Opinion
1:20-cv-07631 (GBD) (SDA)
09-01-2022
Derrick Polite, Plaintiff, v. VIP Community Services, Defendant.
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE:
Before the Court is a motion for summary judgment by Defendant Vocational Instruction Project Community Services, Inc., s/h/a VIP Community Services (“Defendant” or “VIP”), seeking to dismiss the Second Amended Complaint of Plaintiff Derrick Polite (“Plaintiff” or “Polite”) in this case. (Def.'s Not. of Mot., ECF No. 44.)
In making its recommendations herein, the Court has considered Defendant's memorandum of law (Def.'s Mem., ECF No. 49); the Affirmation of Jeffrey Spiegel, Esq. (Speigel Aff., ECF No. 45); Defendant's Statement of Undisputed Facts Pursuant to Local Rule 56.1 (Def.'s 56.1 Stmt., ECF No. 50); the Declarations of Yerlina Dominguez (Dominguez Decl., ECF No. 46), Inez Sieben (Sieben Decl., ECF No. 47) and Tabitha Gaffney (Gaffney Decl., ECF No. 48); Plaintiff's letter in opposition to Defendant's motion (Pl.'s Opp., ECF No. 53); and Defendant's reply memorandum. (Def.'s Reply, ECF No. 54.)
For the reasons set forth below, I respectfully recommend that Defendant's motion for summary judgment be GRANTED.
The facts below are derived from the paragraphs contained in Defendant's Rule 56.1 Statement (each of which is supported by citations to record evidence). (See Def.'s 56.1 Stmt. ¶¶ 1-101.) As explained in the Procedural History section, infra, Plaintiff in his opposition does not specifically controvert the paragraphs contained in Defendant's Rule 56.1 Statement. (See Pl.'s Opp.) Under Local Civil Rule 56.1, “[e]ach numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party.” See Local Civil Rule 56.1(e).
I. Background Facts Regarding Polite's Employment At VIP
Polite was employed by VIP from July 16, 2018 to August 28, 2019. (Def.'s 56.1 Stmt. ¶ 1.) VIP is a non-profit organization which provides numerous medical, behavioral health and housing services to the Bronx community. (Id. ¶ 2.) VIP operates various clinics and facilities, including the Ryan White Clinic, which provides mental health services to people who have been exposed to HIV, are at risk of becoming infected or are suffering from mental illness. (Id.) Polite was employed as a Clinical Director at the Ryan White Clinic and received an annual salary of $75,000. (Id. ¶ 3.)
Raymundo Fermin (“Fermin”), the former clinical director, first reached out to Polite to fill a social worker position when Fermin saw Polite's resume online on the Indeed website. (Def.'s 56.1 Stmt. ¶ 4.) During Fermin's interview with Polite, Fermin told Polite that Fermin helped design the program and the delivery of services, and that Fermin subsequently would train Polite in the role and the duties of going out in the field into nursing homes to provide individual services for patients confined to such homes. (Id. ¶ 5.) On June 1, 2018, Fermin left his employment at VIP. (Id. ¶ 6.)
Polite's second interview at VIP was with Alison Maling (“Maling”), who was a Program Director at the Ryan White Clinic. (Def.'s 56.1 Stmt. ¶¶ 7, 12.) She offered Polite the clinical director position, and not the social worker position, because Fermin had left VIP. (Id.) This was Polite's first experience as a director. (Id. ¶ 8.) While employed by VIP, Polite's supervisor was Maling. (Id. ¶ 12.)
On his first day of employment, Polite received and signed VIP's employee handbook.(Def.'s 56.1 Stmt. ¶ 13.) In December 2018, he received and signed a revised version of the employee handbook. (Id.) The employee handbook “expressly prohibits any form of employee harassment based on race, creed, marital status, color, sex, age” etc. and lays out a grievance procedure whereby employees subjected to, or who have witnessed, unfair treatment can find redress on behalf of themselves and others. (Id.)
It was VIP's customary practice to provide all its employees with this employee handbook. (Def.'s 56.1 Stmt. ¶ 16.)
The employee handbook makes it unlawful for employees who engage in protected activity from suffering an adverse employment action. (Def.'s 56.1 Stmt. ¶ 14.) Protected activity is defined as the making of a good faith complaint of discrimination or harassment. (Id.) The employee handbook states that “the retaliation provision is not intended to protect persons making intentionally false charges of harassment” and that “[d]isseminating information, verbally or in writing, that is untrue or malicious about other staff” constitutes “grounds for immediate discharge.” (Id. ¶ 15.)
VIP provided mandatory anti-sexual harassment training to all its newly-hired employees. (Def.'s 56.1 Stmt. ¶ 17.) This training was in person and interactive. (Id.) Polite attended one such training which took an entire day, from 9:00 a.m. to 4 p.m. (Id.) During such training, “they defined what inappropriate behavior, sexual harassment, looked like and the procedure to follow within the agency to report it.” (Id.)
VIP took sexual harassment very seriously, and it had a zero-tolerance policy with regard to sexual harassment. (Def.'s 56.1 Stmt. ¶ 19.) Employees were encouraged to bring forward sexual harassment complaints. (Id.)
As a Clinical Director, Polite managed the day-to-day operations of the program and supervised a small number of staff, including social workers. (Def.'s 56.1 Stmt. ¶ 9.) The social workers went out to two nursing homes in the area to provide mental health services and substance abuse services for HIV and AIDS patients. (Id.) One of the social workers Polite supervised was Angela Caban (“Caban”), who Polite had hired. (Id. ¶ 10.)
II. Complaints About Polite And Resolution Thereof
On November 13, 2018, Caban complained orally to Tabitha Gaffney (“Gaffney”), VIP's Chief Compliance Officer, about Polite's behavior in the workplace, including some allegedly insensitive and sexist remarks Polite had made towards Caban. (Def.'s 56.1 Stmt. ¶ 21.) Gaffney took notes of the discussion with Caban, which she later consolidated in writing and provided to Yerlina Dominguez (“Dominguez”), VIP's Human Resources (“HR”) Coordinator. (Id.) During the same discussion, Caban mentioned that Polite “says negative things about [Maling],” including “that bitch does not know what she is talking about,” and “speaks about her in an unethical manner in front of Lucie (colleague) and herself.” (Id.) Gaffney encouraged Caban “to go to HR Department immediately and report her concerns to the HR Director.” (Id.)
Also on November 13, 2018, Caban submitted a report to Dominguez wherein Caban described a number of issues she was having with Polite as her supervisor. (Def.'s 56.1 Stmt. ¶ 22.) Her report included disparaging comments Polite had made against Maling. (Id.) Specifically, according to Caban's report, on October 30, 2018, Polite, referring to Maling, had told Caban that “that b**** doesn't even know what she's talking about. I'll fix her.” (Id.) Also, according to Caban's report, on November 5, 2018, Polite engaged in “unethical and unprofessional talk about his supervisor in front of two social workers.” (Id.) The report was signed and dated by Caban. (Id.)
As soon as Dominguez received Caban's report, Dominguez began an investigation into Caban's allegations. (Def.'s 56.1 Stmt. ¶ 23.) The investigation included the conducting of interviews with Maling, Caban, Polite and two other employees, i.e., Lucie Toussaint (“Toussaint”) and Das Jacques. (Id.) Polite was given an opportunity to respond to Caban's allegations. (Id. ¶ 24.)
Inez Sieben (“Sieben”), who was at the time a consultant and later hired as a Chief Strategy Officer, also assisted with the investigation. (Def.'s 56.1 Stmt. ¶ 26.)
Karen Primack, VIP's HR Director, took the lead in interviewing Maling and Polite and put together a memorandum with her findings, which she presented to Dominguez. (Def.'s 56.1 Stmt. ¶ 25.) The memorandum noted, among other things, that Polite “never developed a consistent and collegial relationship with [Maling], his supervisor” and tried to undercut Maling in making important personnel decisions. (Id.)
Thereafter, Dominguez prepared a report containing summary of events and a proposed resolution. (Def.'s 56.1 Stmt. ¶ 27.) The resolution stated as follows:
After a review of everyone's statement and consulting with AM [Maling], it was decided that DP [Polite] would be placed on a 90-day performance improvement plan (PIP) that includes required trainings. The PIP provides detailed feedback and expectations about DP's communication style with staff and about how he is to involve his manager, AM, when disciplinary action might be needed of his staff.(Id.)
On January 14, 2019, Polite was placed on a PIP. (Def.'s 56.1 Stmt. ¶ 28.) The PIP, which was addressed to Polite, noted that “complaints have been made about the way you talk to and about staff, peers and supervisor as rude, hostile, not strengths-based and at times punitive, derogatory and gossip based.” (Id.) Polite was warned to “avoid saying disparaging things” and that “[g]ossip, as in divulging of personal information about one staff member to another, especially if potentially hurtful or harmful, will not be tolerated.” (Id.) Polite also was warned that failure to meet the expectations described in the PIP “will result in further disciplinary action, up to and including termination.” (Id.)
Prior to the PIP being issued, Polite was aware that he was going to be placed on a PIP and discussed the contents of the PIP with Sieben who assisted in preparing the document. (Def.'s 56.1 Stmt. ¶ 29.)
Polite did not protest being placed on a PIP and did not contest it. (Def.'s 56.1 Stmt. ¶ 31.) Polite “heard what their concerns were” and “agreed to sign and commit to the task at hand to improve [his] performance as the clinical director.” (Id. ¶ 30.)
III. Polite's Allegations About Maling And Resultant Termination
On August 12, 2019, Polite sent an email to Sieben and Gaffney claiming that two employees, Toussaint and Keisha Williams (“Williams”), had made complaints to him about being inappropriately touched by Maling and how this behavior made them feel uncomfortable. (Def.'s 56.1 Stmt. ¶ 33.) According to Polite's email, “on Friday August 2, 2019 during lunch time two employees came to [his] office to report [his] immediate supervisor [Maling] about her inappropriately touching them.” (Id.) Toussaint allegedly complained to Polite that “[Maling] took her hand and placed it on [Toussaint's] should[er] strap on [her] dress, this made [her] feel very uncomfortable.” (Id.) Williams also allegedly complained to Polite: “What is wrong with [Maling], why would she touch me like that on my shoulder then move her hands going down my back! Talking about my dress, I moved away from her!” (Id.) According to Polite's email, Polite told both employees that he intended to report these incidents and both employees agreed. (Id.)
On the same day, i.e., August 12, 2019, Sieben responded to Plaintiff's email thanking him for bringing the matter to their attention and letting him know that “HR will follow-up.” (Def.'s 56.1 Stmt. ¶ 34.) Sieben immediately discussed Polite's email with Dominguez. (Id. ¶ 35) Dominguez then promptly conducted an investigation as to the allegations made by Plaintiff. (Id.)
On August 12, 2019, Dominguez called Williams to her office for an interview where she showed her Polite's email and asked her questions about the allegations pertaining to her. (Def.'s 56.1 Stmt. ¶ 36.) Williams denied that Maling ever touched her inappropriately or in a sexual way and denied that Maling ever made her feel uncomfortable. (Id.) Williams also stated that she had “never told” Polite that she “was uncomfortable or that [she] want[ed] to report anything.” (Id.) Williams “stated that if she felt uncomfortable in any situation she would first approach the person involved or she would come to HR herself, she doesn't need anyone to voice her concerns.” (Id.) Williams also “want[ed] to know why [Polite] sent that email” and what “his intent [was] by doing this.” (Id.) Dominguez memorialized the statements Williams made and Williams signed the report stating, “I agree with the statement.” (Id.)
At the time when Polite sent his email complaining about Maling's alleged inappropriate behavior, Toussaint was on vacation. (Def.'s 56.1 Stmt. ¶ 37.) Dominguez interviewed Toussaint immediately upon her return, on August 23, 2019. (Id.) During the interview, Dominguez showed Toussaint Polite's email and asked her questions about the allegations pertaining to her. (Id. ¶ 38.) Toussaint denied the allegations Polite made in his email and affirmatively stated that Maling did not touch her inappropriately or make her feel uncomfortable. (Id.) Dominguez made a written note of this for the investigative file. (Id.)
Toussaint later prepared a written statement memorializing her interview with Dominguez which she executed and gave to Dominguez. (Def.'s 56.1 Stmt. ¶ 39.) In her written statement, Toussaint stated that “[Maling] did not make me feel uncomfortable nor did she touch me inappropriately” and that the “email that was sent by Derrick Polite” was sent “without [her] consent.” (Id.)
Based on the accounts of Williams and Toussaint, Dominguez arrived at the determination that Polite intentionally had fabricated these complaints against Maling. (Def.'s 56.1 Stmt. ¶ 40.) What was even more concerning to Dominguez was that this was not the first time that Polite made disparaging comments about Maling, and it became obvious to Dominguez that Polite disliked Maling and, even after having been placed on a PIP, his behavior towards Maling did not improve. (Id.) After a discussion between Dominguez and Sieben, they determined that the false allegations against Maling, coupled with Polite's prior documented conduct, was a pattern that warranted his termination. (Id. ¶ 41.)
On August 28, 2019, Dominguez and Sieben met with Polite and informed him of the results of the investigation into his August 12 email and that they had made the determination that he intentionally had fabricated allegations against Maling. (Def.'s 56.1 Stmt. ¶ 43.) For this reason, they informed him that his employment was terminated effective immediately. (Id.) Polite was given a letter stating that he was terminated effective immediately, along with an extract of the employment handbook stating that “[d]isseminating information, verbally or in writing, that is untrue or malicious about other staff, patients, consultants or anyone VIP may engage with” may lead to “immediate termination.” (Id. ¶ 44.)
IV. Compensation At VIP, Including Polite's Compensation
Maling, Plaintiff's supervisor, was the highest-compensated employee at the Ryan White Clinic. (Def.'s 56.1 Stmt. ¶ 58.) After Maling, Polite was the best-compensated employee at the Ryan White Clinic while he was there. (Id. ¶ 62.) Throughout the course of his employment, Polite was paid an annual salary of $75,000. (Id. ¶ 63.) Up until the last few weeks of his employment, Polite had raised no issues regarding his salary. (Id.) Throughout his employment, Polite never claimed that he was paid a lower salary due to his age. (Id. ¶ 69.)
Fermin, who was Polite's predecessor as a Clinical Director, and who was younger than Polite, was paid an annual salary of $80,000. (Def.'s 56.1 Stmt. ¶ 64.) However, Fermin and Polite had very different resumes and work experience. (Id. ¶ 73.) Fermin graduated magna cum laude from CUNY with a Bachelors in Forensic Psychology and then pursued a Masters in Social Work from Fordham University, was a Licensed Masters Social Worker and a Credentialed Alcoholism and Substance Abuse Counselor, and belonged to the Psi-Chi National Honor Society, the largest honor society in psychology. (Id. ¶ 79.) Fermin had worked as a psychotherapist, clinician, substance abuse counselor and Behavioral Health Contact Manager in various medical facilities for several years prior to joining VIP. (Id.) Fermin first was hired by VIP in February 2015 as a Therapist/Assessment Counselor with an annual salary of $53,000. (Id. ¶ 74.) In July 2016, after demonstrating good performance, Fermin was promoted to Clinical Director of the Ryan White Clinic and offered an annual salary of $80,000. (Id. ¶ 75.) While Polite had many years of work experience as a social worker in various medical facilities, he did not have work experience in the areas of sex work, HIV and HCV. (Id. ¶ 86.) Polite's educational credentials were less impressive than Fermin's and, unlike Fermin, Polite could not speak Spanish. (Id.) In addition, having never been employed by VIP before, Polite had not attained the experience and skills attained by Fermin prior to him becoming Clinical Director. (Id.) For these reasons, VIP deemed that an annual salary of $75,000 for Polite was appropriate considering Polite's qualifications at the time. (Id.)
While VIP did not have a definitive list of criteria it considered when setting compensation for each individual employee, factors that were strongly considered were an individual's educational background, relevant work experience, tenure at VIP, record of performance and other qualifications necessary for the role at hand. (Def.'s 56.1 Stmt. ¶ 49.) From around October 2018 onwards, another factor that VIP started considering was how an employee's compensation compares with that offered by VIP's competitors for similar positions. (Id. ¶ 50.)
On October 23, 2018, VIP issued a “Request for Bid” which sought to engage an outside firm to conduct a market assessment of salaries and develop a staff compensation design and structure for the entire organization. (Def.'s 56.1 Stmt. ¶ 51.) The purpose of engaging an outside firm was to ensure that VIP's compensation scheme was in line with those of its competitors. (Id. ¶ 52.) The successful bidder, after conducting a “market assessment of salaries” was expected “to provide to VIP a set of recommendations that include staff compensation, a salary structure that contemplates salary grades or banding and salary ranges, as well as a career ladder.” (Id.)
Following the bidding process, VIP entered into a Consulting Services Agreement with Astron Solutions, LLC (“Astron”). (Def.'s 56.1 Stmt. ¶ 53.) Pursuant to the terms of the Consulting Services Agreement, Astron reviewed the job description and salaries of more than 250 employees holding different positions at VIP and consolidated their findings in a detailed spreadsheet. (Id.) For each employee, Astron set forth a “Target Rate.” i.e., a recommended compensation which would fall in line with market range, while also conforming to VIP's payroll budget. (Id.) With respect to Polite's salary, Astron Solutions determined his “Target Rate” to be lower than his actual compensation; specifically, Polite was paid $75,000 annually - which was equivalent to $41.21 per hour - while his “Target Rate” was $39.85 per hour. (Id. ¶ 54.) Thus, Polite's salary was not affected in light of Astron's findings. (Id. ¶ 55.)
V. Incident Regarding Use of N-Word
The basis of Polite's race discrimination complaint in this case is that “staff were being called the N-word.” (Def.'s 56.1 Stmt. ¶ 92; see also Second Am. Compl. (“SAC”), ECF No. 25, at PDF p. 5 (alleging race discrimination because “staff [were] being called [n ]”).) When asked during his deposition to clarify which “staff,” Polite stated that “Eric Iglesias, the driver, reported to [him] that Angela Caban had called him and Mr. Coleman a n----- while they was in their workplace.” (Id. ¶ 93.) This allegedly occurred during August 2019, i.e., shortly before Polite's termination. (Id.) Polite never brought a complaint to HR regarding this alleged conversation. (Id. ¶ 98.)
Polite never heard anyone else using the N-word while at VIP. (Def.'s 56.1 Stmt. ¶ 100.) Aside from that one complaint that Polite allegedly received from Iglesias about Caban using the N-word, Polite does not recall having heard any other language that he considered racist during his employment at VIP. (Id. ¶ 101.)
PROCEDURAL HISTORY
On September 16, 2020, Plaintiff filed his pro se Complaint in this action. (Compl., ECF No. 2.) In his Complaint, Plaintiff asserted that he was bringing claims against VIP under Title VII of the Civil Rights Act of 1964 (“Title VII”) for VIP's failure to provide him with equal pay and retaliation against him. (See Compl. at 2.) Plaintiff also asserted that he was subjected to age discrimination because the former Clinical Director, who was younger, was paid more than him. (See id. at 10.)
On October 13, 2020, this Court issued an Order to Amend, stating that, “[e]ven read as leniently as possible, Plaintiff fails to allege facts suggesting that his employer discriminated and retaliated against him based on the factors prohibited by Title VII and the [Age Discrimination in Employment Act (‘ADEA')].” (Order to Answer, ECF No. 6, at 4.) Thus, Plaintiff was granted leave to file an amended complaint that complied with the legal standards set forth in the Order to Amend. (See id. at 6.)
On December 29, 2020, Plaintiff filed an Amended Complaint. (Am. Compl., ECF No. 8.) In his Amended Complaint, Plaintiff alleges claims against VIP under ADEA and the New York State Human Rights Law (“NYSHRL”), as well as a claim for “Employment Retaliation.” (See id. at 3-4.)
On February 4, 2021, this action was referred to the undersigned for general pretrial purposes and to make reports and recommendations on dispositive motions. (Order of Ref., ECF No. 10.) On April 20, 2021, Defendant filed a letter seeking leave to file a motion to dismiss Plaintiff's NYSHRL claim based upon the election of remedies doctrine. (Def.'s 4/20/21 Ltr., ECF No. 19.) On May 5, 2021, following a telephone conference with the parties, the Court entered an Order directing Plaintiff to file either: (a) a proposed Second Amended Complaint dropping his discrimination and retaliation claims under the NYSHRL, and including all other discrimination and/or retaliation claims he intends to pursue including, inter alia, under Title VII, ADEA and/or the NYCHRL, or (b) file a letter indicating that he wishes to move forward with the Amended Complaint that he previously had filed. (5/5/21 Order, ECF No. 22, ¶ 1.) Plaintiff was strongly encouraged to consult with the New York Legal Assistance Group (“NYLAG”) regarding these options. (See id.)
On May 20, 2021, Plaintiff filed his Second Amended Complaint, which is the subject of the motion currently before the Court. (See SAC.) In the Second Amended Complaint, Plaintiff asserts claims under Title VII, ADEA and the New York City Human Rights Law (“NYCHRL”). (See id. at PDF pp. 5-6.)
On May 17, 2021, Plaintiff had filed at ECF No. 23 a prior version of a second amended complaint that was missing pages. The pleading at ECF No. 25 was filed following a Court Order notifying Plaintiff of the missing pages. (5/19/21 Order, ECF No. 24.)
On July 20, 2021, a case management plan was entered (Case Mgt. Plan, ECF No. 32), and discovery ensued. On December 14, 2021, a pro bono attorney affiliated with NYLAG entered a limited appearance for the purpose of defending and taking depositions. (Not. of Limited Scope Appearance, ECF No. 37.) On December 20, 2021, Plaintiff's deposition was taken. (See Polite Dep., ECF No. 45-2.) On January 18, 2022, the Court was advised of Plaintiff's intention to take the deposition of four non-party witnesses who were formerly employed by Defendant. (1/18/22 Joint Ltr., ECF No. 38.)
On March 31, 2022, Defendant filed its motion for summary judgment that currently is before the Court (see Def.'s Not. of Mot.), along with related supporting papers. However, since Defendant failed to file a “Notice To Pro Se Litigant Who Opposes a Motion For Summary Judgment” (together with the full texts of Fed.R.Civ.P. 56 and Local Civil Rule 56.1), as required by Local Civil Rule 56.2. Thus, by Order dated April 1, 2022, the Court directed Defendant to serve and file the notice required by Local Civil Rule 56.2. (4/1/22 Order, ECF No. 51.) In its April 1 Order, the Court reminded Plaintiff that NYLAG was available to assist pro se parties like himself. (See id. at 1.) Defendant thereafter served the Local Civil Rule 56.2 notice upon Plaintiff, which stated, in part: “If you do not respond to the motion for summary judgment on time with affidavits and/or documents contradicting the material facts asserted by the defendant, the Court may accept defendant's facts as true.” (Not. to Pro Se Litigant, ECF No. 52.)
On May 2, 2022, Plaintiff filed his opposition to Defendant's motion in the form of a letter to the Court. (See Pl.'s Opp.) In his opposition, Plaintiff referenced paragraphs of Defendant's Rule 56.1 Statement. (See id. at 1-5.) With respect to paragraphs 1 to 19, 20 to 32 and 33 to 48, Plaintiff provided “clarification.” (See id. at 1-3.) With respect to paragraphs 49 to 75, 76 to 90 and 91 to 101, Plaintiff provided certain additional information. (See id. at 3-5.) However, Plaintiff failed to specifically controvert any of the paragraphs contained in Defendant's Rule 56.1 Statement.
SUMMARY JUDGMENT 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)).
When a party moves for summary judgment against a pro se litigant, courts afford the non-moving party “special solicitude.” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010). District courts must read a pro se litigant's “pleadings liberally and interpret them to raise the strongest arguments that they suggest.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (quotation marks and citations omitted). Courts “are less demanding of [pro se] litigants generally, particularly where motions for summary judgment are concerned.” Jackson v. Fed. Express, 766 F.3d 189, 195 (2d Cir. 2014). This lower standard for pro se litigants does not, however, “relieve [the pro se litigant] of his duty to meet the requirements necessary to defeat a motion for summary judgment.” Jorgensen, 351 F.3d at 50 (quotation marks and citations omitted).
DISCUSSION
I. Title VII Retaliation Claim
Title VII retaliation claims are evaluated under the same three-step burden shifting analysis as Title VII discrimination claims. See Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010). First, the plaintiff must establish a prima facie case of retaliation. See Rivera v. Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014). To make out a prima facie case of retaliation under Title VII, “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.” See Littlejohn v. City of New York, 795 F.3d 297, 315-16 (2d Cir. 2015) (internal quotation marks omitted) (quoting Hicks v. Baines, 593 at 164). If the employee establishes a prime facie case, the burden shifts to the employer to provide a non-retaliatory rationale for the adverse action. See Cox v. Onondaga Cnty. Sheriff's Dept., 760 F.3d 139, 145 (2d Cir. 2014). “Once the employer has done so, the employee may prevail by demonstrating that the stated rationale is mere pretext.” Id. A plaintiff must establish that retaliation was the “but-for” cause of his termination; i.e., “that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” See Univ. of Texas Southwestern Med. Center v. Nassar, 570 U.S. 338, 360 (2013).
“Protected activity,” i.e., the first element of a prima facie claim of retaliation, “is action taken to protest or oppose statutorily prohibited discrimination.” See Natofsky v. City of N.Y., 921 F.3d 337, 354 (2d Cir. 2019). “As to the second element [of the prima facie case], implicit in the requirement that the employer have been aware of the protected activity is the requirement that it understood, or could reasonably have understood, that the plaintiff's opposition was directed at conduct prohibited by Title VII.” Kelly v. Shapiro & Associates Consulting Engineers, P.C., 716 F.3d 10, 15 (2d Cir. 2013) (citing Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998)).
Plaintiff asserts that that, in August 2019, two employees, Toussaint and Williams, had complained to him that Maling touched them inappropriately, and that he was unlawfully terminated in retaliation for reporting Toussaint's and Williams's statements to HR. (See SAC at PDF p. 7.) Defendant contends that Plaintiff cannot make a prima facie case of retaliation because he did not engage in any protected activity, inasmuch as Defendant determined that Plaintiff had fabricated the allegations against Maling, and that VIP met its burden to articulate a legitimate reason for discharging Plaintiff, and Plaintiff cannot identify any basis to establish that the stated reason was false or that it was a pretext for retaliation. (See Def.'s Mem. at 9-13.)
The record before the Court reflects that, after Plaintiff brought his allegations to HR regarding what Toussaint and Williams purportedly told him about Maling's conduct, Defendant promptly conducted a thorough investigation, including interviews of Toussaint and Williams, both of whom denied making such statements to Plaintiff. (See Def.'s 56.1 Stmt. ¶¶ 36-39.) Based upon this investigation, Defendant reasonably determined that Plaintiff fabricated the allegations against Maling. (See id. ¶ 43.) In these circumstances, the Court finds that Plaintiff has failed to present evidence to satisfy the second element of his prima face retaliation case-that is, he has failed to present evidence that VIP understood, or could reasonably have understood, that Plaintiff's activity in making allegations about Maling was directed at conduct prohibited by Title VII. Rather, VIP reasonably believed that no conduct prohibited by Title VII had occurred.
In addition, as a second, independent ground for dismissing Plaintiff's retaliation claim, the Court finds that Plaintiff has failed to present sufficient evidence to satisfy the first element of his prima face retaliation case-that is, he has failed to present sufficient evidence that he took action to protest or oppose statutorily prohibited discrimination by Maling. The only evidence supporting Plaintiff's retaliation claim consists of his own allegations about what Toussaint and Williams purportedly told him, which were contradicted by both Toussaint and Williams separately. Here, as in Thomas v. Westchester Cnty. Health Care Corp., 232 F.Supp.2d 273 (S.D.N.Y. 2002), “to uphold [Plaintiff's] claim in the face of so little factual support would be to vitiate the portion of [VIP's HR] policy that attempts to punish those who . . . are found to have lodged false accusations.” Id. at 280; see also id. (“Any person accused of making a false accusation could claim that the disciplinary proceedings were brought as retaliation, regardless of the legitimacy of the accusation.”).
Plaintiff's Complaint alleges that an employee with the name of “Ms. Woods” was “in the office” when Williams and Toussaint made their alleged complaints. (See SAC at PDF p. 7.) Plaintiff, however, offers no evidence from Ms. Williams in opposition to summary judgment. In any event, even if someone named Ms. Woods could submit testimony to corroborate Plaintiff's version of the events, such testimony would not affect the outcome. Plaintiff admitted during his deposition that he never told HR that Ms. Woods was a witness to Toussaint's and Williams's alleged complaints. (Polite Dep. at 156.) VIP therefore did not have an opportunity to investigate by speaking to Ms. Woods prior to terminating Plaintiff and thus Ms. Woods's testimony could not be used to prove that VIP retaliated against Plaintiff. See McPherson v. New York City Bd. of Ed., 457 F.3d 211, 216 (2d Cir. 2006) (holding that “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' to take the adverse action . . .; the factual validity of the underlying imputation against the employee is not at issue” (citation omitted)).
VIP's employee handbook states that “the retaliation provision is not intended to protect persons making intentionally false charges of harassment” and that “[d]isseminating information, verbally or in writing, that is untrue or malicious about other staff” constitutes “grounds for immediate discharge.” (Def.'s 56.1 Stmt. ¶ 15.)
As a final, independent ground for dismissal of Plaintiff's retaliation claim, the Court finds that VIP has met its burden to articulate a legitimate reason for discharging Plaintiff, and he cannot identify any basis to establish that the stated reason was false or that it was a pretext for retaliation. See James v. N.Y. Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000) (employer that puts forth nondiscriminatory reasons for employment action is entitled to summary judgment “unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination”). Based upon its investigation, VIP terminated Plaintiff because it found that he had fabricated the allegations against Maling, and Plaintiff has not shown that this reason was false or a pretext for retaliation.
Accordingly, I recommend that Plaintiff's Title VII retaliation claim be dismissed.
II. ADEA Claim
The ADEA protects employees over the age of forty against age-based discrimination relating to “compensation, terms, conditions, or privileges of employment.” 29 U.S.C. § 623(a)(1). Plaintiff's age discrimination claim is based solely on the fact that Fermin, the prior Clinical Director who was younger than him, was paid $5,000 more annually for the same role. (See Polite Dep. at 202-03.)
To establish a prima facie case of disparate pay, plaintiff must demonstrate (1) membership in a protected class, (2) that he was compensated “less than similarly situated nonmembers” of the protected class and (3) “evidence of discriminatory animus.” Thomas v. iStar Fin., Inc., 438 F.Supp.2d 348, 367 (S.D.N.Y. 2006) (considering disparate pay claim under Title VII), aff'd, 629 F.3d 276 (2d Cir. 2010). To be “similarly situated,” employees must be substantially similar as to specific work duties, education, seniority and performance history, all of which affect an employee's rate of pay. See Quarless v. Bronx-Lebanon Hosp. Ctr., 228 F.Supp.2d 377, 383-84 (S.D.N.Y. 2002), aff'd, 75 Fed.Appx. 846 (2d Cir. 2003). Thus, in order to avoid summary judgment, Plaintiff must produce evidence to show that he was similarly situated to Fermin. See Quarless, 228 F.Supp.2d at 383.
In opposition to Defendant's summary judgment motion, Plaintiff has failed to produce evidence that he was similarly situated to Fermin. Rather, Defendant has shown that, although Plaintiff and Fermin both served as Clinical Directors of the Ryan White Clinic at different times, their education, seniority and performance history at VIP were quite different.
Fermin first was hired by VIP in February 2015 as a Therapist/Assessment Counselor with an annual salary of $53,000. (Def.'s 56.1 Stmt. ¶ 74.) In July 2016, after demonstrating good performance, Fermin was promoted to Clinical Director of the Ryan White Clinic and offered an annual salary of $80,000. (Id. ¶ 75.) While Polite had many years of work experience as a social worker in various medical facilities, he did not have work experience in the areas of sex work, HIV and HCV. (Id. ¶ 86.) Polite's educational credentials were less impressive than Fermin's and, unlike Fermin, Polite could not speak Spanish. (Id.) In addition, having never been employed by VIP before, Polite had not attained the experience and skills attained by Fermin prior to him becoming Clinical Director. (Id.)
Due to these differences, Fermin was not similarly situated to Plaintiff and therefore is not a valid comparator. Thus, I recommend that summary judgment be granted dismissing Plaintiff's ADEA claim.
As a separate, independent ground for dismissal of Plaintiff's ADEA claim, Plaintiff has put forth no evidence of discriminatory animus, as required. See Thomas, 438 F.Supp.2d at 367. Indeed, throughout Plaintiff's employment, no one made any comments relating his age, and no one ever suggested that Plaintiff was being paid less than Fermin because of his age. (Polite Dep. at 210.)
III. Title VII Race Discrimination Claim
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 race, color, religion, sex, or national origin.” 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 race, color, religion, sex, or national origin.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015). On a motion for summary judgment, claims of discrimination under Title VII 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 Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013).
In the first step of the McDonnell Douglas framework, the employee bears the burden of setting forth evidence sufficient to support a prima facie case of either discrimination or retaliation. To make out a prima facie case for discrimination, a plaintiff must show (1) that he is a member of a protected class; (2) that he was qualified for employment in the position; (3) that he suffered an adverse employment action; and (4) some minimal evidence suggesting an inference that the employer acted with discriminatory motivation. 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. 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.
The sole allegation of race discrimination in Plaintiff's Second Amended Complaint is one line stating that “staff [were] being called [n ].” (SAC at PDF p. 5.) At his deposition, Plaintiff testified that, on one occasion, Eric Iglesias, a Hispanic employee, complained to him that Caban, an employee that was working under Plaintiff's supervision, had called him and a fellow employee the N-word; that Plaintiff was not present during that conversation; and that throughout the course of his employment, Plaintiff did not recall ever having heard any language that he considered racist. (See Polite Dep. at 218-19.)
The Court need not engage in a McDonnell Douglas analysis since Plaintiff's sole allegation of race discrimination is based on inadmissible hearsay, and thus Defendant is entitled to summary judgment on the Title VII claim. See Taylor v. Potter, No. 99-CV-04941(AJP), 2004 WL 1811423, at *17 (S.D.N.Y. Aug. 16, 2004), aff'd, 148 Fed.Appx. 33 (2d Cir. 2005) (granting summary judgment in Title VII case, holding that Plaintiff's “testimony about what other employees allegedly told him is inadmissible hearsay”).
As a separate, independent ground for dismissal of Plaintiff's race discrimination claim, the Court finds that Plaintiff has not established that he suffered an adverse employment action as a result of Defendant's race discrimination, as required. See Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 2007).
Accordingly, I recommend that Defendant be granted summary judgment dismissing Plaintiff's race discrimination claim.
IV. NYCHRL Retaliation, Age And Race Discrimination 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). NYCHRL's retaliation provision broad “protecting plaintiffs who oppose any practice forbidden under the law from conduct reasonably likely to deter a person engaging in such action.” Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 76 (2d Cir. 2015) (alteration adopted) (citation and internal quotation marks omitted). “[E]ven if the challenged conduct is not actionable under federal and state law, federal courts must consider separately whether it is actionable under the broader New York City standards.” Mihalik, 715 F.3d at 109.
Plaintiff's NYCHRL retaliation claim should be dismissed. Because no reasonable jury could find that VIP fired Plaintiff in retaliation for his making allegations regarding Maling, there is no evidence that VIP engaged in any conduct “reasonably likely to deter a person” from complaining about NYCHRL violations. See Gokhberg v. PNC Bank, N.A., No. 21-CV-00222, 2022 WL 288174, at *2 (2d Cir. Feb. 1, 2022).
Plaintiff's NYCHRL age discrimination claim also should be dismissed. To state a claim of discrimination under the NYCHRL, Plaintiff “must allege that he was treated less well because of his membership in a protected class.” Gonzalez v. City of New York, 377 F.Supp.3d 273, 300 (S.D.N.Y. 2019) (internal quotations, alterations and citations omitted). Plaintiff has not made a showing that he was treated less well in his compensation because of his age. As set forth above, Defendant had valid reasons to pay Plaintiff $5,000 less in annual salary than Fermin, his predecessor, and the fact that Fermin was younger, without more, is insufficient to raise an inference of age discrimination, even under the more liberal standard of the NYCHRL. See Vaigasi v. Solow Mgmt. Corp., No. 11-CV-05088 (RMB) (HBP), 2017 WL 945932, at *5 (S.D.N.Y. Feb. 16, 2017) (age difference alone insufficient to raise inference of discrimination) (granting summary judgment), aff'd, 750 Fed.Appx. 37 (2d Cir. 2018).
Finally, Plaintiff's NYCHRL race discrimination claim should be dismissed because it is based upon inadmissible hearsay. See Taylor, 2004 WL 1811423, at *17.
Accordingly, I recommend that Defendant be granted summary judgment dismissing Plaintiff's NYCHRL claims.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Defendant's motion for summary judgment be GRANTED and that this action be dismissed.
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 Daniels.
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).