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finding employer not liable for conduct of non-employee due to employer's lack of knowledge of and lack of control over the derogatory comments
Summary of this case from Maidana v. Bos. Culinary Grp., Inc.Opinion
01 Civ. 4595 (AJP)
August 15, 2002
OPINION AND ORDER
Pro se plaintiff Julio Viruet, a homosexual male, brought this Title VII action against his former employer, Citizen Advice Bureau ("CAB"), alleging that he was (1) discriminated against due to his sexual orientation when he was refused a pay raise and a promotion, asked to perform duties outside of his job description, harassed at work, and ultimately terminated, (2) retaliated against, and (3) defamed. (Dkt. No. 4: Am. Compl. ¶¶ 4, 8 7/27/01 Attachment.) Presently before the Court is defendant CAB's summary judgment motion. (Dkt. Nos. 21-26, 30-32.) In responding to CAB's motion, Viruet also seeks "permission to amend the complaint" pursuant to Fed.R.Civ.P. 15(a) "to explain that he thought sex discrimination was the same as sexual orientation discrimination." (Dkt. No. 31: Viruet 6/6/02 Aff. at 6.)
Viruet initially also raised claims of discrimination and retaliation under the Age Discrimination in Employment Act ("ADEA") and the Americans with Disabilities Act ("ADA"). (Dkt. No. 2: Compl. at 1; Dkt. No. 4: Am. Compl. at 1 7/27/01 Attachment.) Viruet's ADEA claim was dismissed because he was under 40 years of age. (Dkt. No. 3: 5/31/01 Order at 1, citing 29 U.S.C. § 631 (a): "The prohibitions in this chapter shall be limited to individuals who are at least 40 years of age."). On March 3, 2002, Viruet voluntarily withdrew his ADA claim. (Dkt. No. 19: 3/3/02 Conf. Transcript ["Tr."] at 9.)
The parties have consented to disposition of this action by a Magistrate Judge pursuant to 28 U.S.C. § 636 (c). (See Dkt. No. 18.)
For the reasons set forth below, the Court GRANTS CAB's summary judgment motion in its entirety, dismissing: (1) Viruet's Title VII claim against CAB because sexual orientation discrimination is not cognizable under Title VII (Point II below), (2) Viruet's New York City Human Rights Law ("NYCHRL") discrimination claims because Viruet has failed to show that CAB's reasons for terminating him were a pretext for discrimination (Point III below); (3) Viruet's retaliation claim because it was not raised before the Equal Employment Opportunity Commission ("EEOC") and, in any event, is meritless (Point IV below); and (4) Viruet's defamation claim because it is time barred as to certain remarks and CAB's alleged statements to the unemployment board are privileged (Point VI below). In addition, the Court GRANTS Viruet's motion to amend his complaint to state a claim for sex discrimination rather than sexual orientation discrimination, but GRANTS CAB summary judgment on that claim as well. (Point V below.)
FACTS
The following facts, viewed in the light most favorable to plaintiff Viruet, are drawn from the amended complaint, affidavits, deposition transcripts, and other documentary evidence submitted by both parties on this motion. See Burger v. Litton Indus., Inc., 91 Civ. 0918, 1996 WL 421449 at *1 (S.D.N.Y. Apr. 25, 1996) (Peck, M.J.), report rec. adopted, 1996 WL 609421 (S.D.N.Y. Oct. 22, 1996) (Knapp, D.J.).
Viruet's Employment at CAB and Alleged Discriminatory Treatment
Plaintiff Julio Viruet is a homosexual male who was employed by CAB, a "drop-in center for homeless individuals," working twenty hours per week as a client case aide from May 1999 until his termination in November 2000. (Dkt. No. 4: Am. Compl., 7/27/01 Attachment at 2; Dkt. No. 23: Torres Aff Ex. H: CAB 5/17/99 Job Offer Letter to Viruet; Dkt. No. 25: CAB 56.1 Stmt. ¶¶ 1, 3.) Viruet's duties included the "monitoring and issuance of clothing, bags, hygiene supplies, and performing all other functions within [his] job description" (Am. Compl., 7/27/01 Attachment at 2), such as "conduct[ing] intake interviews," "sort[ing] and maintain[ing] donations," "provid[ing] crisis intervention when needed; report[ing] all incidents to the operations coordinator and/or shift supervisor immediately," "assist[ing] the police or EMS when necessary," "provid[ing] assistance with meals, basic social services, maintenance, etc. when necessary," and "assist[ing] with special projects" (Torres Aff. Ex. F: Job Description, Client Care Worker; Viruet SJ Docs.; Job Descriptions, Client Care Worker Case Aide; CAB 56.1 Stmt. ¶ 2).
Viruet was informed when he was offered the job that "[l]ike all employees of Citizens Advice Bureau, [he] serve[s] at the pleasure of the Board of Directors and the Executive Director." (Torres Aff. Ex. H: CAB 5/17/99 Job Offer Letter to Viruet.)
In response to CAB's motion for summary judgment, Viruet submitted a file of collected documents, in no particular order, including his job description, excerpts from his deposition testimony, memos he had written and received as a CAB employee, and his employee progress reports.
Viruet complains that Trish Marsik, the facility director, "never liked [him] from day one" and did not permit him to make "medical lists" even though this task was in his job description, because he "didn't have a [GED] degree." (Viruet SJ Docs.: Viruet Dep. at 252-53.)
In December 1999, Viruet "approached Scott Auwarter, Deputy Director [of] Case Management Services, seeking assistance with enrollment in CAB's insurance plan" because his Social Security benefits were terminated. (Dkt. No. 31: Viruet 6/6/02 Aff. at 1, admitting CAB 56.1 Stmt. ¶¶ 8, 9; Dkt. No. 24: Bauer 5/6/02 Aff. Ex. E: Viruet Dep. at 170.) Viruet alleges that during that conversation, Auwarter asked him: "'why are you getting social security, . . . do you have AIDS or HIV?'" (Am. Compl., 7/27/01 Attachment at 2; Viruet 6/6/02 Aff. at 1, admitting CAB 56.1 Stmt. ¶ 10; Bauer 5/6/02 Aff. Ex. D: Viruet EEOC Charge of Discrimination, Addendum at 1.) Viruet alleges that "Auwarter based his [comment] on the assumption that [Viruet] was homosexual" and on "the ignorant belief that [Viruet therefore] must have HIV or AIDS." (Am. Compl., 7/27/01 Attachment at 2; Bauer 5/6/02 Aff. Ex. E: Viruet Dep. at 173-77.) Viruet complained about Auwarter's comment to Michelle Mason, Director of Social Services and Viruet's supervisor, but alleges that he did not make a formal complaint because "Mason failed to give [him] the form." (Viruet SJ Docs.: Viruet Dep. at 162-63, 223; Viruet 6/6/02 Aff. at 1, admitting CAB 56.1 Stmt. ¶ 12.)
Viruet admits he had a copy of the form, but did not want to "rip [it out] from [the employee manual]." (Viruet SJ Docs.: Viruet Dep. at 220-23.)
Viruet alleges that as a result of his oral complaint to Mason regarding Auwarter, beginning in January 2000, he began experiencing what he calls "petty forms of retaliation," including a refusal of a pay raise reduced work hours and assignments unrelated to his job description that were detrimental to his health, including "handling hepatitis infected client properties." (Am. Compl., 7/27/01 Attachment at 1.) Viruet alleges that CAB "changed [his] job description without [his] consent, . . . a job title was also changed," he received "more responsibility" and additional duties, and was "psychologically manipulated" in that CAB "constantly wanted [him] to do this, do that, when [his] job is to be in the client care room and . . . on special occasions [he was] assigned to do things like decorate the place, help clean up with the maintenance, that's it." (Viruet SJ Docs.: Viruet Dep. at 223-24.) Viruet further alleges that clients were "allowed to verbally slander [and] physically threaten [him] using sexual innuendos," and epithets like "faggot" and CAB "never did nothing about it." (Am. Compl., 7/27/01 Attachment at 1; Bauer 5/6/02 Aff. Ex. D: Viruet EEOC Charge of Discrimination, Addendum at 1; Viruet SJ Docs.: Viruet Dep. at 224.) Viruet also claims that his superiors constantly reminded him that he did not have a GED, and he had several "run-ins with the prior Facility Director (Ms. Trish Marsik) for trying to stand up for" himself (Bauer 5/6/02 Aff. Ex. D: Viruet EEOC Charge of Discrimination, Addendum at 1.)
In addition to arguing that he was retaliated against because of his complaint regarding Auwarter, Viruet seems to be arguing that CAB "retaliated" against him for being homosexual. (Am. Compl. ¶ 8 7/27/01 Attachment at 1.) Viruet is confusing discrimination with retaliation, which constitutes an adverse employment action as a result of activity protected under Title VII. See, e.g., Kennebrew v. New York City Hous. Auth., 01 Civ. 1654, 2002 WL 265120 at *18 (S.D.N.Y. Feb. 26, 2002) (Peck, M.J.). Homosexuality, as opposed to complaints to the employer or EEOC about the employer's practices, is not a "protected activity" that may serve as a basis for a retaliation claim. See, e.g., Kennebrew v. New York City Hous. Auth., 2002 WL 265120 at *18 ( cases cited therein); Bottge v. Suburban Propane, 77 F. Supp.2d 310, 313 (N.D.N.Y. 1999) ("Protected activity involves some form of objection, however informal" to discriminatory employment practices). As discussed in Point IV below, Viruet does not state a viable retaliation claim.
Contrary to Viruet's unsupported allegation, the record indicates that Viruet received a pay raise in July 2000. (Torres Aff. Ex. K: Change of Status Form; Viruet SJ Docs.: Viruet Dep. at 269-73; CAB 56.1 Stmt. ¶ 6.)
Viruet alleges that he was "hired for 20 hours per week, four days a week" and then "two weeks later" his hours were increased to "25 hours a week" and then in October 2000 his "hours were reduced to 20 hours again." (Viruet SJ Docs.: Viruet Dep. at 272-75.) No one explained to Viruet why his hours were being reduced. (Viruet SJ Docs.: Viruet Dep. at 275-77.) Viruet argues that this was "retaliation" but does not specify to what it was retaliatory. (Id.) Viruet admits he does not know "whether [his] job [position] was over budget or under budget" for CAB. (Viruet SJ Docs.: Viruet Dep. at 276.)
In addition, Viruet claims that he received "written reprimands for false allegations," and he was "denied a promotion at another agency sight [sic] based on slanderous accusations made by supervisory staff." (Am. Compl., 7/27/01 Attachment at 1.) Specifically, Viruet claims that he applied for a job at another CAB site. (Viruet SJ Docs.: Viruet Dep. at 65-66.) The person who interviewed him for the position called him "off the record" and asked him if he was having problems at his present CAB site. (Viruet SJ Docs.: Viruet Dep. at 66-68.) Viruet told her:
[B]ag confiscation [from CAB clients] was a big issue in that environment, every day it was fights, threats. . . . [B]ecause [CAB clients] left their bags unattended, [Viruet's] job was to confiscate bags, . . . and yes, there was chaos.
[Viruet] told her yes every day was allegation, verbal abuse and, of course, the . . . facility director was getting sick and tired, . . . [I]t was a mess in there.
(Viruet SJ Docs.: Viruet Dep. at 67.) Viruet did not get the job. (Viruet SJ Docs.: Viruet Dep. at 66-68.)
In February 2000, Viruet was involved in a verbal altercation with a client. (Torres Aff Ex. I: 2/10/00 Mason Memo to Viruet; see also CAB 56.1 Stmt. ¶ 4; Viruet SJ Docs.: Viruet 2/10/00 Memo to Mason.) Mason informed Viruet in a memorandum that:
On February 2, 2000, you brought to my attention that Robert Fernandez, [a] client, invited you outside to fight. You also indicated that you were willing to oblige him. I explained to you at that time as well as during supervision on February 4, 2000 that your response to Robert was inappropriate. As a staff member, you are expected to act in a professional manner regardless of the client's behavior.
I am well aware that it can be quite difficult to work in this setting, but as explained, clients are seeking our services for various reasons and we do not always know what troubles they are experiencing.
Since our meeting, you have expressed an understanding of this matter and I trust that you will not allow a client to have you respond again in such a manner.
Please be advised that any physical confrontation with a client can and will lead to termination.
(Torres Aff. Ex. I: 2/10/00 Mason Memo to Viruet, emphasis added.) Viruet did not deny the incident involving the client, explaining:
Conflict with client: On 2-2-00 [a] client invited me outside for [an] altercation in which I stated that I get off at 2:00 p.m. to diffuse the situation. My statement was perceived as an offer to fight the client by other clients and staff members. As an employee of C.A.B. L. Rm. [Living Room site] I am aware of my responsibility as it pertains to clients, and my job being at risk if I was to fight a client.
I would never intentionally jeopardize my job nor the safety and well being of a client.
(Viruet SJ Docs.: 2/10/00 Viruet Memo to Mason, emphasis added.)
CAB concedes that Viruet's "performance was generally satisfactory," but asserts that he was "counseled on several occasions regarding his difficulties with maintaining a professional distance from CAB's clients." (CAB 56.1 Stmt. ¶ 4.) Viruet's job evaluations show that Viruet took "pride in the condition of the client care room and trie[d] to leave it in a suitable condition," had a "good working relationship with co-workers" and "overall work[ed] well with clients" — however, throughout Viruet's employment, Mason emphasized that Viruet needed "to understand that [his] experiences may differ from clients' experiences [and] therefore not all clients are running a game or using psychology" on him. (Viruet SJ Docs.: 2/16/00 Monthly Progress Report at 1.) Mason recommended to Viruet that "clients being confronted needs [sic] to be done in privacy not in the presence of others." (Id. at 2.) Viruet acknowledged in the employee response section of the progress report that: "I do understand that at times clients can get out of hand and that's because my position is required to confiscate client bags." (Id.)
Viruet's February 2000 job evaluation reported that Viruet's "interaction with clients seems to be improving in terms of [Viruet] showing some flexibility and not always responding as if 'all' clients are trying to get [one] over." (Viruet SJ Docs.: 3/16/00 Monthly Progress Report at 1.) Viruet responded "I will continue to improve on my interaction with the clients." (Id. at 2.)
In April 2000, Viruet "request[ed] extra [hours] to complete organizing the client care confiscation [room]." (Viruet SJ Docs.: 4/17/00 Monthly Progress Report at 2.) Viruet also indicated that he is "always eager to learn and improve a method that can avoid a client to retaliate verbally or physically." (Id.) In May 2000, Mason remarked on Viruet's evaluation that "[t]here has been a remarkable change for the better in terms of [Viruet's] interaction with clients. [Viruet's] response [to a particular client] should be commended, especially since he placed you in a compromising position by shoving you. Keep up the good work." (Viruet SJ Docs.: 5/10/00 Monthly Progress Report at 1.) Further, Mason noted that Viruet "manage[s] [his] time well" and has "been able to set aside [his] differences" with staff "enabl[ing him] to work better." (Id. at 1-2.)
In June 2000, Viruet was warned that "responding to [client's] negative behavior in a negative fashion is inappropriate . . . . using other avenues to [let] the [clients] know that their behavior is inappropriate should be explored as . . . discussed." (Viruet SJ Docs.: 6/16/00 Monthly Progress Report at 1.) Regarding his interaction with clients, Viruet responded:
Whether I respond to a client in a humble, positive, negative or firm way, a client . . . is not prepar[ed] to listen to anyone. . . . I do understand I have a very strong character but in all I mean well to [the clients]. I'll improve that matter.
(Id. at 2.)
In July 2000, Mason remarked that Viruet's "interaction with clients ha[s] been exemplary in terms of playing games and [his] ability to work with clients around their hygiene" but she "caution[s] the content of conversations during activity." (Viruet SJ Docs.: 7/21/00 Monthly Progress Report at 1.) In addition, Mason noted that:
While [Viruet's] experiences may help him relate to [CAB's] client population, continued work and consistency is needed in the area of setting boundaries and not disclosing personal experiences.
. . . .
Often times because of his own experiences, [Viruet] allows this to interfere with his interaction with clients in that he believes and has verbalized that the client is playing games and trying to get over. Focus needs to be placed on client needs. Though there has been change, continued effort is needed in the area of not verbally confronting clients.
. . . .
[F]urthermore [Viruet has] participat[ed] in verbal disputes with both staff and clients [which] has been an issue that has been addressed and will need continued work.
(Viruet SJ Docs.: 7/28/00 Performance Appraisal Review Form at 1-3.)
Viruet's Relationship with CAB Client Edwin Andino
Viruet claims that he knew Edwin Andino before Andino became a CAB client, having met him some time in the "late spring or beginning [of] summer" 2000 on the street "downtown." (Viruet SJ Docs.: Viruet Dep. at 91-93.) Andino was dressed "very professionally" and was a "very handsome guy, [Viruet's] type of guy, [they] hit it off," and Viruet gave his "number to him." (Viruet SJ Docs.: Viruet Dep. at 94, 100-01.) The two men became friends, watched television and "cuddle[d]" together, but did not become romantically or sexually involved. (Viruet SJ Docs.: Viruet Dep. at 95-100, 102-03.) Although Andino slept over Viruet's house "maybe a little bit more than five times" in the summer of 2000, Viruet maintains that Andino "never lived with" him. (Viruet SJ Docs.: Viruet Dep. at 95, 104, 109.)
Viruet referred Andino to CAB in August or September 2000 (Viruet SJ Docs.: Viruet Dep. at 100, 105-08, 114), although he did not mention this referral or their prior friendship to anyone; Viruet did not feel that he violated any CAB policies prohibiting contact with clients because "once [Andino] became a client, [Viruet and he] never had no more contact" and Viruet told Andino "once you become a client, you can't call me, we cannot have no type of association, and I showed him the guidelines." (Viruet SJ Docs.: Viruet Dep. at 110.) Although Viruet and Andino did not have a "sexual relationship," Viruet understood that he "had a responsibility under the CAB policy guidelines to disclose . . . the fact that [he] had some kind of involvement or a relationship with Mr. Andino" when Andino became a CAB client (just as Viruet had disclosed to CAB "other clients" with whom he had friendships) but failed to do so because he wanted to protect Andino's "homosexualism" since Andino was "in denial." (Viruet SJ Docs.: Viruet Dep. at 108, 110-14.)
In late October 2000, Viruet's house and work keys and his GED manual, which contained personal information including his home address and telephone number, were stolen from CAB. (Dkt. No. 24: Bauer 5/6/02 Aff. Ex. D: Viruet EEOC Charge of Discrimination Addendum at 1.) Viruet reported the theft to his immediate supervisor, Doris Johnson, on November 1, 2000. (Id.) The next day, Viruet received a threatening phone call from Andino. (Id.) Viruet reported the incident to Andino's case manager, Jeff Cooper, on November 6 and 7. (Id.) Viruet claims that on November 9, 2000, Andino confronted him in person and made threats on his life. (Id. at 1, 2.) Viruet filed an official police report about the confrontation. (Id. at 1.)
Mason received a letter dated November 9, 2000 from Andino. (Dkt. No. 23: Torres Aff. ¶ 3 Ex. A: Andino Letter at 1; Dkt. No. 25: CAB 56.1 Stmt. ¶ 14.) Andino claimed:
I became a client of CAB, in the month of August 2000, after my initial intake, I was instructed to go to the client's care unit, where I met, Mr. Viruet.
After several encounters and conversations, Mr. Viruet, became personally involved in helping me in my plight of homelessness. . . .
On October 2000, Mr. Viruet, suggested that I come to stay at his apartment, at 411 E. 118th Street, Apartment No. 36, New York City, N.Y. 10035. Since I was aware of his sexual preference I made it clear to him that I was not interested in becoming intimately involved with him in any way. After he assured me that that would be clearly understood, I agreed to go and live at his apartment.
Shortly after I moved in, Mr. Viruet, initiated several unsolicited conversations about Gay men and sex, and employed explicit language. I reminded him that I was not interested in engaging in that type of relationship. However, on in any occasions he demonstrated inappropriate behavior towards me, such as coming into [sic] the bathroom without knocking while I was taking a shower, and making sexual advances towards me, which I repeatedly turned down. After he seen [sic] that I was not responding to his advances, he became hostile towards me and told me that I could only stay at his house Monday through Thursdays, but would have to sleep elsewhere on the weekends. Since this decision was made after 8:00 p.m., I was not able to access the shelter. I was then forced to sleep in the streets for 3 days, and go without food because I did not have any money.
While in the streets, I endured, hunger, emotional pain, and the cold weather, which subsequently caused me to catch a cold, which turned into Bronchitis. Mr. Viruet also refused to turn over my mail, and said that he threw out my personal property, which I had left at his apartment. Since then I have not been able to track down my unemployment check. I have reasons to believe that he is intentionally holding back my check, because I contacted the N.Y.S. Department of Labor and the check was mailed out on the 3rd of November; I also inquired at the post office and they have informed me that no return mail was being held for me.
At this point I am very emotionally distraught. I hold Mr. Viruet, personally responsible for my illness, my loss of property and funds, and my set back. I feel that Mr. Viruet took advantage of my situation, because I was experiencing hardship, and I am filing this complaint for sexual harassment.
Therefore, I am respectfully requesting that the necessary actions be taken towards this employee, and I would like a written and verbal apology from whom ever maybe held accountable for this injustice.
Aside from this unfortunate situation, I am very thankful for the services I have received at CAB, so I assume that the behavior I have described is not, in fact, characteristic of your agency.
(Torres Aff. Ex. A: 11/9/00 Andino Letter to CAB; see also CAB 56.1 Stmt. ¶ 16.)
Mason and Noel Concepcion, then Director of Homeless Outreach, interviewed Andino on November 9, 2000 regarding his complaint against Viruet. (Torres Aff. Ex: D: 11/9/00 Concepcion Memo to Mason at 1; CAB 56.1 Stmt. ¶¶ 17, 19.) Andino told them that he did not know Viruet before becoming a client. (Torres Aff. Ex: D: 11/9/00 Concepcion Memo to Mason at 1.) Andino provided copies of his unemployment checks, which listed Viruet's apartment as his address. (Id.; Torres Aff. Ex. E: 11/9/00 Mason Memo to Torres Ex. thereto; CAB 56.1 Stmt. ¶¶ 20, 21.)
That night, Johnson called Viruet at home and notified him that he had been suspended with pay. (Bauer 5/6/02 Aff. Ex. D: Viruet EEOC Charge of Discrimination Addendum at 1; Torres Aff. ¶ 5.) Viruet's paid suspension began on November 10, "pending an investigation into Mr. Andino's allegations that [Viruet] had violated the CAB policy prohibiting personal involvement with clients." (Torres Aff. ¶ 5; see also CAB 56.1 Stmt. ¶ 18.) Viruet reported to the administration office on November 13 to speak with CAB's Administrative Counsel, Eileen Torres, regarding his suspension. (Bauer 5/6/02 Aff. Ex. D: Viruet EEOC Charge of Discrimination Addendum at 2.) According to Viruet, he threatened to go to the EEOC and Torres scheduled a November 14 meeting with Viruet to discuss his suspension. (Id.)
At the November 14 meeting, Torres and CAB Human Resources Specialist Tanya Parker met with Viruet and questioned him about his interactions with Andino. (Torres Aff. ¶ 8; CAB 56.1 Stmt. ¶ 22.) Viruet said that he knew Andino and had recommended him to CAB, but denied that any of his interactions involved anything "other than official business . . . because [he] was aware of agency policy about interacting with clients." (Bauer 5/6/02 Aff. Ex. D: Viruet EEOC Charge of Discrimination, Addendum at 2.) Viruet "admitted to driving Mr. Andino in [Viruet's] personal vehicle to different shelters, after work hours, on or about September 25, 2000 — a serious violation of CAB's procedures for transporting clients." (Torres Aff. ¶ 9; see also CAB 56.1 Stmt. ¶ 23.) Viruet admits that he was "aware" of CAB's policy regarding involvement with clients, which is written in the "agency guidelines" and which "may result in disciplinary action, up to and including immediate termination." (Viruet SJ Docs.: Viruet Dep. at 91; Dkt. No. 24: Bauer 5/6/02 Aff. Ex. E: Viruet Dep. at 127-33; Torres Aff. Ex. J: Employee Manual Excerpt, § 7.2.)
"For purposes of safety and liability, CAB enforces a procedure which mandates that a Case Manager or Outreach Worker who is required to transport a client to another location should be accompanied by another staff member. Further, the CAB vans, not a staff member's personal vehicle, must be used to escort clients to ensure that the vehicle being used is in good repair and covered by a valid insurance policy." (Torres Aff. ¶ 10.)
On November 28, 2000, based on Viruet's admission of violating CAB policy by escorting a client to a shelter, CAB terminated Viruet's employment. (Torres Aff. ¶ 12; CAB 56.1 Stmt. ¶ 28.) CAB asserts that "[a]t least two other employees were discharged for the same infraction as that which [Viruet] committed." (Torres Aff. ¶ 13.)
Viruet's EEOC Complaint
In early December 2000, Viruet filed a charge with the EEOC, claiming discrimination based on sex and disability, but not alleging retaliation. (Dkt. No. 24: Bauer 5/6/02 Aff. Ex. D: Viruet EEOC Charge of Discrimination.) In his sex discrimination charge, Viruet alleged that "due to [CAB's] expectations of [Viruet] being homosexual, [CAB] discriminated against [him] by accusing [him] of having a relationship with [a] client who is . . . male." (Id., Addendum at 2.) The EEOC "note[d] at the outset that by sex, Title VII means gender and not sexual preference" and, thus, the EEOC could not "conduct an investigation on the basis of sexual preference," and on December 12, 2000, issued a Right to Sue Letter. (Bauer 5/6/02 Aff. Ex. A: Compl., attached 12/12/00 Dismissal Right to Sue Letters.)
Viruet's Present Federal Lawsuit
Viruet's original pro se federal complaint, dated March 1, 2001, alleged discrimination under Title VII, the ADEA and ADA. (Dkt. No. 2: Compl.) By Order dated May 31, 2001, Chief Judge Mukasey dismissed Viruet's ADEA claim (see fn. 1 above) and directed Viruet to file an amended complaint that must contain factual allegations supporting his claims. (Dkt. No. 3: 5/31/01 Order). In response, Viruet filed an amended complaint on or about July 27, 2001, alleging that he was (1) discriminated against due to his sexual orientation when he was refused a pay raise and a promotion, asked to perform duties outside of his job description, harassed at work, and ultimately terminated, (2) retaliated against, and (3) defamed. (Dkt. No. 4: Am. Compl. ¶¶ 4, 8 7/27/01 Addendum.)
After discovery closed, CAB moved for summary judgment, arguing that: (1) Viruet's "claim for sex discrimination under Title VII fails since it is based upon his sexual orientation," (2) Viruet is "precluded from bringing a retaliation claim against [CAB] in federal court," "[b]ecause [Viruet] failed to raise a claim of [retaliation] in his charge with the" EEOC, and (3) "[Viruet's] common law claim for defamation fails because it is untimely and because he fails to set forth the required elements to establish a defamation claim." (Dkt. No. 22: CAB Br. at 7; see generally id. at 9-23.)
In response to CAB's summary judgment motion, on June 6, 2002, Viruet moved to further amend his complaint to "explain that he thought sex discrimination was the same as sexual orientation discrimination." (Dkt. No. 31: Viruet 6/6/02 Aff. at 6.) CAB opposed Viruet's motion to amend, arguing that (1) "the proposed amendment would be futile" because it "sets forth no new bases for [Viruet's] belief that [CAB] discriminated and retaliated against him" (Dkt. No. 29: CAB Reply Br. at 4-5); (2) Viruet's "request contravenes the requirements of the initial pretrial conference" because the "deadline for the filing of a motion to amend the pleadings [was] December 31, 2001" (id. at 6-7); and (3) "granting [Viruet]'s motion to amend [the complaint] would unduly prejudice [CAB]" (id. at 7-9).
ANALYSIS
I. LEGAL PRINCIPLES GOVERNING TITLE VII CASES
A. Summary Judgment Standards in Employment Discrimination Cases
For additional cases authored by this Judge discussing the summary judgment standards in employment discrimination cases in language substantially similar to that in this entire section of this Opinion, see, e.g., Brown v. Cushman Wakefield, Inc., 01 Civ. 6637, 2002 WL 1751269 at *12-13 (S.D.N.Y. July 29, 2002) (Peck, M.J.); Kennebrew v. New York Hous. Auth., 01 Civ. 1654, 2002 WL 265120 at *6-7 (S.D.N.Y. Feb. 26, 2002) (Peck, M.J.); Williams v. NYC Dep't of Sanitation, 00 Civ. 7371, 2001 WL 1154627 at *8-12 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.); Gonzalez v. New York City Transit Auth., 00 Civ. 4293, 2001 WL 492448 at * 6 (S.D.N.Y. May 9, 2001) (Peck, M.J.); Economou v. Caldera, 99 Civ. 12117, 2000 WL 1844773 at *12 (S.D.N.Y. Dec. 18, 2000) (Peck, M.J.); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at *7 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.), aff'd No. 01-7575, 23 Fed. Appx. 82, 2002 WL 4594 (2d Cir. Dec. 21, 2001); Austin v. Ford Models, Inc., 95 Civ. 3731, 2000 WL 1752966 at *6 (S.D.N.Y. Nov. 29, 2000) (Peck, M.J.), aff'd No. 01-7030, 22 Fed. Appx. 76, 2001 WL 1562070 (2d Cir. Dec. 4, 2001), petition for cert. filed, No. 01-10542, ___ U.S.L.W. ___ (U.S. May 28, 2002); Johns-Davila v. City of New York, 99 Civ. 1885, 2000 WL 1725418 at *3 (S.D.N.Y. Nov. 20, 2000) (Peck, M.J.); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 352 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.); Douglas v. Victor Capital Group, 21 F. Supp.2d 379, 387 (S.D.N.Y. 1998) (Stein, D.J. Peck, M.J.); Hernandez v. New York City Law Dep't Corp. Counsel, 94 Civ. 9042, 1997 WL 27047 at *6 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.).
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).
The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment — here, defendant. See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.
To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356; see also, e.g., Weinstock v. Columbia Univ., 224 F.3d at 41 (at summary judgment, "[t]he time has come . . . 'to put up or shut up'") (citation omitted).
In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513. The Court draws all inferences in favor of the non-moving party only after determining that such inferences are reasonable, considering all the evidence presented. See e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489 (1987). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM, 43 F.3d at 37.
See also, e.g., Chambers v. TRM, 43 F.3d at 36; Gallo v. Prudential, 22 F.3d at 1223.
"The Court recognizes that it must 'extend extra consideration' to pro se plaintiffs" such as Viruet, and that "pro se parties are 'to be given "special latitude on summary judgment motions."'" Salahuddin v. Coughlin, 999 F. Supp. 526, 535 (S.D.N.Y. 1998) (Rakoff, D.J. Peck, M.J.). "Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, 93 Civ. 5981, 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing cases).
Accord, e.g., Kennebrew v. New York City Hous. Auth., 2002 WL 265120 at *7; Fulmore v. Mamis, 00 Civ. 2831, 2001 WL 417119 at *6 (S.D.N.Y. Apr. 23, 2001) (Peck, M.J.); Freeman v. Strack, 99 Civ. 9878, 2000 WL 1459782 at *5 (S.D.N.Y. Sept. 29, 2000) (Peck, M.J.); Culp v. Koenigsmann, 99 Civ. 9557, 2000 WL 995495 at *5 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *5 (S.D.N.Y. June 13, 2000) (Peck, M.J.); Watson v. McGinnis, 981 F. Supp. 815, 818 (Kaplan, D.J. Peck, M.J.); see also, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be read liberally and interpreted "'to raise the strongest arguments that they suggest'").
See also, e.g., Kennebrew v. New York City Hous. Auth., 2002 WL 265120 at *7; Fulmore v. Mamis, 2001 WL 417119 at *6; Freeman v. Strack, 2000 WL 1459782 at *5; Culp v. Koenigsmann, 2000 WL 995495 at *5; Carbonell v. Goord, 2000 WL 760751 at *5.
In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510 (citation omitted); see also, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12.
When a case turns on the intent of one party, as employment discrimination claims often do, a "trial court must be cautious about granting summary judgment." Gallo v. Prudential, 22 F.3d at 1224. Because the employer rarely leaves direct evidence of its discriminatory intent, the Court must carefully comb the available evidence in search of circumstantial proof to undercut the employer's explanations for its actions. E.g., Gallo v. Prudential, 22 F.3d at 1224. "[S]ummary judgment may not be granted simply because the court believes that the plaintiff will be unable to meet his or her burden of persuasion at trial. There must either be a lack of evidence in support of the plaintiff's position or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error." Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998) (citations omitted). Nonetheless, when 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 and it may grant summary judgment to the employer. E.g., Budde v. HK Distrib. Co., No. 99-9449, 216 F.3d 1071 (table), 2000 WL 900204 at *1 (2d Cir. June 29, 2000); Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995). In other words, to defeat summary judgment, "the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Stern v. Trustees of Columbia Univ., 131 F.3d at 312; see, e.g., Schnabel v. Abramson, 232 F.3d 83, 90-91 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d at 42 (The question on summary judgment is "whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, it is not enough . . . to disbelieve the employer; the factfinder must also believe the plaintiff's explanation of intentional discrimination.") (internal quotations alterations omitted); Fisher v. Vassar College, 114 F.3d 1332, 1339 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851 (1998); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (plaintiff must "produce not simply 'some' evidence, but 'sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely than not [discrimination] was the real reason for the discharge'"). Indeed, the Second Circuit "went out of [its] way to remind district courts that the 'impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable.'" Weinstock v. Columbia Univ., 224 F.3d at 41.
Accord, e.g., Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("in an employment discrimination case when, as here, the employer's intent is at issue, the trial court must be especially cautious about granting summary judgment"); McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997) ("caution must be exercised in granting summary judgment where motive is genuinely in issue"); Cardozo v. Healthfirst Inc., 98 Civ. 3050, 1999 WL 782546 at *1-2 (S.D.N.Y. Sept. 30, 1999); see also, e.g., Chambers v. TRM, 43 F.3d at 40.
See also, e.g., Budde v. HK Distrib. Co., 2000 WL 900204 at *1; Scaria v. Rubin, 94 Civ. 3333, 1996 WL 389250 at *5 (S.D.N.Y. July 11, 1996) (Peck, M.J.), aff'd 117 F.3d 652, 654 (2d Cir. 1997).
B. Legal Principles Governing Title VII Actions
For additional cases authored by this Judge discussing the legal principles governing employment discrimination actions, in language substantially similar to that in this entire section of this Opinion, see, e.g., Brown v. Cushman Wakefield, Inc., 01 Civ. 6637, 2002 WL 1751269 at *20-22) (S.D.N.Y. July 29, 2002) (Peck, M.J.); Kennebrew v. New York Hous. Auth., 01 Civ. 1654, 2002 WL 265120 at *7-10 (S.D.N.Y. Feb. 26, 2002) (Peck, M.J.); Williams v. NYC Dep't of Sanitation, 00 Civ. 7371, 2001 WL 1154627 at *9-12 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.); Gonzalez v. New York City Transit Auth., 00 Civ. 4293, 2001 WL 492448 at *10 (S.D.N.Y. May 9, 2001) (Peck, M.J.); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at *11 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.), aff'd, No. 01-7575, 23 Fed. Appx. 82, 2002 WL 4594 (2d Cir. Dec. 21, 2001); Austin v. Ford Models, Inc., 98 Civ. 3731, 2000 WL 1752966 at *8 (S.D.N.Y. Nov. 29, 2000) (Peck, M.J.), aff'd, No. 01-7030, 22 Fed. Appx. 76, 2001 WL 1562070 (2d Cir. Dec. 4, 2001), petition for cert. filed, No. 01-10542, ___ U.S.L.W. ___ (U.S. May 28, 2002); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 354 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.); Lediju v. New York City Dep't of Sanitation, 173 F.R.D. 105, 113-14 (S.D.N.Y. 1997) (Leisure, D.J. Peck, M.J.); Hernandez v. New York City Law Dep't, 94 Civ. 9042, 1997 WL 27047 at *12 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.); Burger v. Litton, 91 Civ. 0918, 1996 WL 421449 at *8 (S.D.N.Y. Apr. 25, 1996) (Peck, M.J.), report rec. adopted, 1996 WL 609421 (S.D.N.Y. Oct. 22, 1996) (Knapp, D.J.).
Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating 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) (emphasis added). Viruet's Title VII claim here is based on Viruet's sexual orientation as a homosexual. (See pages 3-16 above.)
Under the familiar McDonnell Douglas burden-shifting analysis, the plaintiff has the burden at the outset of "proving by the preponderance of the evidence a prima facie case of discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093 (1981); see, e.g., Reeves v. Sanderson Plumbing, 530 U.S. 133, 142, 120 S.Ct. 2097, 2106 (2000); O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 310, 116 S.Ct. 1307, 1309 (1996); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2746-47 (1993); McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973). Establishment of a prima facie case "'in effect creates a presumption that the employer unlawfully discriminated against the employee.'" St. Mary's v. Hicks, 509 U.S. at 506, 113 S.Ct. at 2747 (quoting Texas v. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094).
See also, e.g., Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000); Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).
See also, e.g., Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997); Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851 (1998).
Once a plaintiff claiming employment discrimination establishes a prima facie case, the burden shifts to the defendant to rebut the presumption of discrimination by articulating a legitimate, non-discriminatory reason for its employment decision. E.g., Reeves v. Sanderson Plumbing, 530 U.S. at 142-43, 120 S.Ct. at 2106; O'Connor v. Consolidated Coin, 517 U.S. at 310, 116 S.Ct. at 1309; St. Mary's v. Hicks, 509 U.S. at 506-07, 113 S.Ct. at 2747; Texas v. Burdine, 450 U.S. at 253-54, 101 S.Ct. at 1093-94; McDonnell Douglas v. Green, 411 U.S. at 802, 93 S.Ct. at 1824. The burden on the defendant at this phase is one of production rather than persuasion. E.g., Reeves v. Sanderson Plumbing, 530 U.S. at 142, 120 S.Ct. at 2106; St. Mary's v. Hicks, 509 U.S. at 507, 113 S.Ct. at 2747; Texas v. Burdine, 450 U.S. at 257, 101 S.Ct. at 1096.
See also, e.g., Schnabel v. Abramson, 232 F.3d at 88; Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); Austin v. Ford Models, Inc., 149 F.3d at 152; Stein v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Scaria v. Rubin, 117 F.3d at 654; Fisher v. Vassar College, 104 F.3d at 1335; Chambers v. TRM, 43 F.3d at 38.
See also, e.g., Austin v. Ford Models, Inc., 149 F.3d at 153; Scaria v. Rubin, 117 F.3d at 654; Fisher v. Vassar College, 114 F.3d at 1335.
"Any legitimate, non-discriminatory reason will rebut the presumption triggered by the prima facie case." Fisher v. Vassar College, 114 F.3d at 1335-36. "'It is important to note . . . that although the McDonnell Douglas presumption shifts the burden of production to the defendant, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff."'" Fisher v. Vassar College, 114 F.3d at 1335 (quoting St. Mary's v. Hicks, 509 U.S. at 507, 113 S.Ct. at 2747); accord, e.g., Reeves v. Sanderson Plumbing, 530 U.S. at 142-43, 120 S.Ct. at 2106.
If the defendant articulates a non-discriminatory reason, the McDonnell Douglas burden-shifting framework drops out of the picture. E.g., Reeves v. Sanderson Plumbing, 530 U.S. at 142-43, 120 S.Ct. at 2106; St. Mary's v. Hicks, 509 U.S. at 510, 113 S.Ct. at 2749; Texas v. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94. "Moreover, although the presumption of discrimination 'drops out of the picture' once the defendant meets its burden of production, . . . the trier of fact may still consider the evidence establishing the plaintiff's prima facie case 'and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.'" Reeves v. Sanderson Plumbing, 530 U.S. at 143, 120 S.Ct. at 2106 (quoting Texas v. Burdine, 450 U.S. at 255 n. 10, 101 S.Ct. at 1095 n. 10).
See also, e.g., Weinstock v. Columbia Univ., 224 F.3d at 42; Scaria v. Rubin, 117 F.3d at 654; Fisher v. Vassar College, 114 F.3d at 1336.
The Supreme Court clarified the standard at this stage of the McDonnell Douglas analysis:
[I]n St. Mary's Honor Center . . . . we held that the factfinder's rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff. The ultimate question is whether the employer intentionally discriminated, and proof that "the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct." In other words, "[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination."
In reaching this conclusion, however, we reasoned that it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation. . . .
Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Thus, a plaintiff's prima facie case. combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.
This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. To hold otherwise would be effectively to insulate an entire category of employment discrimination cases from review under Rule 50 [or Rule 56], and we have reiterated that trial courts should not "'treat discrimination differently from other ultimate questions of fact.'"
Whether judgment as a matter of law [or summary judgment] is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.
Reeves v. Sanderson Plumbing, 530 U.S. at 146-49, 120 S.Ct. at 2108-09 (emphasis added citations omitted).
After Reeves, the Second Circuit has made clear that merely proving a prima facie case and disproving the employer's explanation for its conduct at the third step of the McDonnell Douglas analysis will not preclude summary judgment in all cases; rather, a case-by-case analysis is necessary:
In examining the impact of Reeves on our precedents, we conclude that Reeves prevents courts from imposing a per se rule requiring in all instances that a [Title VII] claimant offer more than a prima facie case and evidence of pretext. . . . But the converse is not true; following Reeves, we decline to hold that no [Title VII] defendant may succeed on a summary judgment motion so long as the plaintiff has established a prima facie case and presented evidence of pretext. Rather, we hold that the Supreme Court's decision in Reeves clearly mandates a case-by-case approach, with a court examining the entire record to determine whether the plaintiff could satisfy his "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff."
Schnabel v. Abramson, 232 F.3d at 90 (emphasis added).
See also, e.g., Roge v. NYP Holdings, Inc., 257 F.3d 164, 167-68 (2d Cir. 2001); Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 469-70 (2d Cir.), cert. denied, 122 S.Ct. 460 (2001); James v. New York Racing Ass'n, 233 F.3d 149, 156-57 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d at 42 ("In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination."); Weiser v. Forest Pharm., Inc., 99 Civ. 1809, 2001 WL 293951 at *7-8 (S.D.N.Y. Mar. 26, 2001); Tanay v. Saint Barnabas Hosp., 99 Civ. 9215, 2001 WL 262695 at *4 (S.D.N.Y. Mar. 15, 2001); Bennett v. Watson, Wyatt Co., 136 F. Supp.2d 236, 245 (S.D.N.Y.), reconsideration denied, 156 F. Supp.2d 270 (S.D.N.Y. May 18, 2001); Connell v. Consolidated Edison Co., 109 F. Supp.2d 202, 207-08 (S.D.N.Y. 2000) (Chin, D.J.) ("The key is whether there is sufficient evidence in the record — whether it consists of just the prima facie case and proof of pretext alone or those items together with additional evidence — to support an inference of discrimination.").
Indeed, the Second Circuit and District Court decisions within the Circuit continue to grant summary judgment to defendants in appropriate cases at the final McDonnell Douglas step, even after Reeves.
E.g., Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d at 470; James v. New York Racing Ass'n, 233 F.3d at 157; Williams v. NYC Dep't of Sanitation, 2001 WL 1154627 at *12-19; Gonzalez v. New York City Transit Auth., 2001 WL 492448 at *12; Weiser v. Forest Pharm., Inc., 2001 WL 293951 at *8; Tanay v. Saint Barnabas Hosp., 2001 WL 262695 at *9; Bennett v. Watson, Wyatt Co., 136 F. Supp.2d at 249-50; Cobian v. New York City, 2000 WL 1782744 at *13; Austin v. Ford Models, Inc., 2000 WL 1752966 at *12-15; Trezza v. Dilenschneider Group, 99 Civ. 0185, 2000 WL 1702029 at *5-6 (S.D.N.Y. Nov. 14, 2000); Faldetta v. Lockheed Martin Corp., 98 Civ. 2614, 2000 WL 1682759 at *8-11 (S.D.N.Y. Nov. 9, 2000); Chudnovsky v. Prudential Sec., Inc., 98 Civ. 7753, 2000 WL 1576876 at *8 (S.D.N.Y. Oct. 23, 2000); Cousins v. Howell Corp., 113 F. Supp.2d 262, 268-69 (D. Conn. 2000); Ekwegablu v. Central Parking Sys., 97 Civ. 9477, 2000 WL 1371335 at *3-4 (S.D.N.Y. Sept. 22, 2000); Connell v. Consolidated Edison Co., 109 F. Supp. at 208-11; Lenhoff v. Getty, 97 Civ. 9458, 2000 WL 977900 at *5-6 (S.D.N.Y. July 17, 2000); Campbell v. Alliance Nat'l Inc., 107 F. Supp.2d 234, 251 n. 12 (S.D.N.Y. 2000).
II. SEXUAL ORIENTATION DISCRIMINATION IS NOT COGNIZABLE UNDER TITLE VII
Viruet alleges that he was harassed and terminated solely because he is a homosexual male. (See page 15 above.)
In order to establish a prima facie case of discrimination under Title VII, plaintiff must show that: (1) he is a member of a protected class; (2) he satisfactorily performed the duties of his position; (3) he was subject to an adverse employment action; and (4) the adverse employment action occurred in circumstances giving rise to an inference of discrimination on the basis of his membership in that class. E.g., Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); Tarshis v. Riese Org., 211 F.3d 30, 36 (2d Cir. 2000); Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998).
See also, e.g., Scaria v. Rubin, 117 F.3d 652, 653-54 (2d Cir. 1997); Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851 (1998); Kennebrew v. New York City Hous. Auth., 01 Civ. 1654, 2002 WL 265120 at *13 n. 22 (S.D.N.Y. Feb. 26, 2002) (Peck, M.J.); Williams v. NYC Dep't of Sanitation, 00 Civ. 7371, 2001 WL 1154627 at *16 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.); Gonzalez v. New York City Transit Auth., 00 Civ. 4293, 2001 WL 492448 at *13 (S.D.N.Y. May 9, 2001) (Peck, M.J.); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at *15 (S.D.N.Y. Dec. 6, 2000), aff'd No. 01-7575, 23 Fed. Appx. 82, 2002 WL 4594 (2d Cir. Dec. 21, 2001); Austin v. Ford Models, Inc., 95 Civ. 3731, 2000 WL 1752966 at *11 (S.D.N.Y. Nov. 29, 2000) (Peck, M.J.), aff'd, No. 01-7030, 22 Fed. Appx. 76, 2001 WL 1562070 (2d Cir. Dec. 4, 2001), petition for cert. filed, No. 01-10542 ___ U.S.L.W. ___ (U.S. May 28, 2002); Campbell v. Alliance National Inc., 107 F. Supp.2d 234, 243 (S.D.N.Y. 2000); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 356-57 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.).
"The burden of establishing a prima facie case is not onerous, and has been frequently described as minimal." Scaria v. Rubin, 117 F.3d at 654; accord, e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 2746-47 (1993); Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000).
See also, e.g., Weinstock v. Columbia Univ., 224 F.3d at 42; Austin v. Ford Models, Inc., 149 F.3d at 152; Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 32; Fisher v. Vassar College, 114 F.3d at 1335; Austin v. Ford Models, Inc., 2000 WL 1752966 at *11; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 357.
Viruet has not met these minimal requirements because as a homosexual male he is not a member of a Title VII protected class. "The law is well-settled in [the Second Circuit] and in all others to have reached the question that . . . Title VII does not prohibit harassment or discrimination because of sexual orientation." Simonton v. Runyon, 232 F.3d 33, 35-36 (2d Cir. 2000) ("Because the term 'sex' in Title VII refers only to membership in a class delineated by gender, and not to sexual affiliation, Title VII does not proscribe discrimination because of sexual orientation."); see, e.g., Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 143 (4th Cir. 1996) ("Title VII does not afford a cause of action for discrimination based upon sexual orientation"), abrogated in part on other grounds by, Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998 (1998); Williamson v. A.G. Edwards Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989) ("Title VII does not prohibit discrimination against homosexuals."), cert. denied, 493 U.S. 1089, 110 S.Ct. 1158 (1990); Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) ("Discharge for homosexuality is not prohibited by Title VII. . . .").
See also, e.g., Samborski v. W. Valley Nuclear Servs. Co., No. 99-CV-0213, 2002 WL 1477610 at *3 (W.D.N.Y. June 25, 2002) (sexual orientation discrimination claims "are not actionable under either Title VII or the NYHRL"); Byars v. Jamestown Teachers Ass'n, 195 F. Supp.2d 401, 411 (W.D.N.Y. 2002) ("neither Title VII nor the New York State Human Rights Law provides protection against discrimination on the basis of sexual orientation."); Trigg v. New York City Transit Auth., No. 99-CV-4730, 2001 WL 868336 at *5 (E.D.N.Y. July 26, 2001) (summary judgment granted dismissing Title VII claims based on sexual orientation discrimination "because the Court of Appeals for the Second Circuit has held that Title VII does not prohibit discrimination based on sexual orientation."); Ellenbogen v. Projection Video Servs., Inc., 99 Civ. 11046, 2001 WL 736774 at *13 (S.D.N.Y. June 29, 2001); Rivera v. Apple Indus. Corp., 148 F. Supp.2d 202, 210 n. 4 (E.D.N.Y. 2001) ("Title VII of the Civil Rights Act of 1964 . . . does not prohibit discrimination based on sexual orientation.").
While the Court does not condone harassment based on sexual orientation, even if Viruet were to prove that CAB discriminated against him because he was homosexual, he would fail to establish that he fit into a protected class under Title VII. Accordingly, Viruet fails to meet the first requirement for establishing a prima facie case, and has no sexual orientation discrimination claim under Title VII. CAB is therefore granted summary judgment on Viruet's Title VII claim based on sexual orientation.
See Simonton v. Runyon, 232 F.3d at 35 (The court is "called upon here to construe a statute as glossed by the Supreme Court, not to make a moral judgment.").
III. VIRUET HAS NOT PROVED DISCRIMINATION BASED ON SEXUAL ORIENTATION OR SEX
Sexual orientation discrimination, however, is actionable under New York City law. New York City Administrative Code § 8-107(1) specifically provides:
It shall be an unlawful discriminatory [employment] practice: (a) For an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, sexual orientation or alienage or citizenship status of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment.
N.Y.C. Admin. Code § 8-107(1)(a); see, e.g., Ellenbogen v. Projection Video Servs., Inc., 99 Civ. 11046, 2001 WL 736774 at *13 (S.D.N.Y. June 29, 2001); Levin v. Yeshiva Univ., 96 N.Y.2d 484, 493, 730 N.Y.S.2d 15, 20 (2001) ("the City [Human Rights Law] . . . . specifically prohibits any form of discrimination based on sexual orientation."); Nacinovich v. Tullet Tokyo Forex, Inc., 257 A.D.2d 523, 524, 685 N.Y.S.2d 17, 18 (1st Dep't 1999). In his attachment to his amended complaint, Viruet referred in passing to the New York City Administrative Code's prohibition of discrimination based on sexual orientation. (Dkt. No. 4: Am. Compl., 7/27/01 Attachment at 2.) It was not clear from this isolated statement in Viruet's amended complaint whether he intended to raise a NYCHRL discrimination claim in addition to a Title VII claim. However, in his affidavit opposing CAB's summary judgment motion, Viruet again referred to violation of the City Human Rights Law. (Dkt. No. 31: Viruet 6/6/02 Aff. at 2.) In light of the requirement that the Court liberally construe pro se filings (see page 19 above), and in the interests of federal and state judicial economy, particularly because the analysis for discrimination claims under the NYCHRL largely mirrors that of Title VII claims (and the Court is permitting Viruet to amend his complaint to assert a Title VII sex, as opposed to sexual orientation, claim, see Point V below), the Court will exercise its discretion and address the NYCHRL claim on the merits. See, e.g., Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000) ("Our consideration of claims brought under the state and city human rights laws parallels the analysis used in Title VII claims."); Greenbaum v. Handelsbanken, NY, 67 F. Supp.2d 228, 246 (S.D.N.Y. 1999) (Sotomayor, D.J.) ("Because the evidentiary burdens for establishing sex discrimination under city and state law are identical to those under Title VII, . . . the Court need only address the evidence under the relevant Title VII analysis."); Landwehr v. Grey Adver, Inc., 211 A.D.2d 583, 583, 622 N.Y.S.2d 17, 18 (1st Dep't 1995) (analyzing New York City Administrative Code claim under McDonnell Douglas standards).
A. CAB is Granted Summary Judgment as to Viruet's Discrimination Claims Because Viruet Has Not Submitted Any Evidence of a Hostile Work Environment or Disparate Treatment Based on Sexual Orientation (or Sex)
As this Court has pointed out several times, "while the cases . . . employ the same 'federal' analysis to NYCHRL claims, the 'legislative history' of the NYCHRL makes clear that it is to be even more liberally construed than the federal and state anti-discrimination laws." Brown v. Cushman Wakefield, Inc., 01 Civ. 6637, 2002 WL 1751269 at *22 n. 38 (S.D.N.Y. July 29, 2002) (Peck, M.J.); accord, e.g., Kennebrew v. New York City Hous. Auth., 01 Civ. 1654, 2002 WL 265120 at *7 (S.D.N.Y. Feb. 26, 2002) (Peck, M.J.) (quoting Burger v. Litton, 91 Civ. 0918, 1996 WL 421449 at *18-19 (S.D.N.Y. Apr. 25, 1996) (Peck, M.J.), report rec. adopted, 1996 WL 609421 (S.D.N.Y. Oct. 22, 1996) (Knapp, D.J.)); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 355 n. 5 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.); Hernandez v. New York City Law Dep't Corp. Counsel, 94 Civ. 9042, 1997 WL 27047 at *13-19 n. 10 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.); see also Torres v. Pisano, 116 F.3d 625, 629 n. 1 (2d Cir.) (quoting Burger), cert. denied, 522 U.S. 997, 118 S.Ct. 563 (1997). For purposes of this motion, the Court will utilize the Title VII standard.
A plaintiff alleging discrimination may prevail by proving either that discrimination created a "hostile work environment" or resulted in "disparate treatment." Williams v. NYC Dep't of Sanitation, 00 Civ. 7371, 2001 WL 1154627 at *12 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.). Because Viruet alleges that he was harassed on the job by both clients and coworkers, and that two of his coworkers were treated better than him because they are heterosexual, the Court will analyze Viruet's claims under both of these theories. (Dkt. No. 4: Am. Compl., 7/27/01 Attachment; Dkt. No. 24: Bauer 5/6/02 Aff. Ex. E: Viruet Dep. at 196-98.)
Viruet alleges that one heterosexual coworker "was charged with . . . attempt[ed] assault with a coworker, and he got three months' probation and anger management" class and another heterosexual coworker was accused of "sexual harassment" and "got three months' probation and a sexual harassment class," while Viruet was terminated and not given any additional chances. (Bauer 5/6/02 Aff. Ex. E: Viruet Dep. at 196-98.)
In text, this section of this Opinion cites to Title VII cases; the standard for hostile work environment claims is the same under the NYCHRL as Title VII. See, e.g., Citroner v. Progressive Cas. Ins. Co., No. 99 CV 5532, 2002 WL 1276700 at *8 (E.D.N.Y. June 5, 2002) ("The standards for a hostile work environment claim under Title VII . . . and NYCHRL generally are the same."); Lane v. Collins Aikman Floor Coverings, Inc., 00 Civ. 3241, 2001 WL 1338918 at *5 n. 12 (S.D.N.Y. Oct. 31, 2001) ("The analysis of hostile work environment claims is essentially the same under federal anti-discrimination law and the NYC Administrative Code."); Patterson v. CBS Inc., 94 Civ. 2562, 2000 WL 666337 at *8 (S.D.N.Y. May 22, 2000).
To establish a hostile work environment claim, Viruet must allege that CAB's conduct was:
sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., 510 U.S. 17, 21, 114 S.Ct. 367, 370 (1993) (quoting Mentor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405 (1986)) (internal brackets and quotation marks omitted). The conduct must be intimidating, hostile, or offensive, with discriminatory intimidation, ridicule, and insult permeating the workplace. See Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995). All of the circumstances must be considered; a reasonable person would have to find the environment hostile or abusive, and the victim must have subjectively so perceived it. See Harris v. Forklift Sys., 510 U.S. 17, 21-23, 114 S.Ct. 367, 370-71 (1993); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995).
Gallagher v. Delaney, 139 F.3d 338, 346-47 (2d Cir. 1998); accord Dayes v. Pace Univ., No. 00-7641, 2 Fed. Appx. 204, 207, 2001 WL 99831 at *1 (2d Cir. Feb. 5, 2001); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69-71 (2d Cir. 2000); Howley v. Town of Stratford, 217 F.3d 141, 153-54 (2d Cir. 2000); Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 437-40 (2d Cir. 1999). "Conduct that is 'merely offensive' and 'not severe or pervasive enough to create an objectively hostile or abusive work environment'" is insufficient to establish a Title VII discrimination claim. Torres v. Pisano, 116 F.3d at 631; accord, e.g., Williams v. NYC Dep't of Sanitation, 2001 WL 1154627 at *13; see also, e.g., Dayes v. Pace Univ., 2001 WL 99831 at *1 (Defendant's "comments and behavior, although boorish and inappropriate, simply do not rise to the level of behavior necessary for a jury reasonably to conclude that they were sufficiently severe or pervasive to alter the condition of [plaintiff]'s employment.").
See also, e.g., Torres v. Pisano, 116 F.3d 625, 630 (2d Cir.), cert. denied, 522 U.S. 997, 118 S.Ct. 563 (1997); Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033, 1042 (2d Cir. 1993); Williams v. NYC Dep't of Sanitation, 00 Civ. 7371, 2001 WL 1154627 at *12-13 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.); Adeniji v. Administration for Children Servs., 43 F. Supp.2d 407, 421 (S.D.N.Y.) (Wood, D.J. Peck M.J.), aff'd No. 99-7561, 201 F.3d 430 (table), 1999 WL 1070027 (2d Cir. Nov. 18, 1999).
Isolated incidents of discriminatory comments or conduct is not sufficient to establish a hostile work environment. E.g., Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 2283 (1998) ("'simple teasing,' . . . off hand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment.'"); Harris v. Forklift Sys., Inc., 510 U.S. at 21, 114 S.Ct. at 370 ("'mere utterance of an . . . epithet which engenders offensive feelings in an employ,' . . . does not sufficiently affect the conditions of employment to implicate Title VII"); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998) ("As a general matter, 'isolated remarks or occasional episodes of harassment will not merit relief under Title VII; in order to be actionable, the incidents of harassment must occur in concert or with a regularity that can reasonably be termed pervasive.'"); Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) ("For racist comments, slurs, and jokes to constitute a hostile work environment, there must be 'more than a few isolated incidents of racial enmity,' . . . meaning that '[i]nstead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments. . . .'"); Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986) ("To establish a hostile atmosphere . . . plaintiffs must prove more than a few isolated incidents of racial enmity."). Lane v. Collins Aikman Floor Coverings, Inc., 2001 WL 1338918 at *5-6 (summary judgment granted dismissing plaintiff's hostile work environment claim under NYCHRL prohibiting sexual orientation discrimination, where defendants made "homophobic statements" or "gestures" in his presence, such as "wrist dropping, lisping" and comments regarding "fags," because "[c]onsidering the 'totality of the circumstances,'" "the workplace Plaintiff describes cannot, as a matter of law, be said to be permeated with discriminatory intimidation, ridicule, and insult that is sufficiently pervasive to alter the conditions of [Plaintiff's] employment and create an abusive working environment."); Patterson v. CBS, Inc., 2000 WL 666337 at *8 (dismissing plaintiff's sexual orientation discrimination claim under NYCHRL, because "the discriminatory conduct to which [plaintiff] refers are merely isolated incidents of offensive comments which did not sufficiently affect the conditions of his employment to suggest a hostile environment.").
See also, e.g., Williams v. NYC Dep't of Sanitation, 2001 WL 1154627 at *13; Adeniji v. Administration for Children Servs., 43 F. Supp.2d at 421; Pomilio v. Wachtell Lipton Rosen Katz, 97 Civ. 2230, 1999 WL 9843 at *6 (S.D.N.Y. Jan. 11, 1999) ("plaintiff's allegations . . . do not establish hostile work environment harassment. . . . [A]lthough plaintiff may have found some of her employers' alleged comments objectionable, those comments were 'sufficiently isolated and discrete that a trier of fact could not reasonably conclude that they pervaded [plaintiff's] work environment.'"); Carter v. Cornell Univ., 976 F. Supp. 224, 232 (S.D.N.Y. 1997), aff'd No. 97-9180, 159 F.3d 1345 (table), 1998 WL 537842 (2d Cir. July 9, 1998); Smith v. Planas, 975 F. Supp. 303, 309 (S.D.N.Y. 1997); O'Connor v. Viacom Inc., 93 Civ. 2399, 1996 WL 194299 at *5 (S.D.N.Y. Apr. 23, 1996) ("three isolated remarks, the only proffered evidence of national origin discrimination, are insufficient to establish pretext," citing cases), aff'd No 93-7641, 104 F.3d 356 (table), 1996 WL 722620 (2d Cir. 1996).
Viruet claims his "superiors" often challenged him and reminded him that he did not have a GED, and that he experienced "several run-ins with the prior Facility Director . . . for trying to stand up for" himself. (Dkt. No. 24: Bauer 5/6/02 Aff. Ex. D: Viruet EEOC Charge of Discrimination, Addendum at 1.) Viruet also refers to the December 1999 incident in which Auwarter asked Viruet if he had AIDS or HIV. (See page 4 above.) Viruet further asserts that CAB clients were allowed to call him "faggot" and "inconsiderate," without CAB doing anything about it. (Ex. D: Viruet EEOC Charge of Discrimination, Addendum at 1.) Viruet's claim has no merit.
First, Viruet acknowledges that his "run-ins" with his supervisors were due to his strong personality and his "trying to stand up for" himself rather than any bias due to his sexual orientation. See e.g., Williams v. NYC Dep't of Sanitation, 2001 WL 1154627 at *15 ("Of course, 'unfair' treatment or personal animosity is not actionable, only discriminatory treatment is."); Gonzalez v. New York City Transit Auth., 00 Civ. 4293, 2001 WL 492448 at *14 (S.D.N.Y. May 9, 2001) (Peck, M.J.) (Plaintiff's "own allegations expressly claim that any disparate treatment was due, not to discrimination, but to personal and professional animosity."); Gorley v. MetroNorth, 99 Civ. 3240, 2000 WL 1876909 at *7 (S.D.N.Y. Dec. 22, 2000) ("Even if [plaintiff's supervisor] did harbor personal animosity against plaintiff . . . Title VII provides relief only for racial discrimination, not fickleness."), aff'd, No. 01-7100, 29 Fed. Appx. 764, 2002 WL 355909 (2d Cir. Mar. 6, 2002); Terry v. United States, 98 Civ. 8249, 2000 WL 204522 at *12 (S.D.N.Y. Feb. 18, 2000) ("the incidents plaintiff describes appear to be attributable to personal animosity, which is not actionable under federal discrimination statutes"); Gibson v. Brown, No. 97-CV-3026, 1999 WL 1129052 at *12 (E.D.N.Y. Oct. 19, 1999) ("'Personal animosity is not the equivalent of . . . discrimination and is not proscribed by Title VII. The plaintiff cannot turn a personal feud into a . . . discrimination case by accusation.'"), aff'd mem., 242 F.3d 365 (2d Cir. 2000); Baber v. Runyon, 97 Civ. 4798, 1998 WL 912065 at *7 (S.D.N.Y. Dec. 30, 1998) ("Personal animosity is not actionable discrimination.").
Comments about Viruet's lack of a GED are not discriminatory on the basis of sex or sexual orientation; the less-educated are not a protected class under Title VII or the NYCHRL. See e.g., Ogbo v. New York State Dep't of Fin., 99 Civ. 9387, 2001 WL 986546 at *778 (S.D.N.Y. Aug. 28, 2001) (summary judgment granted for defendant where plaintiff's supervisor "cursed at him and insulted him with names like 'horse's ass' and 'dummy'" because "plaintiff has not met his burden of showing that these alleged comments were motivated by discrimination, a necessary ingredient since an abusive workplace, without more, is not actionable under Title VII."); Oliveira v. State Dep't of Children Families, No. 3:97CV412, 2000 WL 565489 at *3-4 (D. Conn. Mar. 28, 2000) (summary judgment granted for defendant where supervisor called employee "'incompetent' and the 'worst worker [her supervisor] had ever come across in her life,' and [told] her 'there are no jobs out there' for people 'like her'" because none of the supervisor's comments, while offensive, were "actionable under Title VII on the basis of a hostile work environment" and "none of these incidents made any direct reference to the plaintiff's national origin," which was the basis of plaintiff's Title VII discrimination claim. Furthermore, "the comments and actions must have adversely affected the work performance and the well-being of a reasonable person" to be actionable and "[t]hey do not meet this objective test.").
Moreover, isolated remarks such as Auwarter's — even if his question could be considered a discriminatory remark, which is questionable — are not "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., 510 U.S. 17, 21, 114 S.Ct. 367, 370 (1993); see cases cited on pages 33-35 above; Feingold v. State, 01 Civ. 3387, 2002 WL 1751098 at *2, 5 (S.D.N.Y. July 26, 2002) ("Plaintiff alleges that on three occasions during his eight months [of employment], plaintiff heard the word 'fag' or 'faggot' used in his presence, though not directed at him." Other employees "advised plaintiff not to be 'openly gay'" and "made veiled references to plaintiff's homosexuality that plaintiff perceived as hostile and discriminatory. . . . [T]he sporadic and indirect slurs on homosexuality . . . while offensive, do not remotely rise to a level so 'severe or pervasive' as to support a hostile environment claim."); Trigg v. New York City Transit Auth., 99 Civ. 4730, 2001 WL 868336 at *2-3, 8-9 (E.D.N.Y. July 26, 2001) (comments by co-employee that plaintiff cashier needed to carry "a 45 pound bag of coins . . . 'more manly,'" and that he was a "faggot ass" were the "isolated, sporadic and gender-related utterances of an intolerant, narrow-minded man," but not "sufficiently severe nor pervasive to establish a hostile working environment claim.").
Cf. Rutkowski v. Sears Roebuck Corp., No. 99-9219, 210 F.3d 355 (table), 2000 WL 354223 at *4 (2d Cir. Apr. 6, 2000) (No hostile environment sexual harassment claim where (1) "coworkers continued to refer to [plaintiff] as 'Barbie'"; (2) plaintiff's "supervisor . . . behaved coldly towards her"; and (3) "a coworker told [plaintiff] of a rumor that [the wife of the coworker who had been harassing her] 'carries a gun and she is not afraid to use it especially when it comes to her family.'").
Furthermore, CAB cannot be held liable for any sex or sexual orientation-based disparaging remarks by its clients on the facts here. "According to the EEOC Guidelines, '[a]n employer may . . . be held responsible for the acts of non-employees, with respect to sexual harassment in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate or appropriate corrective action.'" Kudatzky v. Galbreath Co., 96 Civ. 2693, 1997 WL 598586 at *4 (S.D.N.Y. Sept. 23, 1997) (quoting 29 C.F.R. § 1604.11 (e)); see also, e.g., Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 250 (2d Cir. 1995) (affirming dismissal of dental student's complaint of sex discrimination and harassment based on allegations involving a patient in school dental clinic because "drawing all reasonable inferences in [plaintiff]'s favor, the complaint fails to allege that even [dental school]'s agents knew or should have known of the continued harassment"); Flower v. Mayfair Joint Venture, 95 Civ. 1744, 2000 WL 272187 at *9 (S.D.N.Y. Mar. 13, 2000) ("[I]t is not yet clear in the Second Circuit whether an employer owes a duty to employees subjected to harassment by non-employees . . . . [S]hould the duty in fact exist, it would be no greater than the duty owed in the coworker harassment cases" which means that an "'employer will generally not be liable unless the employer either provided no reasonable avenue of complaint or knew of the harassment but did nothing about it.'"); Hylton v. Norrell Health Care, 53 F. Supp.2d 613, 618-19 (S.D.N.Y. 1999) (employer nursing service not liable under Title VII for harassment of employee by patient's son). To hold CAB liable for the comments of its clients, Viruet would have to "adduce evidence tending to show that [CAB] either failed to provide a reasonable complaint procedure or that it knew of [his] harassment (either by co-workers or customers) and failed to take any action." Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766-67 (2d Cir. 1998), abrogated in part on other grounds by, National R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061 (2002); see also, e.g., Williams v. Astra USA, Inc., 68 F. Supp.2d 29, 35 (D. Mass. 1999) (employer not liable for the "alleged racially discriminatory acts of third parties [including current and potential customers] with whom [employer] has no affiliation and over whom [employer] has no control or influence.") As the EEOC guidelines instructed, "[I]n determining whether to impose liability the court should consider 'the extent of the employer's control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees.'" Kudatzky v. Galbreath Co., 1997 WL 598586 at *4 (quoting 29 C.F.R. § 1604.11 (e)). Viruet has not proffered any evidence that he complained to CAB supervisors about clients' use of sexual orientation or sex-based derogatory language towards him, nor has he shown that CAB knew about any inappropriate client language. Rather, Viruet himself admitted that he has a "strong character" which results in confrontations with clients. (See page 9 above.) Indeed, the Monthly Progress Report evaluations of Viruet noted his problems interacting with clients and his comments/goals about improving in that area, but it is clear that this referred to clients getting upset about his job of confiscating bags, and there is no reference to clients making sexual or sexual-orientation derogatory comments to Viruet. (See pages 8-10 above.) Importantly, CAB was running a shelter for the homeless, many of whom were "severely mentally ill." (Viruet SJ Docs.: 7/28/00 Performance Appraisal Review Form at 4.) As such, CAB could be expected to have little or no control over clients' language and behavior.
Accordingly, CAB is granted summary judgment on Viruet's hostile work environment sex/sexual orientation discrimination claim under the NYCHRL (and Title VII).
The standards for a disparate treatment claim under Title VII and the NYCHRL are generally the same. See Ghose v. Century 21, Inc., No. 00-9165, 12 Fed. Appx. 52, 55, 2001 WL 682369 at *3 (2d Cir. June 14, 2001) (affirming dismissal of disparate treatment claim under New York City law because "analysis of [plaintiff's] federal Title VII claim disposes of his parallel New York State and New York City claims."); Shannon v. Fireman's Fund Ins. Co., 156 F. Supp.2d 279, 287 n. 6, 291-94 (S.D.N.Y. 2001) (applying federal analysis to NYCHRL disparate treatment claims).
Construing his submissions liberally, Viruet claims that he was penalized more harshly for violating CAB policy than two heterosexual coworkers (Bauer 5/6/02 Aff. Ex. E: Viruet Dep. at 196-97), and thus may be raising a disparate treatment claim.
A disparate treatment claim is one in which the employer "simply treats some people less favorably than others because of their race, color [or] religion," or other protected characteristic. Hazen Paper Co. v. Biggins, 507 U.S. 604, 609, 113 S.Ct. 1701, 1705 (1993); see also, e.g., Williams v. NYC Dep't of Sanitation, 00 Civ. 7371, 2001 WL 1154627 at *15 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.); Adeniji v. Administration for Children Servs., 43 F. Supp.2d 407, 424 (S.D.N.Y.) (Wood, D.J. Peck M.J.), aff'd No. 99-7561, 201 F.3d 430 (table), 1999 WL 1070027 (2d Cir. Nov. 18, 1999).
In order to establish a prima facie case of disparate treatment discrimination in violation of Title VII (or the NYCHRL), a plaintiff must show that: (1) he is a member of a protected class; (2) he satisfactorily performed the duties of his position; (3) he was subject to an adverse employment action; and (4) the adverse employment action occurred in circumstances giving rise to an inference of discrimination on the basis of his membership in that class. E.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106 (2000); Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000).
See also, e.g., Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000); Carlton v. Mystic Transport., Inc., 202 F.3d 129, 134 (2d Cir.), cert. denied, 530 U.S. 1261, 120 S.Ct. 2718 (2000); Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998); Norton v. Sam's Club, 145 F.3d 114, 118 (2d Cir.), cert. denied, 525 U.S. 1001, 119 S.Ct. 511 (1998); Grady v. Affiliated Central, Inc., 130 F.3d 553, 559 (2d Cir. 1997), cert. denied, 525 U.S. 936, 119 S.Ct. 349 (1998); Rankin v. Wyatt Co., 125 F.3d 55, 63-64 (2d Cir. 1997); Scariav. Rubin, 117 F.3d 652, 653-54 (2d Cir. 1997); Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851 (1998); Williams v. NYC Dep't of Sanitation, 2001 WL 1154627 at *16; Gonzalez v. New York City Transit Auth., 00 Civ. 4293, 2001 WL 492448 at *13 (S.D.N.Y. May 9, 2001) (Peck, M.J.); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at *15 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.), aff'd, No. 01-7575, 23 Fed. Appx. 82, 2002 WL 4594 (2d Cir. Dec. 21, 2001); Austin v. Ford Models, Inc., 95 Civ. 3731, 2000 WL 1752966 at *11 (S.D.N.Y. Nov. 29, 2000) (Peck, M.J.), aff'd, No. 01-7030, 22 Fed. Appx. 76, 2001 WL 1562070 (2d Cir. Dec. 4, 2001), petition for cert. filed, No. 01-10542 ___ U.S.L.W. ___ (U.S. May 28, 2002); Campbell v. Alliance National Inc., 107 F. Supp.2d 234, 243 (S.D.N.Y. 2000); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 356-57 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.).
"The burden of establishing a prima facie case is not onerous, and has been frequently described as minimal." Scaria v. Rubin, 117 F.3d at 654; accord, e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 2746-47 (1993); Schnabel v. Abramson, 232 F.3d at 87.
See also, e.g., Weinstock v. Columbia Univ., 224 F.3d at 42; Austin v. Ford Models, Inc., 149 F.3d at 152; Rankin v. Wyatt Co., 125 F.3d at 64; Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 32 (2d Cir. 1994); Fisher v. Vassar College, 114 F.3d at 1335; Williams v. NYC Dep't of Sanitation, 2001 WL 1154627 at *16; Gonzalez v. New York City Transit Auth., 2001 WL 492448 at *13; Cobian v. New York City, 2000 WL 1782744 at *16; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 357.
For the purposes of this analysis, the Court assumes that Viruet performed his job satisfactorily (satisfying the second prong) and that he was subject to an adverse employment action because he was terminated (satisfying the third prong).
However, Viruet still fails to satisfy the fourth prong. Viruet essentially claims that he was disciplined more harshly than two of his heterosexual coworkers who also violated CAB policy. (See pages 32 41 above.) Viruet alleges that one coworker "was charged with . . . attempt[ed] assault with a coworker, and he got three month's probation and anger management" class while another coworker was charged with "sexual harassment, [and] got three months' probation and a sexual harassment class." (Dkt. No. 24: Bauer 5/6/02 Aff. Ex. E: Viruet Dep. at 196.) Viruet claims that CAB discriminated against him by not giving him probation after he "violated a company policy," as CAB did his heterosexual coworkers. (Id. at 197.)
Although Viruet was not given an official probationary period, he was previously counseled about personal involvement with clients and was thus given the opportunity to prove he could maintain a professional distance between himself and CAB clients and was warned that failure to do so could result in his termination. (CAB 56.1 Stmt. ¶ 4; see also page 7 above.)
Moreover, to establish a disparate treatment claim, the employees that Viruet compares himself to "must have a situation sufficiently similar to plaintiff's to support at least a minimal inference that the difference of treatment may be attributable to discrimination." McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001); see, e.g., Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000) ("to satisfy [the] 'all material respects' standard for being similarly situated, a plaintiff must show that her co-employees were subject to the same performance evaluation and discipline standard. . . . In addition, the standard . . . requires plaintiff to show that similarly situated employees who went undisciplined engaged in comparable conduct." Factors include "whether the conduct for which the employer imposed discipline was of comparable seriousness. . . . [T]here should be an 'objectively identifiable basis for comparability.'"); Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997) ("To be 'similarly situated,' the individuals with whom [plaintiff] attempts to compare herself must be similarly situated in all material respects."); Levin v. Yeshiva Univ., 96 N.Y.2d 484, 493-96, 730 N.Y.S.2d 15, 21-23 (2001) (to identify "similarly-situated" groups for a disparate impact sexual orientation claim under NYCHRL, "there must be a comparison that includes consideration of the full composition of the class actually benefitted under the challenged policy" and challenged policy must "disproportionally burden lesbians and gay men" when compared to heterosexuals); Berner v. Gay Men's Health Crisis, 743 N.Y.S.2d 99, 100 (1st Dep't 2002) (summary judgment was granted dismissing employee's claim of disparate treatment discrimination under NYCHRL where supervisor's comment that heterosexual plaintiff "lacked passion for the job because 'it wasn't part of [her] community'" did not imply "that since the heterosexual community is not afflicted with AIDS, individual heterosexuals such as plaintiff were not up to the job. . . . [rather] it was a comment on plaintiff's shortcomings with respect to her job.").
Viruet fails to meet this standard on two fronts. First, he has not presented any evidence that he is similarly situated to the two coworkers who received probationary discipline for violating CAB policies. The only facts that Viruet's deposition reveals is that the employees who received probation were "coworkers" and that they were "heterosexual" (Dkt. No. 24: Bauer 5/6/02 Aff. Ex. E: Viruet Dep. at 196.) Viruet has not submitted any evidence indicating whether their jobs were similar, or any evidence regarding the heterosexual coworkers employment histories, background, or the facts of their individual disciplinary cases. The Court has no information to judge the seriousness of the conduct in which they engaged as compared to Viruet's misconduct in having a personal relationship with a CAB client. Indeed, CAB has submitted evidence that at least two other employees were discharged for committing the same infraction as Viruet. (Dkt. No. 23: Torres 5/6/02 Aff. ¶ 13.)
Viruet has failed to establish a prima facie case of disparate treatment discrimination.
B. Step 2: Even If Viruet Had Stated a Prima Facie Case, CAB Met Its Burden to State a Legitimate Non-Discriminatory Reason for its Actions
Even if Viruet had met the minimal requirements for establishing a prima facie case (which he did not), CAB has met its burden to articulate a legitimate, non-discriminatory reason for Viruet's termination. An employee's failure to abide by regulations requiring that he maintain a professional distance from clients and refrain from transporting clients in his car is a legitimate, nondiscriminatory reason for suspension, as long as such discipline is uniformly applied. See, e.g., Shumway v. United Parcel Servs., Inc., 118 F.3d 60, 64-65 (2d Cir. 1997) (affirming summary judgment for employer where, even assuming that plaintiff "could show a prima facie case of sexual discrimination, [employer] has offered a legitimate, nondiscriminatory reason for terminating [plaintiff's] employment. [Plaintiff] admits that she was aware of the 'no fraternization' policy; that the policy was emphasized at the supervisory training course; that she had been warned about the policy by another supervisor who had heard rumors of her relationship with [another employee] and that she initially lied [about the relationship. Plaintiff] acknowledges, as she must, that despite her knowledge of [employer's] policy regarding fraternization, she flagrantly violated it."). "Of course, '[t]his Court may not second-guess an employer's non-discriminatory business decisions, regardless of their wisdom.'" Kennebrew v. New York City Hous. Auth., 01 Civ. 1654, 2002 WL 265120 at *13 (S.D.N.Y. Feb. 26, 2002) (quoting Williams v. NYC Dep't of Sanitation, 00 Civ. 7371, 2001 WL 1154627 at *18 n. 29 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.) (citing cases)).
See also, e.g., Williams v. NYC Dep't of Sanitation, 00 Civ. 7371, 2001 WL 1154627 at *17 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.) ("An employee's failure to abide by regulations requiring that he remain available by phone and at home during sick leave is a legitimate, non-discriminatory reason for suspension, as long as such discipline is uniformly applied."); Sergilus v. Covenant House Under 21, 96 Civ. 6210, 1999 WL 717274 at *1 (S.D.N.Y. Sept. 15, 1999) ("Theft is a legitimate, nondiscriminatory reason to discharge an employee."); Fierro v. Saks Fifth Avenue, 13 F. Supp.2d 481, 489 (S.D.N.Y. 1998) (summary judgment for employer where plaintiff failed to show discharge for minor theft was a pretext for discrimination).
In light of Viruet's admitted violation of CAB's policy prohibiting personal involvement with clients and CAB's termination of two other employees for the same violation (see page 14 above), CAB's articulated reasons for Viruet's termination are sufficient to meet its burden of production at the second McDonnell Douglas step.
C. Step 3: Plaintiff Viruet's Burden to Show Pretext for Discrimination
Once the defendant carries its burden of production by articulating legitimate, nondiscriminatory reasons for its actions, as CAB has done here, "[t]he plaintiff then has 'the full and fair opportunity to demonstrate,' . . . 'that the proffered reason was not the true reason for the employment decision,'" but was in fact a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08, 113 S.Ct. 2742, 2747 (1993) (citation omitted). "[T]he plaintiff, in order to defeat summary judgment, must present evidence sufficient to allow a rational factfinder to infer that the employer was actually motivated in whole or in part by . . . discrimination." Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997), cert. denied, 525 U.S. 936, 119 S.Ct. 349 (1998). "In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, '[i]t is not enough . . . to disbelieve the employer; the factfinder must [also] believe the plaintiff's explanation of intentional discrimination.'" Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (citation omitted, alterations in original). In order to demonstrate a pretext, Viruet may rely, as he is entitled to do, on the same evidence used in his attempt to build a prima facie case. Kerzer v. Kingly Mfg., 156 F.3d 396, 402 (2d Cir. 1998) (citing Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d at 1225).
Accord, e.g., Kennebrew v. New York City Hous. Auth., 01 Civ. 1654, 2002 WL 265120 at *14 (S.D.N.Y. Feb. 26, 2002) (Peck, M.J.); Williams v. NYC Dep't of Sanitation, 00 Civ. 7371, 2001 WL 1154627 at *18 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.); Gonzalez v. New York City Transit Auth., 00 Civ. 4293, 2001 WL 492448 at *16 (S.D.N.Y. May 9, 2001) (Peck, M.J.); Economou v. Caldera, 99 Civ. 12117, 2000 WL 1844773 at *26 (S.D.N.Y. Dec. 18, 2000) (Peck, M.J.); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at *12 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.), aff'd, No. 01-7575, 23 Fed. Appx. 82, 2002 WL 4594 (2d Cir. Dec. 21, 2001); Austin v. Ford Models, Inc., 95 Civ. 3731, 2000 WL 1752966 at *12 (S.D.N.Y. Nov. 29, 2000) (Peck, M.J.), aff'd, No. 01-7030, 22 Fed. Appx. 76, 2001 WL 1562070 (2d Cir. Dec. 4, 2001), petition for cert. filed, No. 01-10542, ___ U.S.L.W. ___ (U.S. May 28, 2002); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 358 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.); Scaria v. Rubin, 94 Civ. 3333, 1996 WL 389250 at *9 (S.D.N.Y. July 11, 1996) (Peck, M.J.), aff'd, 117 F.3d 652, 653-54 (2d Cir. 1997).
Accord, e.g., Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998); Norton v. Sam's Club, 145 F.3d 114, 118 (2d Cir.), cert. denied, 525 U.S. 1001, 119 S.Ct. 511 (1998); Kennebrew v. New York City Hous. Auth., 2002 WL 265120 at *14; Williams v. NYC Dep't of Sanitation, 2001 WL 1154627 at *18; Gonzalez v. New York City Transit Auth., 2001 WL 492448 at *16; Austin v. Ford Models, Inc., 2000 WL 1752966 at *12; Economou v. Caldera, 2000 WL 1844773 at *13; Cobian v. New York City, 2000 WL 1782744 at *8; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 358; see, e.g., St. Mary's v. Hicks, 509 U.S. at 515, 113 S.Ct. at 2752 (a proffered "reason cannot be proved to be 'a pretext for discrimination' unless it is shown both that the reason was false and that discrimination was the real reason"); Scaria v. Rubin, 117 F.3d at 654; Fisher v. Vassar College, 114 F.3d 1332, 1339 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851 (1998); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1225 (2d Cir. 1994); see also cases cited at pages 25-27 above.
Accord, e.g., Kennebrew v. New York City Hous. Auth., 2002 WL 265120 at *14; Williams v. NYC Dep't of Sanitation, 2001 WL 1154627 at *18; Austin v. Ford Models, Inc., 2000 WL 1752966 at *12.
The Second Circuit has "h[e]ld that the Supreme Court's decision in Reeves clearly mandates a case-by-case approach, with a [district] court examining the entire record to determine whether the plaintiff could satisfy his 'ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.'" Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-48, 120 S.Ct. 2097, 2108-09 (2000); see cases cited at page 26 above.
Viruet admits he violated CAB's policy regarding transporting clients and has offered no evidence that would indicate CAB's reason for terminating him was a pretext for discrimination. CAB had warned Viruet that if he continued to violate CAB policy regarding interaction with clients he would be fired (see pages 7-10 above), and CAB fired other employees for violating the same policy (see pages 14, 45 above). Viruet's prima facie case is weak; CAB's explanation of its conduct is strong; and Viruet's evidence simply does not create an inference of discrimination sufficient to defeat CAB's summary judgment motion. E.g., Norton v. Sam's Club, 145 F.3d 114, 119 (2d Cir.) (Plaintiff's "very weak prima facie case, combined with an at best dubious showing of pretext, that in itself does not implicate discrimination, is simply not enough to support the jury's conclusion that he was fired because of his age."), cert. denied, 525 U.S. 1001, 119 S.Ct. 511 (1988).
See also, e.g., Austin v. Ford Models, Inc., 2000 WL 1752966 at *15; Faldetta v. Lockheed Martin Corp., 98 Civ. 2614, 2000 WL 1682759 at *11 (S.D.N.Y. Nov. 9, 2000); Chudnovsky v. Prudential Sec., Inc., 98 Civ. 7753, 2000 WL 1576876 at *9 (S.D.N.Y. Oct. 23, 2000); Simmons v. ATT, Inc., 96 Civ. 2844, 1998 WL 751659 at *8 (S.D.N.Y. Oct. 28, 1998), aff'd mem., 182 F.3d 901 (2d Cir. 1999).
Thus, because CAB had a legitimate reason for terminating Viruet, and Viruet has not proven that CAB's reason was pretextual, CAB is granted summary judgment on Viruet's Title VII and NYCHRL sex/sexual orientation discrimination claims.
IV. CAB IS GRANTED SUMMARY JUDGMENT AS TO VIRUET'S RETALIATION CLAIM BECAUSE VIRUET FAILED TO FILE SUCH A CLAIM BEFORE THE EEOC, AND THE CLAIM IS WITHOUT MERIT
Viruet asserts a claim for retaliation in his amended complaint. (Dkt. No. 4: Am. Compl. ¶¶ 4, 8 7/27/01 Attachment; see also Dkt. No. 31: Viruet 6/6/02 Aff. at 2.) However, because Viruet failed to present such a claim to the EEOC, he is now barred from bringing a Title VII retaliation claim.
Generally, "[a] plaintiff may bring an employment discrimination action under Title VII . . . only after filing a timely charge with the EEOC. . . . Exhaustion of remedies is a precondition to suit, Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000), and a plaintiff typically may raise in a district court complaint only those claims that either were included in or are 'reasonably related to' the allegations contained in her EEOC charge." Holtz v. Rockefeller Co., 258 F.3d 62, 82-84 (2d Cir. 2001) (retaliation and religious discrimination claims dismissed because plaintiff's EEOC charge was "entirely silent" about those allegations) (citing Butts v. City of New York Dep't of Hous. Pres. Dev., 990 F.2d 1397, 1401 (2d Cir. 1993)); see, e.g., Wilson v. Fairchild Republic Co., 143 F.3d 733, 739 (2d Cir. 1998).
Here, Viruet's EEOC charge was filed after he was fired by CAB, but Viruet only checked the "sex" and "disability" boxes, not the "retaliation" box. (Dkt. No. 24: Bauer 5/6/02 Aff. Ex. D: Viruet EEOC Charge of Discrimination at 1.) Therefore, because he did not file a retaliation claim with the EEOC, Viruet is precluded from bringing a Title VII retaliation claim in federal court. See, e.g., Kennebrew v. New York City Hous. Auth., 01 Civ. 1654, 2002 WL 265120 at *17 (S.D.N.Y. Feb. 26, 2002) (Peck, M.J.) (where plaintiff did not file EEOC charge until after plaintiff was fired, "her firing cannot be in retaliation for an EEOC complaint that had not yet been made.") (citing cases); Adeniji v. Administration for Children Servs., 43 F. Supp.2d 407, 428-29 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.) (citing cases), aff'd, No. 99-7561, 201 F.3d 430 (table), 1999 WL 1070027 (2d Cir. Nov. 18, 1999); Gonzalez v. New York City Transit Auth., 00 Civ. 4293, 2001 WL 492448 at *18 n. 46 (S.D.N.Y. May 9, 2001) (Peck, M.J.); Hernandez v. New York City Law Dep't Corp. Counsel, 94 Civ. 9042, 1997 WL 27047 at *8 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.). Accordingly, CAB is granted summary judgment on Viruet's Title VII retaliation claim.
Unlike Title VII, the NYSHRL and NYCHRL do not require exhaustion of administrative remedies. To the contrary, [City law] provide[s] an election of forums, either administrative or judicial, such that a plaintiff who files a complaint with the . . . City Human Rights Divisions may not then bring suit in court." Hernandez v. New York City Law Dep't Corp. Counsel, 1997 WL 27047 at *10. Because Viruet's complaint can be read as raising a retaliation claim under the NYCHRL as well, in the interest of judicial economy (see fn.6 above), the Court will address Viruet's retaliation claim on the merits.
Retaliation claims brought under the NYCHRL "are analyzed according to the burden-shifting framework laid out in McDonnell-Douglas." Dooner v. Keefe, Bruyette Woods, Inc., 157 F. Supp.2d 265, 284 (S.D.N.Y. 2001).
In order to establish "a prima facie case of retaliation, a plaintiff must show: (1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action." Dooner v. Keefe, Bruyette Woods, Inc., 157 F. Supp.2d at 284; see. e.g., Budzanoski v. Pfizer, Inc., 1996 WL 808066 at *9 (Sup.Ct. N.Y. Co. Dec. 17, 1996).
Even assuming that Viruet's complaint to Mason about Auwarter's allegedly discriminatory comment (see page 5 above) constituted "protected activity," Viruet fails to establish a causal connection between his alleged protected activity and his termination. Under New York law, "[a] causal connection may be established by evidence of retaliatory animus, disparate treatment or a showing of close 'temporal proximity' between the adverse employment act and the filing of the claim." Nacinovich v. Tullett Tokoyo Forex, Inc., No. 107778/96, 1998 WL 1050971 at *6 (Sup.Ct. N.Y. Co. May 18, 1998). Here, the alleged retaliation that Viruet experienced after his oral complaint to Mason are insufficient to establish an inference of discrimination. Nearly one year elapsed between the Auwarter incident and Viruet's termination, during which time Viruet received overall good evaluations and a pay raise, but constant criticism regarding his admitted problems with client relationships, including a near altercation, and personally acknowledged that he needed to improve the way he handled client interactions. (See pages 7-10 above.)
Furthermore, even if Viruet established a prima facie case of retaliation (which he did not), CAB articulated a nondiscriminatory reason (violation of CAB's policy regarding relationships with clients, which Viruet does not dispute) for Viruet's termination. (See pages 45-49 above.)
Accordingly, Viruet's retaliation claim under the NYCHRL fails on the merits.
V. VIRUET'S MOTION TO AMEND HIS COMPLAINT A SECOND TIME TO CLARIFY HIS MISUNDERSTANDING OF "SEX" DISCRIMINATION UNDER TITLE VII IS GRANTED, BUT THE COURT GRANTS CAB SUMMARY JUDGMENT ON THE CLAIM
In his response to CAB's motion for summary judgment, Viruet requested leave to further amend his complaint to explain his perception that Title VII protection against discrimination based on "sex" incorporates "sexual orientation" as well. (Dkt. No. 31: Viruet 6/6/02 Aff. at 6.)
First, Viruet offers no reason why he should be granted leave to amend his complaint at this late date, after discovery has been closed, especially since his pre-suit information from the EEOC explained the difference between sexual orientation and sex discrimination. "Prejudice to the opposing party if the motion is granted has been described as the most important reason for denying a motion to amend. Prejudice may be found, for example, when the amendment is sought after discovery has been closed. . . . Undue delay [and] bad faith . . . are other reasons for denying a motion to amend." Economou v. Caldera, 99 Civ. 12117, 2000 WL 1844773 at *14 (S.D.N.Y. Dec. 18, 2000) (Peck, M.J.) ( authorities cited therein); accord, e.g., Turkenitz v. Metromotion, Inc., 97 Civ. 2513, 1997 WL 773713 at *8-9 (S.D.N.Y. Dec. 12, 1997) (Peck, M.J.); Schnepf v. Siegel, 98 Civ. 1255, 1998 WL 474132 at *1-2 (S.D.N.Y. July 11, 1998) (Peck, M.J.); Berman v. Parco, 986 F. Supp. 195 (S.D.N.Y. 1997) (Peck, M.J.); Priestley v. American Airlines, Inc., 89 Civ. 8265, 1991 WL 64459 at *2 (S.D.N.Y. April 12, 1991) ("Insofar as the proposed claim is not predicated on facts learned after the pleading stage of the litigation, the resulting delay is not excusable. . . . Undue prejudice warrants denial of leave to amend where the proposed claim will significantly increase the scope of discovery when the case is ready for trial."). Here, although Viruet is pro se, he should have known the meaning of "sex" (as opposed to "sexual orientation") as used in Title VII when he filed his original pleading.
Second, an amendment explaining Viruet's confusion between "sex" and "sexual orientation" essentially would be futile. The Court has addressed Viruet's discrimination claim in detail in Point III above. Whether analyzed as a sexual orientation claim under the NYCHRL or a sex discrimination claim under Title VII, the result is the same — Viruet has shown only a single, isolated remark that he views as derogatory and discriminatory, and has not shown that CAB's reason for firing him — his admitted violation of CAB policy regarding personal relations with clients — was a pretext for discrimination.
For a discussion of the legal standard for futility of amendment see, e.g., Finlay v. Simonovich, 97 Civ. 1455, 1997 WL 746460 at *1-2 (S.D.N.Y. Dec. 2, 1997) (Peck, M.J.).
Accordingly, giving Viruet the benefit of the doubt as a pro se party, the Court deems the amended complaint further amended to state a Title VII "sex" discrimination claim, but grants CAB summary judgment on that claim.
VI. CAB IS GRANTED SUMMARY JUDGMENT AS TO VIRUET'S DEFAMATION CLAIM
Viruet alleges that his character was defamed by Auwarter's questioning him about whether he had HIV or AIDS, and that he was further defamed by a Notice of Determination from the New York State Department of Labor denying his request for unemployment insurance benefits. (Dkt. No. 24: Bauer 5/6/02 Aff. Ex. E: Viruet Dep. at 141-143, 175-76; Dkt. No. 4: Am. Compl. ¶ 4 7/27/01 Attachment at 1-2.) Viruet's defamation claim is meritless.
Under New York law, claims involving "libel, slander, [and] false words causing special damages" have a one-year statute of limitations. C.P.L.R. § 215(3); see, e.g., Schafler v. Aloi, No. 01-7936, 31 Fed. Appx. 770, 771, 2002 WL 535075 at *1 (2d Cir. Apr. 10, 2002) (affirming dismissal of slander claims "on the basis of New York's one-year statute of limitations"); Sangvhi v. Frendel, No. 96-CV-5133, 1999 WL 14708 at *1 (E.D.N.Y. Jan. 6, 1999), aff'd, No. 00-7538, 242 F.3d 367 (table), 2000 WL 1804506 (2d Cir. Dec. 7, 2000), cert. denied, 533 U.S. 917, 121 S.Ct. 2523 (2001); Egleston v. Kalamarides, 58 N.Y.2d 682, 684, 458 N.Y.S.2d 530, 530 (1982). The incident with Auwarter occurred in mid-December, 1999. (See page 4 above.) Since Viruet did not file his original complaint until March 1, 2001 (see page 15 above), more than one year after December 1999, his defamation claim concerning Auwarter's question to him clearly is time barred.
Viruet's defamation claim based on Auwarter's question to him would not fare any better on the merits. Under New York law, "there are, generally speaking four elements necessary to establish a prima facie case of slander: (1) an oral defamatory statement of fact, (2) regarding the plaintiff, (3) published to a third party by the defendant, and (4) injury to the plaintiff" Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 61 (2d Cir. 1993) (emphasis added); see, e.g., CYTYC Corp. v. Neuromedical Sys., Inc., 12 F. Supp.2d 296, 301 (S.D.N.Y. 1998) (Parker, D.J.) ("In order to state a claim for defamation, the claimant must allege facts sufficient to support a finding of a published statement concerning the claimant that is both false and defamatory."); Angio-Med. Corp. v. Eli Lilly Co., 720 F. Supp. 269, 272 (S.D.N.Y. 1989). Viruet testified that no one else was present during his conversation with Auwarter. (Dkt. No. 24: Bauer 5/6/02 Aff Ex. E: Viruet Dep. at 175.) Viruet has presented no evidence that Auwarter "published" the allegedly slanderous statement to any third party.
Viruet alleges that the statements made in the Department of Labor's Notice of Determination "had to be written by CAB" because he could not understand how the Department of Labor would have known the alleged reasons for his discharge otherwise. (Bauer 5/6/02 Aff. Ex. E: Viruet Dep. at 142.) CAB argues that "[a]s an initial matter, [the letter] was not created or published by [CAB], and, therefore could not be the basis of a defamation claim against [CAB]." (Dkt. No. 22: CAB Br. at 22.) Regardless, any information CAB communicated to the Department of Labor regarding Viruet's termination is privileged under state law. See, e.g., Pappas v. Air France, 652 F. Supp. 198, 202 (E.D.N.Y. 1986) ("neither [employer's] letter . . . to the New York State Department of Labor nor [manager's] testimony . . . can form the basis of a defamation action" because such communication was privileged under N.Y. law); Simpson v. Oil Transfer Corp., 75 F. Supp. 819, 822 (N.D.N.Y. 1948) (writings between former employer and the Department of Labor regarding "plaintiff's right to unemployment benefits . . . were privileged under the laws of the State of New York, and may not be used in any court therein."); Clegg v. Bon Temps, Ltd., 114 Misc.2d 805, 809, 452 N.Y.S.2d 825, 828 (Civil Court N.Y. Co. 1982) ("The law is clear that when a defendant-employer writes to the Department of Labor concerning a former employee's right to unemployment benefits, that writing is privileged and cannot be the basis for a libel action by the claimant-employee."); see also, e.g., Hinds v. Magna Fabrics, Inc., 96 Civ. 1383, 1997 WL 309378 at *5 (S.D.N.Y. June 9, 1997) ("It is well settled in New York . . . that statements made in quasi-judicial proceedings, including proceedings by agencies such as the EEOC, are protected by an absolute privilege.") Thus, Viruet's defamation claim as to statements to the Department of Labor that Viruet attributes to CAB is dismissed because any information that CAB communicated to the Department of Labor regarding Viruet's eligibility for unemployment benefits was privileged under New York law and cannot provide the basis for a defamation claim.
CONCLUSION
For the reasons set forth above, the Court grants summary judgment to CAB on all claims. The Clerk of Court is directed to enter judgment dismissing the amended complaint.
SO ORDERED.