 Interview, and the RAI Interview as legitimate reasons for Plaintiff's termination. Memo at 21-22. Plaintiff states that Defendant's reasons for termination are pretextual and these incidents provide support for his claims that he was subject to undue scrutiny. Opp. at 3-4.
Evidence of a plaintiff not meeting performance standards can suffice as a legitimate, non-discriminatory reason for firing. See, e.g., Downey v. Adloox, Inc., 789 Fed.Appx. 903, 905 (2d Cir. 2019). Plaintiff concedes that on multiple occasions he acted in direct contradiction to directives from his Managers, e.g., the 737 Interview and Emails 1 and 2. Pl. SMF ¶¶ 42-43, 69, 73. This Court is satisfied that Defendant offered legitimate non-discriminatory performance issues as the reason for Plaintiff's termination.
C. Plaintiff offers no evidence to rebut Defendant's reasons as pretextual.
Plaintiff alleges that the disparate treatment of comparators shows that Defendant's reasons for termination were pretextual. Pl. Sur-reply at 4-11. Defendant counters that at best Plaintiff has demonstrated that he disagrees with the performance feedback. Reply at 8.
To survive summary judgment and get to the jury, “it is not enough to disbelieve the employer; the factfinder must also believe the plaintiff's explanation of intentional discrimination.” Bjorklund v. Golub Corp., 832 Fed.Appx. 97, 98 (2d Cir. 2021) (citation and internal quotation marks omitted). “The mere fact that an employee disagrees with her employer's assessment of her work, however, cannot, standing on its own, show that the employer's asserted reason for termination was pretextual.” Ricks v. Conde Nast Publications, Inc., 92 F.Supp.2d 338, 347 (S.D.N.Y. 2000), affd, 6 Fed.Appx. 74 (2d Cir. 2001).
Plaintiff has not satisfied his burden to establish pretext or that discrimination was a factor in his termination. Plaintiff relies on cases that are not binding in this jurisdiction to argue that disparate treatment and comparators can satisfy pretext. See, e.g., Pl. Sur-reply at 7-9 (citing Thurman v. Yellow Freight Sys., 90 F.3d 1160, 1167 (6th Cir. 1996); Coleman v. Donahoe, 667 F.3d 835, 857 (7th Cir. 2012); Buie v. Quad/Graphics, Inc., 366 F.3d 496, 508 (7th Cir. 2004)). Plaintiff is correct that even in this jurisdiction, a showing of disparate treatment can satisfy the pretext prong. Graham, 230 F.3d at 40. However, the cases cited by Plaintiff are factually distinguishable and provide further evidence as to why his claims fail as a matter of law.
In Thurman, 90 F.3d at 1167, the Sixth Circuit affirmed a trial court's finding of pretext where defendant changed its factual position as litigation continued and the court concluded that the changing rationale for making an adverse employment decision could satisfy as pretext. Conversely, here, Plaintiff has pointed to no change in rationale and Defendant maintains that Plaintiff was fired for performance issues as detailed in his Final Warning Letter. Plaintiff contends that like in Thurman, Defendant's credibility is in question because they attempted to conceal evidence of the comparator's more favorable treatment. Pl. Sur-Reply at 4. However, unlike in Thurman, 90 F.3d at 1167, Plaintiff provides no specifics regarding any alleged “concealment” and this Court has already concluded that it finds no issues with the credibility of Manager Mohr's testimony. See supra Part A(iv).
In Coleman, 667 F.3d at 841, the Seventh Circuit noted “the proposed comparator must be similar enough to permit a reasonable juror to infer, in light of all the circumstances, that an impermissible animus motivated the employer's decision.” The court noted that Plaintiff met his burden by showing “two white, male co-workers were disciplined by the same decisionmaker, subject to the same code of conduct, and disciplined more leniently for violating the same rule as [plaintiff].” Id. Conversely, here, Plaintiff has not shown that any proposed comparator engaged in the same conduct as Plaintiff and was disciplined more leniently than he was.
Lastly, in Buie, 366 F.3d at 508, the Seventh Circuit noted “similarly-situated employees who were involved in misconduct of comparable seriousness, but did not have a similar disability, could establish pretext.” Again, Plaintiff has not established that anyone engaged in misconduct of comparable seriousness and received more lenient treatment. As analyzed supra Part A(iii), Plaintiff cannot sustain a disparate treatment claim because he has not shown “similarly situated employees who went undisciplined engaged in comparable conduct.” Graham, 230 F.3d at 40.
Defendant cites cases in this jurisdiction that clearly illustrate why Plaintiff's claims of pretext must fail as a matter of law based on his documented performance deficiencies. Memo at 23-24. “Given the overwhelming evidence of performance deficiencies . . . no reasonable jury could conclude on this record that it was ‘more likely than not that the employer's decision was motivated at least in part by discrimination.'” Owens v. City of New York Dep't of Educ., No. 21-2875, 2022 WL 17844279, at *2 (2d Cir. Dec. 22, 2022). Defendant provides clear records regarding Plaintiff's performance deficiencies including the Film Shoot, Plaintiff's failure to follow Defendant's COVID directives with respect to Emails 1 and 2, and the 737 Interview. Memo at 21-22. Plaintiff's subjective beliefs that he performed at level are insufficient to preclude summary judgment. See, e.g., White v. Pacifica Found., 973 F.Supp.2d 363, 382 (S.D.N.Y. 2013) (“[Plaintiff]'s fundamental disagreement with the conclusions [his] supervisors drew from incidents which [he] admits occurred, and [his] subjective belief that they should not have reflected badly on [his] performance because they were someone else's fault, is not evidence that [his] supervisors' appraisals were a sham, invented to mask discrimination.” (quoting another source)).
Therefore, as Plaintiff fails to offer evidence that his termination was a pretext for discrimination, this Court recommends that summary judgment on his employment discrimination claims be GRANTED.
D. Plaintiff fails to establish a prima facie case of Retaliation.
Plaintiff argues that he was retaliated against after the VP Moses Report and his application for FMLA. Opp. at 5; Pl. Sur-reply at 9, 11. Defendant contends that Plaintiff cannot establish a claim for retaliation under Title VII, FMLA, NYSHRL, or NYCHRL. Memo at 24-25.
Under Title VII, a plaintiff bears the initial burden of establishing a prima facie case of discrimination by showing (i) the plaintiff “participated in a protected activity,” (ii) the plaintiff “suffered an adverse employment action,” and (iii) “there was a causal connection between [his] engaging in the protected activity and the adverse employment action.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010). “A plaintiff engages in protected activity when [the individual] (1) opposes employment practices prohibited under Title VII; (2) makes a charge of discrimination; or (3) participates in an investigation, proceeding or hearing arising under Title VII.” Ramirez v. Michael Cetta Inc., No. 19-CV-00986, 2020 WL 5819551, at *19 (S.D.N.Y. Sept. 30, 2020).
Under NYCHRL, a plaintiff must demonstrate that they took an action opposing the employer's discrimination and “the employer engaged in conduct that was reasonably likely to deter a person from engaging in such action[.]” Mihalik, 715 F.3d at 112. Implicit references to unlawful conduct may suffice to establish protected activity under this standard. Id. at 115. A plaintiff “need not prove that [his] underlying complaint ... had merit, but only that it was motivated by a good faith, reasonable belief that the underlying employment practice was unlawful.” Marseille v. Mount Sinai Hosp., No. 21-2140, 2022 WL 14700981, at *2 (2d Cir. Oct. 26, 2022). In 2019, NYSHRL was amended such that the “standard for claims [is] closer to the standard under the NYCHRL.” Wellner v. Montefiore Med. Ctr., No. 17 CIV. 3479 (KPF), 2019 WL 4081898, at *5 n.4 (S.D.N.Y. Aug. 29, 2019).
Here, Plaintiff alleges that the VP Moses Report where Plaintiff “raised concerns and discriminatory treatment and a change in reporting structure” was the basis for his retaliation claims. Pl. Sur-reply at 9. However, during his deposition, Plaintiff testified that he never raised his race or purported national origin in his discussions with VP Moses. Fleming Decl. Ex. A at 50.
Even under the liberal standard of the NYCHRL, Plaintiff has not demonstrated that he engaged in a protected activity by opposing discrimination in the workplace. “Filing a grievance complaining of conduct other than unlawful discrimination . . . is simply not a protected activity subject to a retaliation claim under [NYSHRL or NYCHRL.]” Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 313 n. 11 (N.Y. 2004). Additionally, in Kelly v. Howard I. Shapiro & Assocs. Consulting Engineers, P.C., 716 F.3d 10, 14-18 (2d Cir. 2013), the Second Circuit affirmed the dismissal of a plaintiff's retaliation claims where she failed to make out a prima facie case by the repeated allegations of “discrimination,” “sexual favoritism,” and “harassment” in her complaints. Similarly, here, Plaintiff's claims are insufficient to establish a prima facie case of retaliation because he did not oppose unlawful workplace discrimination. Plaintiff complained of the reporting structure, but did not make an allegation that the change was motivated by discrimination regarding Plaintiff's protected characteristics. See Fleming Decl. Ex. A. Therefore,
Plaintiff has failed to establish the first prong of a prima facie case of retaliation under either NYCHRL, NYSHRL, or Title VII so this Court recommends that summary judgment be GRANTED.
i. FMLA Claims
The FMLA makes it unlawful for “any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” by the statute. 29 U.S.C. § 2615(a)(1). “In order to make out a prima facie case of FMLA retaliation, a plaintiff must establish that ‘(1) [he] exercised rights protected under the FMLA; (2) [he] was qualified for [his] position; (3) [he] suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent.'” Duarte v. St. Barnabas Hosp., 265 F.Supp.3d 325, 356 (S.D.N.Y. 2017) (quoting another source). “FMLA is not a shield to protect employees from legitimate disciplinary action by their employers if their performance is lacking in some manner unrelated to their FMLA leave.” Geromanos v. Columbia Univ., 322 F.Supp.2d 420, 429 (S.D.N.Y. 2004) (quoting another source).
Here, Plaintiff cannot establish that his termination occurred under circumstances giving rise to an inference of retaliatory intent. Plaintiff alleges that he raised questions about the timing of his termination with respect to his FMLA application. Opp. at 6; Pl. Sur-reply at 9. Plaintiff submitted his FMLA request in the evening on May 8, 2020, and he was subsequently terminated on May 13, 2020. Compl. ¶¶ 120, 128. This timing alone is insufficient to raise an inference of retaliatory intent based on the record before this Court. Plaintiff received his Final Warning Letter on April 15, 2020, Def. SMF ¶ 100, and in the afternoon of May 8, 2020 (before Plaintiff submitted his FMLA leave request), HR personnel exchanged emails about the decision to terminate Plaintiff. Fleming Decl. Ex. WWW. Therefore, it is clear that the decision to terminate Plaintiff occurred before his FMLA request was filed. “Where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.” Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001), as amended (June 6, 2001).
Plaintiff fails to establish a prima facie case of discrimination under the FMLA, therefore this Court recommends that the Motion for Summary Judgment on the retaliation claims be GRANTED.
E. Hostile Work Environment
Defendant argues that Plaintiff's claims of a hostile work environment fail as a matter of law. Memo at 29-30. Plaintiff counters that he was subjected to a hostile work environment because of the “constant criticism, poor treatment, and isolation he experienced at the hand of his [Managers.]” Opp. at 6.
The Court looks to the totality of the circumstances in determining whether a hostile work environment exists under Title VII including: the frequency and severity of the conduct, whether the conduct is physically threatening or humiliating, whether the conduct unreasonably interfered with a plaintiff's work performance, and the effect on a plaintiff's psychological wellbeing. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Under federal law, a plaintiff must show that the conduct was sufficiently severe and pervasive, rather than “[m]erely offensive, unprofessional, or childish” conduct. Payton v. City Univ. Of New York, 453 F.Supp.2d 775, 785 (S.D.N.Y. 2006) (internal citations omitted).
Under NYSHRL, plaintiff must show that he “was subjected to inferior terms, conditions, or privileges of employment because of [his] membership in one or more protected categories.” Tortorici v. Bus-Tev, LLC, No. 17-CV-7507(PAC)(KHP), 2021 WL 4177209, at *13 (S.D.N.Y. Sept. 14, 2021). The NYCHRL has a more liberal standard where “Plaintiff need only demonstrate that he was treated ‘less well' than other employees because of his protected characteristic.” Id.
This Court agrees with Defendant that none of the conduct Plaintiff complains of, considered alone or in their totality, establish a hostile work environment. Reply at 12. Further, even under the most liberal standard of NYCHRL, Plaintiff has not shown that he was treated less well because of his protected characteristics.
Plaintiff alleges that Manager Mohr unjustly critiqued Plaintiff's work and prevented Plaintiff from performing elements of his job without supervision, and Manager Thomas threatened and yelled at Plaintiff during the April 30 Call. Pl. Sur-reply at 12-13. As discussed supra Part A(iii), Plaintiff has failed to raise an inference of discrimination with respect to any of the conduct he complains of. Petty slights, trivial inconveniences, and mere personality conflicts cannot sustain a claim of hostile work environment even under the liberal standard of the NYCHRL. Marseille v. Mount Sinai Hosp., No. 21-2140, 2022 WL 14700981, at *2 (2d Cir. Oct. 26, 2022). Plaintiff must demonstrate a connection between the incidents he complains of and a relevant protected characteristic. Id. With respect to the scrutiny of Manager Mohr, “excessive criticism and rudeness do not constitute a hostile work environment.” Ramirez v. Temin & Co., Inc., No. 20 CIV. 6258 (ER), 2021 WL 4392303, at *8 (S.D.N.Y. Sept. 24, 2021). Additionally, even crediting Plaintiff's argument that Manager Thomas yelled at Plaintiff during the April 30 Call, personality conflicts do not support claims of discrimination. Davis-Bell v. Columbia Univ., 851 F.Supp.2d 650, 678 (S.D.N.Y. 2012). In Davis-Bell, 851 F.Supp.2d at 675, the Court granted a summary judgment motion on a NYCHRL claim where the plaintiff did not assert derogatory comments or ridicule based on her protected characteristic. Similarly, here, Plaintiff has not alleged a single derogatory comment or ridicule based on his protected characteristics.
Therefore, this Court recommends that the Motion for Summary Judgment on Plaintiff's hostile work environment claims be GRANTED.
RECOMMENDATION
For the foregoing reasons, this Court recommends that Defendant's Motion for Summary Judgment be GRANTED.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections shall be filed with the Clerk of Court and on ECF. Any requests for an extension of time for filing objections must be directed to Judge Clarke. Failure to file objections within fourteen days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003). Defendant is directed to email a copy of this Report and Recommendation to Plaintiff and file such email notification on the docket. The Clerk of the Court is respectfully directed to mail a copy of this Report and Recommendation to Plaintiff.
ORDER
SO ORDERED.