Opinion
1:19-cv-07070 (JPC) (SDA)
10-22-2022
Omer Waqas Khwaja, Plaintiff, v. Jobs to Move America et al., Defendants.
HONORABLE JOHN P. CRONAN, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
STEWART D. AARON United States Magistrate Judge.
Before the Court is a motion by defendants, Jobs to Move America (“JMA”), Madeline Janis (“Janis”) and Linda Perez-Nguyen (“Nguyen”) (collectively, “Defendants”), pursuant to Rule 56 of the Federal Rules of Civil Procedure, seeking summary judgment dismissing all remaining claims contained in the Amended Complaint of Plaintiff Omer Waqas Khwaja (“Plaintiff” or “Khwaja”). (Defs.' Mot. for Summ. J., ECF No. 109.) Also before the Court is Defendants' Letter Motion seeking sanctions against Plaintiff. (Defs.' 9/9/22 Ltr. Mot., ECF No. 123.) For the reasons set forth below, I respectfully recommend that Defendants' motion for summary judgment be GRANTED and that Defendants' request for sanctions be DENIED.
The facts below are derived from Defendants' Rule 56.1 Statement and Plaintiff's response thereto and are supplemented by other record evidence, construed in the light most favorable to Plaintiff, as needed to support the recommendations contained herein.
Khwaja is a former employee of JMA, a California not-for-profit corporation. (Am. Compl., ECF No. 63, ¶¶ 2-3.) During the time period relevant to this dispute, Defendant Janis was JMA's Executive Director and Defendant Nguyen was JMA's Deputy Director. (Id. ¶¶ 4-5.)
JMA first contracted with Khwaja to perform a short-term legal research project in 2017. (Defs.' 56.1 ¶ 14; Pl.'s 56.1 Resp. ¶ 14.) At that time, Khwaja recently had graduated from law school. (Id.) Janis recommended him as a potential candidate for the newly created position of Team Director of the New York Office. (Defs.' 56.1 ¶ 15; Pl.'s 56.1 Resp. ¶ 15.) Nguyen, who conducted the hiring process for the Team Director role, hired Khwaja because of his ties to New York and his past work with the labor movement. (Id.) Plaintiff began his employment for JMA in January 2018 as the first Director of its New York office. (Defs.' 56.1 ¶ 16; Pl.'s 56.1 Resp. ¶ 16.)
The Director of the New York office was a Team Director and was responsible for, among other things, supervising JMA's program in the northeast region, specifically, leading major projects; building a program to advocate for New York public officials to support JMA's proposed workforce development and equity procurement policies; cultivating relationships with key decision makers; coordinating regional goals with the other JMA regions to ensure alignment around goals; and hiring and supervising the New York team. (Defs.' 56.1 ¶ 17; Pl.'s 56.1 Resp. ¶ 17.) All Team Directors also were responsible for their team's staff work schedules and responsibilities, including approving payroll hours; approving time off; approving expenses, equipment and supply purchases; designing training and development; conducting staff evaluations; maintaining staff files; and enforcing JMA policies. (Defs.' 56.1 ¶ 18; Pl.'s 56.1 Resp. ¶ 18.)
Nguyen directly supervised Khwaja, though Janis supervised him for about two months when Nguyen went on sabbatical in the summer of 2018. (Defs.' 56.1 ¶ 19; Pl.'s 56.1 Resp. ¶ 19.) During the first five months or more, Khwaja worked mostly by himself on New York projects. (Defs.' 56.1 ¶ 25; Pl.'s 56.1 Resp. ¶ 25.) In about May 2018, Khwaja hired the first staff person for the New York office, a community organizer named Franklin Wilson (“Wilson”). (Id.) Wilson was terminated in November 2018 because he was “underperforming.” (See Am. Compl. ¶ 76; Khwaja Dep. Tr., ECF No. 115-1, at 257; Janis Decl. ¶ 45.) When discussing Wilson's termination with Janis, Khwaja admittedly used “crass” language, stating that it was his first “real termination” and thanked her “for popping my cherry.” (Khwaja Dep. Tr. at 257.)
While Defendants contend that “[t]he decision to terminate Mr. Wilson's employment was entirely Mr. Khwaja's based on Mr. Khwaja's description of Mr. Wilson's inability to meet the basic benchmarks of the position” (Janis Decl. ¶ 45), Plaintiff contends that he wanted to “extend” Wilson's “probation,” but that he was “forced” to “fire” Wilson. (Am. Compl. ¶ 76.)
Starting in November 2018, three other New York-based staff members of JMA began sharing an office with Khwaja. (Defs.' 56.1 ¶ 28; Pl.'s 56.1 Resp. ¶ 28.) Two of those staff members -Mo-Yain Tham (“Tham”) and Lorelei Christie (“Christie”)-were being supervised by Khwaja. (Id.) The third staff member, Sophia Reuss (“Reuss”), was working with Communications Director Alaa Milbes (“Milbes”) in the Communications Department. (Id.) Reuss, Tham and Christie met to draw up community guidelines setting expectations for how they should behave in their shared office space in New York. (Defs.' 56.1 ¶ 29; Pl.'s 56.1 Resp. ¶ 29.) Reuss presented the guidelines to Khwaja in December 2018. (Id.) Reuss said that the staffers created the guidelines because they had a hard time sharing an office with Khwaja. (Id.)
Tham started work at JMA on November 15, 2018. (Tham Decl. ¶ 1.)
Christie began working as a full-time intern at JMA beginning in late September 2018. (Janis Decl. ¶ 28.)
Reuss, who commenced her employment at JMA in November 2018, worked out of the New York office and was supervised remotely by Milbes, who was in California. (Reuss Dep. Tr., ECF No. 103-1, at 21, 29, 81.)
From December 21, 2018 to January 7, 2019, all staff at JMA were on a winter break. (Defs.' 56.1 ¶ 45; Pl.'s 56.1 Resp. ¶ 45.) During that time, Khwaja assigned Christie the work of writing an article about the passage of New York's 2018 sexual harassment law. (Id.) Christie researched and drafted the article. (Id.) Reuss helped draft the article. (Defs.' 56.1 ¶ 47; Pl.'s 56.1 Resp. ¶ 47.)
JMA staff members used tools referred to as “POPs” to describe the purpose, proposed outcomes and process for each communication request. (Milbes Decl. ¶ 5.) The “POP” for the subject article (to be published as a blog post), which Khwaja himself had a hand in preparing (see Am. Compl. ¶ 97; Milbes Decl. ¶ 17), contained a first draft of the article that listed at the bottom the names of Khwaja and Christie as authors. (See Milbes Decl. Ex. A, ECF No. 111-1, at JMA 003442; see also Defs.' 56.1 ¶ 47; Pl.'s 56.1 Resp. ¶ 47 (citing to “the ‘POP' for the sexual harassment article”).) On January 15, 2019, Milbes shared over instant messenger with Khwaja that she did not think publishing the article under Khwaja's name was the right fit because he would be a man talking about sexual harassment of women in the workplace. (Defs.' 56.1 ¶ 49; Pl.'s 56.1 Resp. ¶ 49.) In response to Milbes's comments, Khwaja had an angry, emotional outburst in the presence of Christie and Reuss. (See Am. Compl. ¶ 106; Khwaja Dep. Tr. at 216.)
Milbes's message sent to Plaintiff at 8:37 a.m. on January 15, 2019 stated: “So sorry this is coming up at the last minute but I just spoke with sophia [Reuss] and i'm wondering if we will get backlash from having you publish the piece given that you're a man talking about a sexual harassment and women in the workplace. . .. I definitely want to think of other pieces we can write and publish under your name this year as part of our 2019 goals but I don't think this is the right fit. What do you think? . . ..” (1/15/19 Message, ECF No. 111-3.) Plaintiff then responded at 1:02 p.m.: “put sophia [Reuss] and lorelei [Christie]'s name on it.” (Id.) However, the subject article was published with Khwaja listed as the primary author. (Defs.' 56.1 ¶ 57; Pl.'s 56.1 Resp. ¶ 57.)
Defendants' 56.1 Statement states that “Plaintiff found the [Milbes's] comment provoking and had an angry, emotional outburst during which he yelled in front of staffers Christie and Reuss.” (Defs.' 56.1 ¶ 50.) In response, Khwaja denies yelling (see Pl.'s 56.1 Resp. ¶ 50), but the paragraph of his declaration to which he cites in support of his supposed denial (i.e., Khwaja Decl. ¶ 14) makes no reference to the January 15, 2019 incident. In any event, Khwaja himself attached to his Declaration as an exhibit documents produced by Reuss which are messages with Christie on January 15, 2019, which reflect Christie's view that Khwaja was yelling. (Khwaja Decl., Ex. A, ECF No. 124-2 (described by Khwaja on ECF as “Exhibit Reuss Responsive Producution [sic]: Exhibit A”), at 1-2.) Furthermore, Christie testified at her deposition in this case that Khwaja “point[ed] a finger in [her] face” and spoke in “an angry tone” with “an elevated voice level.” (Christie Dep. Tr., ECF No. 115-2, at 43.)
Reuss reported to Milbes that Khwaja's reaction was “intense” and that he was visibly angry. (Milbes Decl. ¶ 25; Milbes Decl. Ex. B, ECF No. 111-2, at 6 (chats between Milbes and Reuss).) In response to a question that Khwaja put to her at her deposition in this case, Reuss testified: “[Y]ou were sitting at your desk, which was directly next to mine, and you, like, got up really rapidly and said something like, I'm putting my [f-king] foot down, and started yelling at me, and sort of had this very angry, like, full of rage outburst . . ..” (Reuss Dep. Tr. at 124.)
Paragraph 51 of Defendants' 56.1 Statement states: “Reuss reported to Milbes that Plaintiff's reaction was ‘intense' and that Plaintiff was visibly angry. She reported the Plaintiff yelled the f*** word. She felt Plaintiff's anger was directed at her.” (Defs.' 56.1 ¶ 51.) In response, Plaintiff disputes these statements (see Pl.'s 56.1 Resp. ¶ 51), but the paragraph of his declaration to which he cites in support of his supposed dispute (i.e., Khwaja Decl. ¶ 14) makes no reference to the January 15, 2019 incident.
The same day, January 15, 2019, Milbes reported to Nguyen the incident involving Khwaja. (Nguyen Decl. ¶ 46.) After speaking with members of the New York staff, on or about January 17, 2019, Nguyen decided to place Khwaja on administrative leave while JMA investigated what had occurred. (See id. ¶ 51; Am. Compl. ¶ 109.)
JMA retained outside counsel to conduct the investigation. (See Nguyen Decl. ¶ 51; Am. Compl. ¶ 109.) Outside counsel interviewed Christie, Tham, Reuss and Milbes and prepared a report. (See Nguyen Decl. ¶¶ 52-53; Janis Decl. ¶ 34.) After reviewing outside counsel's report and interview notes, Nguyen and Janis made a preliminary decision to terminate Khwaja. (See Nguyen Decl. ¶ 53; Janis Decl. ¶ 36.) They were concerned that Christie, Tham, Reuss and Milbes potentially could look for other employment if Khwaja was not terminated, since these employees were not comfortable working with him. (See Nguyen Decl. ¶ 52; Janis Decl. ¶ 35.)
These documents are not part of the record before the Court.
Christie testified that she “remember[ed] just feeling like sometimes uncomfortable with the sexual nature of things that [Plaintiff] shared with [her], and just like the inappropriateness with which [Plaintiff] gave [her] instructions regarding projects.” (Christie Dep. Tr. at 205.) Tham states that “having Plaintiff as a supervisor was very challenging.” (Tham Decl. ¶ 7.) Reuss testified that she had told her supervisor on January 15, 2019, after the incident, that she “was going home and that [she] didn't feel comfortable working in the office anymore . . . sharing space with [Plaintiff].” (Reuss Dep. Tr. at 126.) Milbes stated that Plaintiff “was very difficult to work with” and that she “found him disorganized and hard to follow.” (Milbes Decl. ¶ 11.)
On February 4, 2019, Nguyen and Janis met with Khwaja to inform him of the allegations against him: bullying and unsatisfactory job performance. (Defs.' 56.1 ¶ 69; Pl.'s 56.1 Resp. ¶ 69.) After the interview, Nguyen and Janis determined that they had just cause to terminate Khwaja's employment and they did so effective February 6, 2019. (Nguyen Decl. ¶ 58; Janis Decl. ¶¶ 38-39.) The termination letter sent to Khwaja mentions as “[f]irst and most concerning” his “problematic and ineffective supervision as well as bullying of junior level staff in the New York office” and states that his “verbal attack and bullying of junior staff” during the January 15, 2019 incident “resulted in an investigation” that surfaced the “serious issues” set forth in the letter. (See 2/6/19 Termination Letter, ECF No. 112-1.)
PROCEDURAL HISTORY
On November 13, 2019, I issued a Report and Recommendation in this case in which I recommended that Defendants' motion to dismiss Plaintiff's original Complaint be granted, but that Plaintiff be given leave to replead. (11/13/19 R&R, ECF No. 41, at 21.) On April 21, 2020, District Judge Daniels adopted my 11/13/19 R&R in full, dismissing the original Complaint and granting Plaintiff leave to file an amended pleading. (4/21/20 Mem. Dec. & Order, ECF No. 51.)
On November 16, 2020, Plaintiff filed a revised Amended Complaint; on November 23, 2020, he filed a corrected version, which is the operative complaint. (Am. Compl., ECF No. 63.) On December 21, 2020, Defendants moved to dismiss the Amended Complaint. (See Defs.' 12/21/20 Mot. to Dismiss, ECF No. 68.)
On March 26, 2021, I issued a Report and Recommendation in which I recommended that (1) Plaintiff's First and Second Causes of Action be dismissed to the extent that they concerned race or national-origin based discrimination or retaliation, but go forward against Defendant JMA with regard to gender-based discrimination and retaliation; (2) Plaintiff's Third, Fourth, Fifth, Sixth and Seventh Causes of Action be dismissed in their entirety; (3) Plaintiff's Eighth, Ninth, Tenth and Eleventh Causes of Action be dismissed to the extent that they concerned race or national-origin based discrimination or retaliation but go forward against Defendants JMA, Janis and Nguyen with regard to gender-based discrimination and retaliation; (4) Plaintiff's Twelfth Cause of Action be dismissed to the extent that it concerns race or national-origin based discrimination or retaliation but go forward against Defendants Janis and Nguyen with regard to gender-based discrimination and retaliation; and (5) Plaintiff's Thirteenth, Fourteenth, Fifteenth and Sixteenth Causes of Action be dismissed in their entirety. (3/26/21 R&R, ECF No. 74, at 22.) On September 1, 2021, District Judge Cronan, to whom this case had been reassigned, adopted my 3/26/21 R&R in full. (9/1/21 Op. & Order, ECF No. 78.)
Plaintiff's First Cause of Action alleges a claim for discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and his Second Cause of Action alleges a claim for retaliation in violation of Title VII. (See Am. Compl. ¶¶ 132-46.)
Plaintiff's Eighth Cause of Action alleges a claim for discrimination in violation of the New York State Human Rights Law (the “NYSHRL”), his Ninth Cause of Action alleges a claim for retaliation in violation of the NYSHRL, his Tenth Cause of Action alleges a claim for gender discrimination in violation of the New York City Human Rights Law (the “NYCHRL”) and his Eleventh Cause of Action alleges a claim for retaliation in violation of the NYCHRL. (See Am. Compl. ¶¶ 173-84.)
Plaintiff's Twelfth Cause of Action alleges a claim for aiding and abetting violations of the NYSHRL. (See Am. Compl. ¶¶ 185-88.)
Accordingly, the claims that remain in this case are Plaintiff's Title VII claims against Defendant JMA with regard to gender-based discrimination and retaliation; Plaintiff's NYSHRL and NYCHRL claims against Defendants JMA, Janis and Nguyen with regard to gender-based discrimination and retaliation; and Plaintiff's NYSHRL aiding and abetting claims against Defendants Janis and Nguyen with regard to gender-based discrimination and retaliation.
On August 8, 2022, Defendants filed their motion for summary judgment, and accompanying papers, seeking dismissal of all Plaintiff's remaining claims. (See Defs.' Mot. for Summ. Judg.; Defs.' 56.1, ECF No. 110; Milbes Decl., ECF No. 111; Janis Decl., ECF No. 112; Tham Decl., ECF No. 113; Nguyen Decl., ECF No. 114; Weber 8/8/12 Decl., ECF No. 115.) Pursuant to the schedule set by the Court at the parties' joint request, Plaintiff's opposition to the motion for summary judgment was due to be filed on September 6, 2022. (See 7/29/22 Order, ECF No. 108.) On September 7, 2022, Plaintiff belatedly filed a request to extend the deadline for his opposition to that day (see Pl.'s 9/7/22 Ltr., ECF No. 118), which the Court granted. (See 9/7/22 Order, ECF No. 119.) Plaintiff also missed this deadline and belatedly filed his opposition papers on September 9 and 10, 2022. (See Pl.'s 9/9/22 Opp. Mem., ECF No. 120; Pl.'s 56.1 Resp., ECF No. 122; Khwaja 9/9/22 Decl., ECF No. 124; Pl.'s 9/10/22 Ltr., ECF No. 125.) On September 28, 2022, Defendants filed their reply papers. (See Defs.' 9/28/22 Reply, ECF No. 132; Portillo Decl., ECF No. 133; Wytkind Decl., ECF No. 134.)
LEGAL STANDARDS
Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986). The moving party has the initial burden of demonstrating the absence of a disputed issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 321-23 (1986). A dispute concerning material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (quoting Anderson, 477 U.S. at 248). In making its determination, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Anderson, 477 U.S. at 255.
To defeat summary judgment, it is not sufficient for the non-moving party to present evidence that is conclusory or speculative, with no basis in fact. See Anderson, 477 U.S. at 249-50. Indeed, the non-moving party must go beyond the pleadings and “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). Instead, the nonmoving party must present “specific facts showing that there is a genuine issue for trial.” Beard v. Banks, 548 U.S. 521, 529 (2006) (quoting Fed.R.Civ.P. 56(e)).
Where “the party opposing summary judgment is proceeding pro se, the court should read his papers ‘liberally,' and ‘interpret them to raise the strongest arguments that they suggest.'” Leckie v. Robinson, No. 17-CV-08727 (PGG) (BCM), 2020 WL 5238602, at *7 (S.D.N.Y. Feb. 6, 2020) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)), report and recommendation adopted, 2020 WL 2114846 (S.D.N.Y. May 4, 2020); see also Lerer v. Spring Valley Fire Dep't, Inc., No. 19-CV-10714 (CS), 2021 WL 1425238, at *3 (S.D.N.Y. Apr. 14, 2021) (“Pro se litigants must be afforded ‘special solicitude,' . . . particularly where motions for summary judgment are concerned”) (quoting Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010); Jackson v. Fed. Express, 766 F.3d 189, 195 (2d Cir. 2014)). However, the degree of solicitude afforded to a pro se plaintiff “may be lessened where the particular pro se litigant is experienced in litigation and familiar with the procedural setting presented.” Tracy, 623 F.3d at 102. “The ultimate extension of this reasoning is that a lawyer representing himself ordinarily receives no such solicitude at all.” Id.
This action initially was filed by Plaintiff pro se. (See Compl., ECF No. 2.) Counsel, Louis Johnson (“Johnson”), entered an appearance on behalf of Plaintiff on May 18, 2020. (See 5/18/20 Not. of App., ECF No. 54.) Johnson was relieved as counsel of record on May 23, 2022. (See 5/23/22 Memo End., ECF No. 98.) During the period when Johnson was representing Plaintiff, he claims to have worked roughly 300 hours, including time spent drafting pleadings, motions, discovery documents and correspondence. (See Johnson 9/9/22 Aff., ECF No. 121.)
Court records reflect that Plaintiff was admitted to practice in this Court on November 26, 2019, about four months after he commenced this action. On January 6, 2021, Plaintiff entered an appearance as counsel on behalf of himself. (Not. of Subst., ECF No. 69.) At that time, Plaintiff purported to be substituting in place of Johnson as counsel of record. (See id.) However, the Court entered a memo endorsement on January 7, 2021, stating that the notice filed was not effective to relieve Johnson as counsel of record and that, if Johnson wanted to withdraw, he need to comply with Local Civil Rule 1.4. (See 1/7/21 Mem. End., ECF No. 71.) As set forth in footnote 15, supra, Johnson was not relieved as counsel of record until May 23, 2022. (See 5/23/22 Memo End.)
DISCUSSION
I. Title VII And NYSHRL Gender-Based Discrimination Claims
Title VII makes it unlawful for an employer “to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex . . ..” 42 U.S.C. § 2000e-2(a)(1). “Title VII thus requires a plaintiff asserting a discrimination claim to allege two elements: (1) the employer discriminated against him (2) because of his . . . sex . . ..” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015).
The same standards apply to claims pursuant to the NYSHRL. See Winston v. Verizon Servs. Corp., 633 F.Supp.2d 42, 47 (S.D.N.Y. 2009) (“The NYSHRL has long been interpreted to require the same proofs and burdens as a federal claim under Title VII of the Civil Rights Act of 1964 . . ..”). Thus, the Court considers the Title VII and NYSHRL discrimination claims, as well as the Title VII and NYSHRL retaliation claims, in tandem.
On a motion for summary judgment, claims of discrimination under Title VII and the NYSHRL are analyzed using the three-step burden-shifting framework articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 441 U.S. 792 (1973). See Villetti v. Guidepoint Glob. LLC, No. 21-2059-CV, 2022 WL 2525662, at *2 (2d Cir. July 7, 2022) (citing Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 74-75 (2d Cir. 2016)). In the first step of this framework, the employee bears the burden of setting forth evidence sufficient to support a prima facie case of either discrimination or retaliation. See McDonnell Douglas, 411 U.S. at 802. To make out a prima facie case for discrimination, a plaintiff must show “(1) that she is a member of a protected class; (2) that she was qualified for employment in the position; (3) that she suffered an adverse employment action; and . . . (4) some minimal evidence suggesting an inference that the employer acted with discriminatory motivation . . ..” See Littlejohn v. City of New York, 795 F.3d 297, 307 (2d Cir. 2015).
If the plaintiff is able to establish a prima facie case, the burden then “shifts to the defendant to persuade the court by a preponderance of the evidence that legitimate, nondiscriminatory reasons for the challenged employment action existed.” Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 250 (1981). At this step, however, a defendant “need not persuade the court that it was actually motivated by the proffered reasons.” Id. at 254.
Finally, if the defendant proffers such a reason, “the burden shifts back to the plaintiff to demonstrate by competent evidence that ‘the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.'” Patterson v. County of Oneida, 375 F.3d 206, 221 (2d Cir. 2004) (quoting Burdine, 450 U.S. at 253). Accordingly, to defeat a motion for summary judgment, a plaintiff is required to produce “not simply some evidence, but sufficient evidence to support a rational finding that the legitimate nondiscriminatory reasons proffered by the defendant were false, and that more likely than not discrimination was the real reason for the employment action.” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (emphasis added, internal quotation marks omitted).
In determining whether the articulated reason for the action is a pretext, a court “need not, and indeed should not, evaluate whether a defendant's stated purpose is unwise or unreasonable.” DeMarco v. Holy Cross High Sch., 4 F.3d 166, 170-71 (2d Cir. 1993). “Rather, the inquiry is directed toward determining whether the articulated purpose is the actual purpose for the challenged employment-related action.” Id.
Defendants argue that Plaintiff cannot establish a prima facie case of discrimination because, other than his termination, he has not alleged an adverse employment action and, with respect to his termination, he has not adduced evidence to show that he was discharged under circumstances giving rise to an inference of discrimination. (Defs.' Mem. at 4-10.) Defendants further argue that, even assuming Plaintiff can establish a prima facie case, he has not produced evidence capable of carrying the burden of persuasion at step three that, in view of Defendants' proffered legitimate nondiscriminatory reasons, his termination was, at least in part, motivated by discrimination. (Id. at 14-17.) The Court first considers Plaintiff's claim that he was terminated based on his gender and then considers his remaining disparate treatment claims.
A. Plaintiff's Discriminatory Discharge Claim
With respect to Plaintiff's discriminatory discharge claim, Defendants do not dispute that Plaintiff has satisfied the first three elements of his prima facie case, but argue that Plaintiff has failed to adduce evidence to show that his discharge occurred under circumstances giving rise to an inference of discrimination. (Defs.' Mem. at 8.) Plaintiff argues that JMA “went on a witch-hunt to manufacture complaints against him by female employees because Ms. Milbes considered his resistance to her openly discriminatory and offensive suggestion [that Plaintiff not be listed as the author of the article] to be bullying.” (Pl.'s' Opp. Mem. at 11.) Plaintiff further argues that he can point to evidence in the record that Defendants Nguyen, Janis and Milbes made negative comments that stereotype and demean men generally, as well as Plaintiff specifically, and that the fact that Nguyen and Janis asked male applicants to make an affirmation about being able to work well under the supervision of women was evidence of bias against men. (See id.) Given that Plaintiff's hurdle is low, i.e., that Plaintiff need only put forth “minimal evidence of discriminatory animus,” see Littlejohn, 795 F.3d at 307, the Court will assume for purposes of its analysis that Plaintiff has shown a prima facie case.
Milbes's Goggle Hangout message to Plaintiff actually did not ask him to remove his name from the article, but rather asked him for his thoughts. Her message stated: “So sorry this is coming up at the last minute but I just spoke with [S]ophia [Reuss] and [I]'m wondering if we will get backlash from having you publish the piece given that you're a man talking about a sexual harassment and women in the workplace. . .. I definitely want to think of other pieces we can write and publish under your name this year as part of our 2019 goals but I don't think this is the right fit. What do you think? . . ..” (See 1/15/19 Message.) Then, notwithstanding his angry, emotional outburst towards the junior staff in JMA's New York office after he received the message from Milbes (see Am. Compl. ¶ 106; Khwaja Dep. Tr. at 216), and notwithstanding Plaintiff telling Milbes how deeply offended he was (see Milbes Decl. ¶ 26), Plaintiff responded to Milbes that she should “put [S]ophia [Reuss] and [L]orelei [Christie]'s name on [the article].” (See 1/15/19 Message.) Nevertheless, Milbes “went ahead and published the article under [Plaintiff's] name.” (See Milbes Decl. ¶ 27.)
At the second step of the McDonnell Douglas framework, Defendants have presented evidence that the precipitating factor for Plaintiff's termination was his “verbal attack and bullying of junior staff” during the January 15, 2019 incident and that that “resulted in an investigation” that surfaced the “serious issues” regarding Plaintiff's treatment of junior staff at JMA (see 2/6/19 Termination Letter at 1) that is corroborated by the sworn testimony of that junior staff. (See, e.g., footnote 11, supra.) Thus, Defendants have “persuade[d] the court by a preponderance of the evidence that legitimate, nondiscriminatory reasons for the [Plaintiff's termination] existed.” Burdine, 450 U.S. at 250. Plaintiff does not appear to dispute that Defendants have offered legitimate nondiscriminatory reasons for his termination. (See Pl.'s Opp. Mem. at 15.) Instead, Plaintiff contends that Defendants' claims that they fired him for bullying and performance issues were mere pretext for discrimination. Turning to the third McDonnell Douglas step, the Court finds that Plaintiff has failed to put forth “sufficient evidence to support a rational finding that the legitimate nondiscriminatory reasons proffered by [Defendants] were false, and that more likely than not discrimination was the real reason for the employment action.” See Weinstock, 224 F.3d at 42.
Indeed, as set forth above, Plaintiff admits that he had an angry, emotional outburst in the presence of Christie and Reuss on January 15, 2019 (see Am. Compl. ¶ 106; Khwaja Dep. Tr. at 216), and that their accounts of the incident reflect that Plaintiff's anger was directed at them. (See Christie Dep. Tr. at 43 (Plaintiff “point[ed] a finger in [her] face” and spoke in “an angry tone” with “an elevated voice level”); Reuss Dep. Tr. at 124 (Plaintiff “started yelling at [her], and sort of had this very angry, like, full of rage outburst”).)
Plaintiff argues that “the allegations of bullying were clearly coordinated by Ms. Milbes after Plaintiff confronted her stating that it was inappropriate for him to be the main author for the piece” and states that certain of Defendants' statements, such that he made an employee cry and talked with coworkers about his sex life, were false. (Pl.'s Opp. Mem. at 15.) However, Plaintiff admittedly had an angry, emotional outburst on the day of the January 15, 2019 incident in the presence of junior staff and, buttressed by the accounts of the junior staff members, such conduct surely can be characterized as bullying. Thus, the Court finds that Plaintiff has not put forth sufficient evidence to support a rational finding that Milbes somehow “coordinated” the allegations made by junior staff about Plaintiff's bullying, as Plaintiff contends. See Dickens v. Hudson Sheraton Corp., 167 F.Supp.3d 499, 510 (S.D.N.Y. 2016) (“[W]hen an employer provides convincing evidence to explain its conduct and the plaintiff's argument consists of purely conclusory allegations of discrimination . . . the Court may conclude that no material issue of fact exists.”).
In any event, even if Plaintiff could establish some reason to doubt the accuracy of Defendants' conclusion that he engaged in bullying, it is not the truth of the allegations, but what motivated Defendants in terminating him that is significant. See Owens v. Centene Corp. & Centene Management Co. LLC, No. 20-CV-00118 (EK) (RLM), 2022 WL 4641129, at *8 (E.D.N.Y. Sept. 30, 2022) (citing Kolesnikow v. Hudson Valley Hosp. Ctr., 622 F.Supp.2d 98, 111 (S.D.N.Y. 2009) (“Where a plaintiff has been terminated for misconduct, the question is not whether the employer reached a correct conclusion in attributing fault to the plaintiff, but whether the employer made a good-faith business determination.”); McPherson v. N.Y.C. Dep't of Educ., 457 F.3d 211, 216 (2d Cir. 2006) (“In a discrimination case . . . we are decidedly not interested in the truth of the allegations against plaintiff. We are interested in what motivated the employer.”)).
In addition to failing to set forth sufficient evidence to support a rational finding that the legitimate nondiscriminatory reasons proffered by Defendants were false, Plaintiff has not adduced evidence that more likely than not discrimination was the real reason for his termination. Plaintiff points to his other allegations of disparate treatment as evidence of discriminatory intent, as well as evidence of negative comments that he asserts is evidence of bias. (See Pl.'s Opp. Mem. at 12.) “A plaintiff may show discriminatory motive by pointing to actions or remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus, as well as preferential treatment given to employees outside the protected class.” Pattanayak v. Mastercard Inc., No. 21-CV-02657 (GBD), 2022 WL 564047, at *7 (S.D.N.Y. Feb. 24, 2022). Moreover, the Court is mindful that “[a] plaintiff's evidence at the third step of the McDonnell Douglas analysis must be viewed as a whole rather than in a piecemeal fashion.” Walsh v. New York City Hous. Auth., 828 F.3d 70, 76 (2d Cir. 2016). Nonetheless, as set forth in Discussion Section I(B) below, the Court finds that Plaintiff has not adduced evidence that any of Plaintiff's other allegations of disparate treatment were discriminatory based on gender. Thus, they do not shed light on or bolster his claims that he was treated differently because of his gender.
See also Vega, 801 F.3d at 88 (“Vega's other allegations of discrimination, even if they do not independently constitute adverse employment actions, provide ‘relevant background evidence' by shedding light on Defendant's motivation and thus bolster his claim that Defendants treated him differently because of his ethnicity.”) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)).
Plaintiff also argues that Nguyen, Janis and Milbes made negative comments that stereotype and demean men generally, as well as Plaintiff specifically, and that the fact that Nguyen and Janis asked male applicants to make an affirmation about being able to work well under the supervision of women was evidence of bias against men. (Pl.'s' Opp. Mem. at 12; see also Pl.'s 56.1 Resp. ¶¶ 100, 105-07; Pl.'s Decl. ¶ 9.) However, even if Plaintiff could cite to admissible evidence of these remarks, see Teachey v. Equinox Holdings Inc., No. 18-CV-10740 (LJL), 2022 WL 1125279, at *7 (S.D.N.Y. Apr. 14, 2022) (“The non-moving party ‘cannot defeat the motion by relying on the allegations in [its] pleading, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible.'”) (quoting Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996)), the Second Circuit repeatedly has held “that stray remarks of a decision-maker, without more, cannot prove a claim of employment discrimination.” Schneider v. Wal-Mart Stores, Inc., No. 16-CV-02010 (NSR), 2019 WL 294309, at *6 (S.D.N.Y. Jan. 23, 2019) (citing Adams v. Master Carvers of Jamestown, Ltd., 91 Fed.Appx. 718, 722 (2d Cir. 2004)); see also Yagudaev v. Credit Agricole Am. Servs., Inc., No. 18-CV-00513 (PAE), 2020 WL 583929, at *12 (S.D.N.Y. Feb. 5, 2020) (citing cases).
“In determining whether a comment is a probative statement that evidences an intent to discriminate or whether it is a non-probative ‘stray remark,' a court should consider the following factors: (1) who made the remark, i.e., a decisionmaker, a supervisor, or a low-level co-worker; (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark, i.e., whether a reasonable juror could view the remark as discriminatory; and (4) the context in which the remark was made, i.e., whether it was related to the decisionmaking process.” Gittens-Bridges v. City of New York, No. 19-CV-00272 (ER), 2022 WL 954462, at *16 (S.D.N.Y. Mar. 30, 2022) (citing Schreiber v. Worldco, LLC, 324 F.Supp.2d 512, 519 (S.D.N.Y. 2004)).
Here, Plaintiff has not established that the alleged remarks are probative of discrimination. For example, Plaintiff has not demonstrated any nexus between the alleged comments and his termination. Further, even if it could be argued that Plaintiff has presented some evidence of pretext, the record, taken as a whole, does not permit a reasonable trier of fact to find that “the most likely alternative explanation” for his termination was gender discrimination. See Palencar v. New York Power Auth., 834 Fed.Appx. 647, 651 (2d Cir. 2020) (citing Reeves, 530 U.S. at 147); see also Ya-Chen Chen v. City Univ. of New York, 805 F.3d 59, 74 (2d Cir. 2015). Accordingly, I recommend that Defendants' motion for summary judgment be granted as to Plaintiff's Title VII and NYSHRL claims relating to his termination.
B. Plaintiff's Other Allegations Of Disparate Treatment
Plaintiff also argues that he was discriminated against because of his gender in other ways, including that he was denied the same amount of paid parental leave; that he was paid less than a similarly situated female employee; that he was denied a request to depart from the salary scale; and that JMA “offered more support to female directors than to him.” (See Pl.'s 9/9/22 Opp. Mem. at 5, 11-12.) To the extent Plaintiff raises these as separate claims, the Court recommends that Defendants' motion for summary judgment be granted.
The Court previously held that Plaintiff did not state a gender discrimination claim based upon the denial of parental leave. See Khwaja v. Jobs to Move Am., No. 19-CV-07070 (GBD) (SDA), 2019 WL 9362542, at *10 (S.D.N.Y. Nov. 13, 2019), report and recommendation adopted, 2020 WL 1922373 (S.D.N.Y. Apr. 21, 2020) (“JMA followed the provisions of its handbook in applying its policies to Plaintiff. As set forth earlier, Plaintiff did not qualify for paid leave under JMA's handbook because he had not worked for JMA at least 12 months.”). At the summary judgment stage, Plaintiff has not adduced any evidence that Defendants' decisions related to his parental leave were motivated by discriminatory intent, rather than in compliance with their stated policies set forth in the handbook.
Plaintiff also argues that he was discriminated against because he was paid less than a female employee and denied his request to depart from the salary scale. (See Pl.'s 9/9/22 Opp. Mem. at 11-12.) However, in dismissing Plaintiff's claims under the federal Equal Pay Act (“EPA”) and the New York Equal Pay Law (“EPL”), the Court previously held that “Plaintiff alleges no fact to undermine the plausibility of a straightforward explanation for the $2,000 differential between his salary and that of his [female] California counterpart.” See Khwaja v. Jobs to Move Am., No. 19-CV-07070 (JPC) (SDA), 2021 WL 4927140, at *5 (S.D.N.Y. Mar. 26, 2021), report and recommendation adopted, 2021 WL 3911290 (S.D.N.Y. Sept. 1, 2021). To the extent Plaintiff now tries to dress up his EPA and EPL claims as gender discrimination claims, they fail for the same reason. To assert a Title VII claim based upon pay discrimination, Plaintiff must plausibly allege that JMA “discriminated against [him] with respect to [his] compensation because of [his] sex.” Lenzi v. Systemax, Inc., 944 F.3d 97, 103 (2d Cir. 2019) (quoting 42 U.S.C. § 2000e-2(a)(1)) (internal quotation marks and alterations omitted). The requirements for pleading such a claim are “generally the same” as those under the EPA, except that the Title VII plaintiff “must also produce evidence of discriminatory animus.” Belfi v. Prendergast, 191 F.3d 129, 139 (2d Cir. 1999) (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995)). Again, Plaintiff has adduced no evidence to show that JMA was motivated by discriminatory intent rather than the proffered explanation.
Plaintiff vaguely argues that JMA “offered more support to female directors than to him.” (See Pl.'s 9/9/22 Opp. Mem. at 12.) This vague allegation does not rise to the level of an adverse employment action. The Second Circuit defines an adverse employment action as a “‘materially adverse change' in the terms and conditions of employment.” Sanders v. New York City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004) (citation omitted). “To be materially adverse, a change in working conditions must be ‘more disruptive than a mere inconvenience or an alteration of job responsibilities.'” Id. (citation omitted). “Examples of such a change 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. (citation omitted).
Regardless, even assuming that Plaintiff could show that he suffered an adverse employment action based on receiving less support than a female director, Plaintiff has not put forth evidence, other than his conclusory assertions, that any differential treatment of Plaintiff by Defendants was motivated by his gender. See Lizardo v. Denny's Inc., 270 F.3d 94, 104 (2d Cir. 2001) (to survive summary judgment plaintiffs must do “more than cite to their mistreatment and ask the court to conclude that it must have been related to their [protected characteristic].”). Thus, I find that Plaintiff has not set forth a prima facie case of gender discrimination with respect to actions taken by Defendants that were not related to Plaintiff's termination. See Villetti, 2022 WL 2525662, at *3 (“Although a plaintiff's burden at the prima facie stage is not onerous, a plaintiff cannot establish a prima facie case with only purely conclusory allegations of discrimination, absent any concrete particulars[.]”) (internal citations and quotation marks omitted).
Since Plaintiff's NYSHRL discrimination claims against Defendants are subject to dismissal, his aiding and abetting discrimination claims against Defendants Janis and Nguyen also are subject to dismissal. See Jain v. McGrawHill Cos., Inc., 827 F.Supp.2d 272, 277 (S.D.N.Y. 2011), aff'd, 506 Fed.Appx. 47 (2d Cir. 2012) (“[T]he NYSHRL . . . require[s] that liability must first be established as to the employer/principal before accessorial liability can be found as to an alleged aider and abettor.”).
II. Title VII And NYSHRL Gender-Based Retaliation Claims
As with the disparate treatment claims, retaliation claims are evaluated under the McDonnell Douglas burden-shifting framework. See Ya-Chen Chen, 805 F.3d at 70. To make out a prima facie case of retaliation under Title VII or the NYSHRL, “a plaintiff must present evidence that shows (1) participation in a protected activity; (2) that [his employer] knew of the protected activity; (3) an adverse employment action; and (4) a causal connection exists between the protected activity and the adverse employment action.” Littlejohn, 795 F.3d at 315-16 (internal quotation marks omitted) (quoting Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010)). “This showing creates a ‘presumption of retaliation,' which the defendant may rebut by ‘articulat[ing] a legitimate, non-retaliatory reason for the adverse employment action.'” Ya-Chen Chen, 805 F.3d 59 at 70 (quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005)). “If the defendant provides such an explanation, the presumption of retaliation dissipates, and the plaintiff must prove that the desire to retaliate was the but-for cause of the challenged employment action.” Id. (citations omitted).
“A plaintiff engages in ‘protected activity' when she (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.” Bundschuh v. Inn on the Lake Hudson Hotels, LLC, 914 F.Supp.2d 395, 405 (W.D.N.Y. 2012) (citing 42 U.S.C. § 2000e-3(a)). “[I]n order to constitute a protected activity for purposes of a retaliation claim, the complaint must be related to discrimination on a basis prohibited by Title VII.” Bennett v. Hofstra Univ., 842 F.Supp.2d 489, 500 (E.D.N.Y. 2012).
Defendants argue that Plaintiff cannot show that he engaged in protected activity known to JMA; cannot establish a nexus between his complaints and his termination; and cannot rebut Defendants' legitimate nonretaliatory reasons for his termination. (Defs.' Mem. at 11-17.) Defendants also argue that any claim for retaliatory harassment fails as a matter of law. (Id. at 13.)
Plaintiff's opposition memorandum raises a number of ways in which he contends he engaged in protected activity. First, he argues that Defendants terminated his employment after he challenged Milbes for asking him to remove his name from the article about sexual harassment because he was a man. (Pl.'s Opp. Mem. at 2.) Next, Plaintiff argues that he “made protected complaints about being treated differently because he was a man” in May 2018 in response to Milbes “refusing to provide communications support for a New York event at the very last minute despite making a commitment.” (See Pl.'s 9/9/22 Opp. Mem. at 18.) Third, Plaintiff argues that he made unspecified “additional complaints as his work responsibilities were increased, his leave under New York State law was interfered with, and he was denied compensation for attending a professional CLE despite the clear advantages to Defendant JMA's work.” (See Pl.'s 9/9/22 Opp. Mem. at 18.) Fourth, Plaintiff argues that “[d]uring a staff meeting in October 2018, he advocated for increased [sexual harassment] training because of the homogenous nature of Defendant JMA's staff.” (See Pl.'s 9/9/22 Opp. Mem. at 18; see also Am. Compl. ¶ 80 (referring to “New York State law requiring employers to develop a written sexual harassment policy and to train staff on that policy”).)
To the extent Defendants discuss other allegations in their memorandum that Plaintiff does not address, the Court does not consider them. Although the Court considers the evidence in the record in the light most favorable to Plaintiff, “judges are not like pigs hunting for truffles buried in the record” and the Court “is not obliged to sift through a large court record against the possibility that it will find something to warrant denial of the motion that the non-moving party has not bothered to call to its attention.” Morisseau v. DLA Piper, 532 F.Supp.2d 595, 618 (S.D.N.Y. 2008) (citing Albrechsten v. Bd. Of Regents of Univ. of Wis. Sys., 309 F.3d 433, 436 (7th Cir. 2002)).
At around this time, after Plaintiff complained to Nguyen about Milbes, Nguyen held a mediated conversation with Milbes and Plaintiff. (Nguyen Decl. ¶ 38; Milbes Decl. ¶¶ 7-10.) Plaintiff admits that, after the mediated conversation, Nguyen determined that Milbes had not behaved uncollegially or inappropriately towards Plaintiff. (Defs.' 56.1 ¶ 39; Pl.'s 56.1 Resp. ¶ 39.) Plaintiff further admits that Nguyen felt that Plaintiff was upset because he did not get exactly what he wanted when he wanted it. (Id.) Nevertheless, because Plaintiff had made complaints about communications support, Milbes and JMA decided to hire a communications staff person based in New York, i.e., Reuss. (See Milbes Decl. ¶ 13; Nguyen Decl. ¶ 41.) Although Plaintiff states in his response to Defendants' 56.1 Statement that Reuss “was hired to support other teams as well” (Pl.'s 56.1 Resp. ¶ 41), Plaintiff does not dispute that Reuss was hired in part to support Plaintiff.
Defendants submitted in support of their summary judgment motion contemporaneous notes from a staff meeting held at JMA on October 25, 2018, which Plaintiff attended. (See Janis Decl. ¶ 60 & Ex. E.) Those notes state that, under New York State law, “[t]he [sexual harassment] training has to be done sometime end of next year [i.e., 2019]” and that “[e]veryone should get harassment training!!!” (Janis Decl. Ex. E, at ECF No. 112-4, at PDF p. 4.)
The Court finds that Plaintiff's first, third and fourth complaints do not constitute protected activity. Plaintiff's alleged challenge to Milbes's suggestion regarding authorship was not protected activity. Although Plaintiff reacted angrily, rather than oppose Milbes's suggestion as gender discrimination, Plaintiff told Milbes to put Reuss's and Christie's names on the article. (See 1/15/19 Message.) Moreover, Plaintiff has not demonstrated that his unspecified complaints regarding, inter alia, his work responsibilities, as well as Plaintiff's alleged advocacy for increased training, opposed an employment practice prohibited under Title VII. See Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 108 (2d Cir. 2011) (protected activity to support retaliation claim must involve complaints that are not generalized, but rather complaints that the employer could reasonably understand involves conduct prohibited by Title VII). Plaintiff's second complaint, regarding receiving less support from Milbes because he was a man, may constitute protected activity. However, Plaintiff has not shown any causal connection between this complaint and his termination, approximately eight months later. Although “[t]he Second Circuit “has not imposed a strict time limitation when a retaliation claim relies exclusively on temporal proximity . . . ‘a gap of more than several months is typically too long by itself to survive summary judgment.'” Joyce v. Remark Holdings, Inc., No. 19-CV-06244 (DLC), 2022 WL 179839, at *4 (S.D.N.Y. Jan. 20, 2022) (citing Agosto v. New York City Dep't of Educ., 982 F.3d 86, 104 (2d Cir. 2020)).
To the extent that Plaintiff now raises a claim for retaliatory harassment (see Pl.'s Opp. Mem. at 17-18), the Court finds that he has not presented evidence that “the incidents of harassment following complaints were sufficiently continuous or concerted to have altered the conditions of [his] employment.” Small v. Garland, No. 18-CV-05659 (BCM), 2021 WL 1226979, at *17 (S.D.N.Y. Mar. 31, 2021); see also Torres v. Pisano, 116 F.3d 625, 640 (2d Cir. 1997).
In any event, even assuming Plaintiff has set forth a prima facie case of retaliation, the Court finds that, as with his discrimination claims, he has not adduced evidence that, in view of Defendant's proffered reasons for his termination, the desire to retaliate was the but-for cause of his termination. To the extent that Plaintiff attempts to rely on temporal proximity, even if that were sufficient at the prima facie stage, the Second Circuit has “long held that temporal proximity between a protected complaint and an adverse employment action is insufficient to satisfy [plaintiff's] burden to bring forward some evidence of pretext.” Ya-Chen Chen, 805 F.3d at 72 (citing El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010)); see also Bourara v. New York Hotel Trades Council & Hotel Ass'n of New York City, Inc., Emp. Benefit Funds, No. 20-CV-03092, 2021 WL 4851384, at *2 (2d Cir. Oct. 19, 2021). As for other evidence of animus, Plaintiff argues that the record shows “an escalating chain of retaliatory acts” after he resisted Milbes's attempt to remove his name from the article on sexual harassment and that Nguyen and Janis were responsible for “most if not all of the concerns laid out in the termination letter.” (Pl.'s Mem. at 19.) Plaintiff essentially argues that Milbes, Nguyen and Janis set him up to respond in an angry way. However, as set forth above in the context of Plaintiff's discrimination claims, the Court finds that Plaintiff's conclusory allegations that he was set up do not constitute sufficient evidence to support a rational finding that retaliation was the true reason for his termination. Accordingly, Plaintiff's retaliation claims under Title VII and the NYSHRL should be dismissed.
Since Plaintiff's NYSHRL retaliation claims against Defendants are subject to dismissal, his aiding and abetting retaliation claims against Defendants Janis and Nguyen also are subject to dismissal. See Jain, 827 F.Supp.2d at 277.
III. NYCHRL Discrimination And Retaliation Claims
Plaintiff's claims under the NYCHRL must be addressed separately. “[C]ourts must analyze NYCHRL claims separately and independently from any federal and state law claims . . ., construing the NYCHRL's provisions “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (citations omitted). “[I]n 2005, the New York City Council amended the [NYCHRL] to emphasize that ‘interpretations of state and federal civil rights statutes can serve only as a floor below which the [NYCHRL] cannot fall' and that the NYCHRL should ‘be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof.'” Ya-Chen, 805 F.3d at 75 (citing Mihalik, 715 F.3d at 109). Under the NYCHRL, a plaintiff need only prove “by a preponderance of the evidence that she has been treated less well than other employees because of her gender.” Mihalik, 715 F.3d at 110 (citing Williams v. N.Y.C. Hous. Auth., 61 A.D.3d 62, 78 (1st Dep't 2009)). "At the summary judgment stage, judgment should normally be denied to a defendant if there exist triable issues of fact as to whether such conduct occurred.” Williams, 61 A.D.3d at 78.
“New York courts . . . have approached discrimination and retaliation claims [under the NYCHRL] under a similar framework.” Ya-Chen Chen, 805 F.3d at 75. “In both situations, the plaintiff must establish a prima facie case, and the defendant then has the opportunity to offer legitimate reasons for its actions.” Id. at 75-76 (citing Bennett v. Health Mgmt. Sys., 92 A.D.3d 29 (1st Dep't 2011)). “If the defendant satisfies that burden, summary judgment is appropriate if no reasonable jury could conclude either that the defendant's reasons were pretextual, or that the defendant's stated reasons were not its sole basis for taking action, and that its conduct was based at least in part on discrimination. Id. at 76 (cleaned up) (citations omitted). “In other words, summary judgment is appropriate if the record establishes as a matter of law that discrimination or retaliation play[ed] no role in the defendant's actions.” Id. (cleaned up) (citations omitted). “The NYCHRL is ‘not a general civility code,' and ‘[t]he plaintiff still bears the burden of showing that the conduct is caused by a discriminatory motive' and ‘that she has been treated less well at least in part because of [a protected characteristic.]'” Gueye v. People's United Bank, Nat'l Ass'n, No. 21-1250, 2022 WL 2203953, at *3 (2d Cir. June 21, 2022) (quoting Mihalik, 715 F.3d at 110)).
The Court notes that the NYCHRL's retaliation standard is broader and “[r]ather than requiring a plaintiff to show an adverse employment action, the NYCHRL only requires [him] to show that something happened that was reasonably likely to deter a person from engaging in protected activity.” Nowlin v. Mount Sinai Health Sys., No. 20-CV-02470 (JPC), 2022 WL 992829, at *16 (S.D.N.Y. Mar. 31, 2022). In addition, “the plaintiff need not show but-for causation, only that retaliation played any part in the employer's decision.” Id. (internal quotation marks omitted).
Viewed through the foregoing lens, the Court finds that Plaintiff has not adduced any evidence that either discrimination or retaliation played a role in Defendants' actions. Plaintiff's termination was precipitated by his admittedly angry, emotional outburst on January 15, 2019, which resulted in an investigation into his workplace conduct that uncovered corroborated instances of bullying behavior by Plaintiff. Plaintiff has adduced no evidence that he was treated less well because of his gender. Indeed, even with respect to the article that precipitated the events that led to Plaintiff's termination, Defendants decided not to remove Plaintiff's name from the article.
In addition, as set forth above, although Plaintiff challenges Defendants' findings regarding his behavior, he has not adduced evidence that the proffered reasons for his termination were pretextual. “Antidiscrimination laws like the NYCHRL are designed to prohibit adverse employment actions based in discrimination, not to police the accuracy of other (non-discriminatory) bases for termination.” Owens, 2022 WL 4641129, at *8 (citing Ya-Chen Chen, 805 F.3d at 76 (“Even under the NYCHRL, the mere fact that a plaintiff may disagree and think that her behavior was justified does not raise an inference of pretext.”)). Nor has plaintiff adduced evidence that retaliation played a role in his termination.
Accordingly, even under the more lenient NYCHRL standards, the Court recommends that Defendants' motion for summary judgment be granted with respect to Plaintiff's discrimination and retaliation claims. Accord Stratton v. Ernst & Young, LLP, No. 15-CV-01047, 2016 WL 6310772, at *7 (S.D.N.Y. Oct. 27, 2016) (“[E]ven under NYCHRL's more liberal standard, when a plaintiff offers no evidence to rebut a defendant's non-discriminatory explanation, the claim fails.” (citing St. Jean v. United Parcel Serv. Gen. Serv. Co., 509 Fed.Appx. 90, 91 (2d Cir. 2013)).
IV. Defendants' Request For Sanctions
In their September 9, 2022 Letter Motion, Defendants seek sanctions against Plaintiff, including dismissal of this case, based upon his failure to meet the deadlines set by the Court to oppose Defendants' summary judgment motion. (See Defs.' 9/9/22 Ltr. Mot. at 2.) Defendants base their request on Rules 16(f), 37(b) and 41(b) of the Federal Rules of Civil Procedure. (See id.)
The Court has discretion in determining whether a plaintiff's claims should be dismissed for failure to prosecute or failure to comply with a court order. See Colon v. Mack, 56 F.3d 5, 7 (2d Cir. 1995) (failure to prosecute under Fed.R.Civ.P. 41(b)); Neufeld v. Neufeld, 172 F.R.D. 115, 116, 118 (S.D.N.Y. 1997) (failure to comply with court order under Fed.R.Civ.P. 16(f)). The Second Circuit has “repeatedly emphasized” that “dismissal is a harsh remedy to be utilized only in extreme situations.” Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993). Where the dismissal is with prejudice, it should be used only upon a finding “of willfulness, bad faith, or reasonably serious fault.” Mitchell v. Lyons Prof'l Servs. Inc., 708 F.3d 463, 467 (2d Cir. 2013) (citation omitted). Indeed, the dismissal “must be supported by clear evidence of misconduct.” Id. The Court finds that imposing a sanction of dismissal is not appropriate here. Imposing a sanction of dismissal is particularly inappropriate, given that the Court is recommending dismissal on the merits.
Rule 37(b) has no application here since that Rule involves failure to abide by a discovery-related court order. See Fed. R. Civ. P. 37(b).
In addition, although the Court does not condone Plaintiff's failure to abide by the deadlines set in Court Orders, particularly since Plaintiff is an admitted attorney, the Court in its discretion declines to impose lesser sanctions. Plaintiff's opposition papers were filed only 2 to 3 days late and Defendants suffered no prejudice as a result of the late filings.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Defendants' motion for summary judgment be GRANTED and that this action be dismissed. I further recommend that Defendants' request for sanctions be DENIED. Because the Court finds that oral argument is not necessary for it to make its recommendations herein, the Court DENIES Defendants' request for oral argument filed at ECF No. 117.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Cronan.
THE FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).