ON EMPLOYMENT DISCRIMINATION

Concha v. Purchase College State University of New York et al, No. 7:2017cv08501 - Document 55 (S.D.N.Y. 2019):

A.    Discrimination under Title VII, § 1983 and NYSHRL

Title VII makes it unlawful “to fail or refuse to hire or to discharge any individual, or otherwise discriminate 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). The NYSHRL covers analogous discriminatory acts by employers, see N.Y. Exec. Law § 296(1)(a), and “[e]mployment discrimination claims brought under the NYSHRL are analyzed identically to claims under . . .Title VII.” Cooper v. N.Y. State Dep’t of Labor, 819 F.3d 678, 680 n.3 (2d Cir. 2016). Additionally, “[i]n order to establish individual liability under § 1983, a plaintiff must show (a) that the defendant is a ‘person’ acting ‘under the color of state law,’ and (b) that the defendant caused the plaintiff to be deprived of a federal right.” Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004) (citation omitted). Plaintiff’s § 1983 discrimination claim “parallels his Title VII claim” where, as here, the color of law requirement is met.16 Vega v. Hempstead Union Free School District,

15 Moreover, Defendants’ arguments seeking dismissal of these claims were meritorious and grounded in well settled case law in this Circuit. See, e.g., Def. Br. at 21 (correctly noting that individual defendants cannot be sued under Title VII) (citing Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 608 n.8 (2d Cir. 2006)).

16 There is no dispute that the individual defendants were acting under color of state law. See Vega, 801 F.3d at 88 (“A state employee acting in his official capacity is acting ‘under color of state law.’”); Hayut v. State Univ. of N.Y., 352 F.3d 733, 744 (2d Cir. 2003) (“As a general rule, state employment is ... sufficient to render the defendant a state actor.”) (internal quotation marks and citation omitted).

801 F.3d 72, 88 (2d Cir. 2015). Thus, the three-part burden-shifting test laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), applies to Plaintiff’s discrimination claim under all three statutes.

Plaintiff bears the initial burden of establishing a prima facie case of discrimination. To do this, Plaintiff must show: “(1) that he belonged to a protected class; (2) that he was qualified for the position he held; (3) that he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.” Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008). “Once a plaintiff has established a prima facie case . . . [the] burden then shifts to the employer to ‘articulate some legitimate, nondiscriminatory reason’ for the disparate treatment.” Vega, 801 F.3d at 83 (quoting McDonnell Douglas, 411 U.S. at 802). “If the employer articulates such a reason for its actions, the burden shifts back to the plaintiff to prove that the employer’s reason ‘was in fact pretext’ for discrimination.” Id.

i.    Prima Facie Case

Defendants do not contest that Plaintiff has met the first three elements of a prima facie case: (i) he belonged to a protected class; (ii) he was qualified for the position he held within the Grounds Department; and (iii) he suffered an adverse employment action when he was terminated. Defendants, however, argue that Plaintiff cannot show any facts giving rise to an inference of discrimination. (Def. Br. at 26).

To satisfy the fourth element of a prima facie case, Plaintiff must present evidence that gives rise to an inference of discrimination. “A plaintiff can support such an inference by (a) demonstrating that similarly situated employees of a different race or national origin were treated more favorably, (b) showing that there were remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus, or (c) proving that there were other circumstances giving rise to an inference of discrimination on the basis of [the] plaintiff’s race or national origin.” Nguyen v. Dep’t of Corr. & Cmty. Servs., 169 F. Supp. 3d 375, 388 (S.D.N.Y. 2016) (internal quotation marks and citation omitted). “Conclusory and speculative allegations will not suffice to demonstrate discriminatory intent. Rather, a plaintiff must point to facts that suggest that the adverse employment action was motivated, at least in part, by discriminatory animus.” Id. (internal quotation marks and citation omitted). Although, “Plaintiff’s burden in establishing a prima facie case is de minimis . . . a party’s bald assertions, without more, are insufficient to overcome a motion for summary judgment.” Hill v. Rayboy-Brauestein, 467 F. Supp. 2d 336, 350 (S.D.N.Y. 2006) (internal quotation marks and citation omitted).

Plaintiff alleges race and national origin discrimination based on disparate treatment between Hispanic and non-Hispanic Grounds Department employees. (Docket No. 1 at 10). To establish this claim, Plaintiff relies on: (i) his own testimony regarding his experience as a Hispanic employee; (ii) the investigation of the anonymous complaint against Halliday; and (iii) the claim that Esposito was subject to disciplinary proceedings concerning the use of a racial slur. (Pl. Br. at 11–12). At the outset, the Court notes that Esposito’s alleged racial slur is not probative of racial animus because there is nothing in the record that suggests that Esposito, who was a Senior Grounds Worker, was a decisionmaker involved in Plaintiff’s termination. See Quinby v. WestLB AG, No. 04–CV–7406, 2007 WL 3047111, at *1 (S.D.N.Y. Oct.18, 2007) (“Generally speaking, comments by nondecisionmakers cannot be used to establish discriminatory animus.”). Moreover, Plaintiff fails to both identify the nature of the alleged slur and demonstrate whether it reflected a discriminatory animus. See id. (“comments by decisionmakers that do not bear on the decisionmaking process itself, are not pro[b]ative of discriminatory animus.”).

However, Plaintiff’s remaining contentions satisfy the de minimis burden of proof needed to demonstrate a prima facie discrimination claim. “A showing of disparate treatment—that is, a showing that an employer treated plaintiff ‘less favorably than a similarly situated employee outside his protected group’—is a recognized method of raising an inference of discrimination for the purposes of making out a prima facie case.” Mandell v. Cty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003). Here, Plaintiff provides examples of favoritism and disparate treatment between the Hispanic and non-Hispanic employees within the Grounds Department. (Pl. 56.1 at ¶¶ 5–12); see Village of Freeport v. Barrella, 814 F.3d 594, 613 (2d Cir. 2016) (holding that Title VII does not “forbid[ ] favoritism, nepotism, or cronyism, so long as it is not premised on animus against a protected class.”) (emphasis added).  Plaintiff testified that Hispanic employees received harder work assignments and inferior tools than the non-Hispanic employees. (Pl. 56.1 at ¶¶ 5– 12). In addition, Plaintiff claimed that Halliday did not reprimand the non-Hispanic employees for arriving late and fostered a work environment where Hispanic employees were not afforded the same opportunities as the non-Hispanic employees. (Id.).

SUNY Purchase’s investigation of the anonymous complaint corroborates Plaintiff’s allegations. Aure’s report noted that the Hispanic employees in the Grounds Department felt segregated from the non-Hispanic employees. (Docket No. 41-22). Furthermore, the report concluded that Halliday favored certain employees over others. (Id.); Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999) (“A plaintiff may support an inference of race discrimination by demonstrating that similarly situated employees of a different race were treated more favorably.”). Thus, viewing the record in a light favorable to Plaintiff, the Court concludes that Plaintiff has met his burden of “establishing a prima facie [case of discrimination by] showing that he was terminated under circumstances that create an inference of discrimination.” Baguer, 2010 WL 2813632 at *7.

ii.    Legitimate, Non-Discriminatory Reason for Plaintiff’s Termination

The Court next considers whether Defendants have proffered a legitimate, nondiscriminatory reason for Plaintiff’s termination. Under the second step of the McDonnell Douglas analysis, it is the “employer’s burden [] to ‘clearly set forth, through the introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.’” Nguyen, 169 F. Supp. 3d at 392 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993)). “This ‘burden of showing a legitimate[,] non-discriminatory reason for its actions is not a particularly steep hurdle.’” Id. (quoting Brierly v. Deer Park Union Free Sch. Dist., 359 F. Supp. 2d 275, 291 (E.D.N.Y. 2005)) (alteration in original).

Defendants have met their burden of articulating a legitimate, non-discriminatory basis for terminating Plaintiff. Defendants put forward sufficient evidence showing that Plaintiff’s termination was motivated by complaints about his unsatisfactory work performance. See O’Kane v. Lew, No. 10-CV-5325(PKC), 2013 WL 6096775, at *10 (E.D.N.Y. Nov. 20, 2013) (“Poor work performance is well-established as a legitimate, nondiscriminatory reason for firing an employee.”). At least three of Plaintiff’s colleagues complained to Halliday regarding Plaintiff’s work performance prior to Plaintiff’s termination. Santiago Linares told Halliday that: (i) Plaintiff was a bad worker; (ii) he complained about his co-workers; and (iii) he was unwilling to perform the typical tasks that Grounds Department employees performed. (Linares Dec. at ¶¶ 3–5). Linares further stated that Plaintiff did not want to report back to the Grounds Department after completing tasks. (Id.). Michael Koran testified that Plaintiff shouted expletives and threw a leaf blower at him while working. (Def. 56.1 at ¶ 22). Koran disclosed this incident to Halliday and Espinales well before Halliday recommended terminating Plaintiff. Esposito also informed Halliday that Plaintiff’s performance was deficient and that he did not want to work. (Halliday Dep. at 86–87). Complaints of this nature provide a legitimate, non- discriminatory basis for terminating Plaintiff’s probationary employment. See Johnson v. Schmid, 750 F. App’x 12, 17 (2d Cir. 2018) (holding that poor job performance is a legitimate, non-discriminatory reason for firing an employee); Yu v. N.Y.C. Hous. Dev. Corp., 494 Fed. Appx. 122, 126 (2d Cir. 2012) (summary order) (holding that defendants proffered legitimate, non-discriminatory reasons for plaintiff’s termination, including that “he spoke to his coworkers and his supervisor in an unprofessional manner;” “he did not work well with others, particularly on team projects;” and “he failed to follow instructions and often deviated from assigned tasks and questioned the work of others, while failing to complete his own.”); Meiri v. Dacon, 759 F.2d 989, 997 (2d Cir. 1985) (citing “profound inability to get along with her co-workers” as a legitimate non-discriminatory reason for discharge); Bogdan v. N.Y. City Transit Auth., No. 02 Civ. 09587(GEL), 2005 WL 1161812, at *8, (S.D.N.Y. May 17, 2005) (multiple complaints of poor job performance were legitimate, non-retaliatory reasons for employee’s termination). Accordingly, Defendants have satisfied their burden of establishing a legitimate, non- discriminatory reason for Plaintiff’s termination.

iii.    Evidence of Pretext

Since Defendants have set forth legitimate, non-discriminatory reasons for their actions, the burden shifts back to Plaintiff to establish that Defendants’ grounds for terminating Plaintiff are “mere pretext for actual discrimination.” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). This burden is higher than the burden to establish a prima facie case. Nguyen, 169 F. Supp. 3d at 393 (quoting Geoghan v. Long Is. R.R., No. 06–CV–1435, 2009 WL 982451, at *21 (E.D.N.Y. Apr. 9, 2009)).“‘[P]laintiff must produce not simply ‘some’ evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and that more likely than not discrimination was the real reason for the employment action.’” Id. at 394 (quoting Weinstock, 224 F.3d at 42).

Plaintiff’s subjective disagreement with his co-workers’ characterization of his job performance does not create a material issue of fact as to whether Defendants’ asserted reasons for Plaintiff’s termination were pretextual. See Baguer v. Spanish Broad. Sys., Inc., No. 04 Civ. 8393 (RJS), 2010 WL 2813632, at *8 (S.D.N.Y. July 12, 2010), aff’d, 423 F. App’x 102 (2d Cir. 2011) (holding that plaintiff’s argument that he, in fact, “performed his job well does not create a material question of fact as to whether [Defendant’s] asserted reasons for his termination were pretextual.”); Soderberg v. Gunther Int’l, Inc., 124 F. App’x 30, 32 (2d Cir. 2005) (“‘it is not the function of a fact-finder to second-guess business decisions’ regarding what constitutes satisfactory work performance.”) (quoting Dister v. Cont’l Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988)). Where, as here, “plaintiff’s own testimony is the only basis for contesting otherwise strong evidence of valid, non-discriminatory reasons for termination, the evidence of ‘pretext’ cannot alone support a reasonable inference of prohibited discrimination.” Rodriguez v. Am. Friends of Hebrew Univ., Inc., No. 96 Civ. 0240(GEL), 2000 WL 1877061, at *5 (S.D.N.Y. Dec. 26, 2000).

In addition, the record establishes that Halliday recommended Plaintiff’s termination based on Plaintiff’s poor work performance and issues with his co-workers. Plaintiff received an “Unsatisfactory” score in almost every category in his Evaluation Report, including “Attitude Toward Job,” “Quality of Work,” and “Relations with Other[s].” (Docket No. 41-15). Halliday’s draft of the Evaluation Report specifically referenced reports of Plaintiff’s disruptive and abusive behavior towards his co-workers. (Docket No. 41-14). This language was removed from the

final Evaluation Report at the request of the Human Resources Department because the level of detail provided was not required to terminate a probationary employee under state law. (Def. 56.1 at ¶ 33); (Pl. 56.1 at ¶ 48). While Plaintiff refutes the accuracy of the Evaluation Report, his self-serving statements are not “the concrete evidence necessary to give rise to a reasonable inference that poor performance evaluations were suspect.” Mattera v. JPMorgan Chase Corp., 740 F. Supp. 2d 561, 577 (S.D.N.Y. 2010). Moreover, Plaintiff’s denials “[do] not alter this analysis because ‘[i]n a discrimination case . . . we are decidedly not interested in the truth of the allegations against plaintiff. We are interested in what ‘motivated the employer;’ the factual validity of the underlying imputation against the employee is not at issue.’” Dasrath v. Stony Brook Univ. Med. Ctr., No. 12-CV-1484 SJF SIL, 2015 WL 1223797, at *13 (E.D.N.Y. Mar. 17, 2015) (quoting McPherson v. New York City Dep’t of Educ., 457 F.3d 211, 216 (2d Cir. 2006)).

Plaintiff further identifies alleged inconsistencies in Defendants’ proffered reasons for his termination. (Pl. Br. at 13–16). Plaintiff argues that Defendants’ reliance on the leaf blower incident is problematic because there is a discrepancy between Koran’s testimony and his written report.  Koran testified that Plaintiff threw the leaf blower at him and told him to go fuck himself, (Def. 56.1 at ¶ 22), whereas his written statement states that Plaintiff “practically threw the blower on the ground and told me to go fuck myself,” (id. at ¶ 26). The Court disagrees that Koran’s characterizations of the incident are so inconsistent that they are “unworthy of credence.” Droutman v. New York Blood Ctr., Inc., No. 03-CV-5384(DRH/ARL), 2005 WL 1796120, at *8 (E.D.N.Y. July 27, 2005) (internal quotation marks and citation omitted). Even if Plaintiff did not throw the leaf blower or commit the other acts complained of by his co-workers, the record is devoid of any evidence that these grounds were pretextual. “An employer’s good faith belief that an employee engaged in misconduct is a legitimate reason for terminating [him], 

and the fact that the employer is actually wrong is insufficient to show that the alleged misconduct is a pretext for discrimination.” Id. at *9 (emphasis in original) (citing Agugliaro v. Brooks Bros., Inc., 927 F. Supp. 741, 747 & n. 5 (S.D.N.Y.1996)). Plaintiff also claims that Halliday’s recollection of Plaintiff’s performance record is too weak to be relied upon because he is unable to pinpoint when he received reports of Plaintiff’s poor work performance and whether he documented the complaints.  This argument is belied by the sworn testimony of the employees who confirmed that they relayed these reports to Halliday. (See Linares Dec. at ¶¶ 3– 5); (Koran Dep.17 at 19–21). Thus, Plaintiff has failed to show that Defendants’ proffered basis for Plaintiff’s termination was pretextual.

Accordingly, Plaintiff’s discrimination claims pursuant to Title VII, NYSHRL and § 1983 are dismissed.

B.    Retaliation Under § 1983

Plaintiff alleges that Defendants retaliated against him for cooperating with Aure’s investigation into the anonymous complaint against the Grounds Department’s supervisors. (Docket No. 1 at 13). Defendants seek dismissal of this claim on the grounds that the Equal Protection Clause does not support a claim for retaliation under § 1983. (Def. Br. at 26). Defendants ignore the Second Circuit’s authority on this issue. In Vega v. Hempstead Union Free School District, the Second Circuit settled the ambiguity in its case law with respect to the viability of § 1983 retaliation claims and held that “retaliation claims alleging an adverse action because of a complaint of discrimination are actionable under § 1983.” 801 F.3d 72, 82 (2d Cir. 2015). The Second Circuit recognized that “retaliation is a form of discrimination,” and when an employer “retaliates against an employee because he complained of discrimination, the

17 Refers to Michael Koran’s deposition transcript. (Docket No. 41-12).

retaliation constitutes intentional discrimination against him for purposes of the Equal Protection Clause.” Id.

Evaluating Plaintiff’s retaliation claim under the controlling case law, the Court finds that Plaintiff’s § 1983 retaliation claim fails. “[O]nce action under color of state law is established, ‘the elements of a retaliation claim based on an equal protection violation under § 1983 mirror [the elements of a retaliation claim] under Title VII.’” Anderson v. City of New York, Health & Hosp. Corp., No. 16-CV-01051(GBD)(KHP), 2017 WL 9538862, at *14 (S.D.N.Y. Jan. 19, 2017), report and recommendation adopted, 2017 WL 3251603 (S.D.N.Y. July 31, 2017) (quoting Vega, 801 F.3d at 91). Thus, retaliation claims are subject to the McDonnell Douglas burden shifting framework. See Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014). To establish a prima facie case of retaliation, Plaintiff must prove that “(1) he was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.” Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014) (citation and internal quotation marks omitted).

Here, the record fails to establish a prima facie case of retaliation. Plaintiff argues that he participated in a protected activity when Aure interviewed him as a part of his investigation into the anonymous complaint. (Docket No. 1 at ¶ 72). However, the record does not establish that any of the Defendants were aware of Plaintiff’s meeting with Aure. (See Def. Br. at 37–38). Aure testified that he did not discuss the investigation with anyone while it was pending, nor did he disclose the substance of Plaintiff’s interview until well after Plaintiff’s termination. (Def. 56.1 at ¶¶ 51, 61). Plaintiff’s conclusory allegation that Defendants were aware of his participation in the investigation is not supported by any evidence in the record. Thus, because Plaintiff failed to demonstrate that Defendants, except Aure, were made aware of the alleged protected activity, Plaintiff has failed to establish a prima facie case of retaliation against Defendants Halliday, Schwarz, Farrell, Espinales and Tighe. See Mendoza v. SSC & B Lintas, New York, 913 F. Supp. 295, 301 (S.D.N.Y.1996) (dismissing retaliation claim where supervisor was unaware of plaintiff’s complaint at the time the adverse employment action was taken). Moreover, because Defendants Halliday, Schwarz, Farrell, Espinales and Tighe were unaware of Plaintiff’s cooperation with the investigation, Plaintiff has not established a causal connection between the protected activity and his termination. See Uddin v. City of New York, 427 F. Supp. 2d 414, 433 (S.D.N.Y. 2006) (finding no causal connection where the defendant was not aware of the protected activity prior to the adverse action).

Although Defendant Aure knew about Plaintiff’s participation in a protected activity, there is no evidence that Aure had any involvement in Plaintiff’s termination. “[L]iability for an Equal Protection Clause violation under § 1983 requires personal involvement by a defendant, who must act with discriminatory purpose.” Reynolds v. Barrett, 685 F.3d 193, 204 (2d Cir. 2012). To hold an individual liable for retaliatory conduct under § 1983, there must be “‘some affirmative link to causally connect the actor with the discrimination action,’ such that the claim is ‘predicated on the actor’s personal involvement.’” Hagan v. City of New York, 39 F. Supp. 3d 481, 514 (S.D.N.Y. 2014) (quoting Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000)). “Personal involvement includes not only direct participation but also ‘an official’s (1) failure to take corrective action after learning of a subordinate’s unlawful conduct, (2) creation of a policy or custom fostering the unlawful conduct, (3) gross negligence in supervising subordinates who commit unlawful acts, or (4) deliberate indifference to the rights of others by failing to act on information regarding the unlawful conduct of subordinates.’” Id. (quoting Hayut, 352 F.3d at 744). Here, the Complaint does not allege that Aure was involved in terminating Plaintiff’s probationary employment. Nor does the record suggest that Aure participated in Plaintiff’s termination proceedings, directly or indirectly. At the time, Aure was the Chief Diversity Officer, Title IX Coordinator, and Affirmative Action Officer at SUNY Purchase. (Def. 56.1 at ¶ 8). In that capacity, he was not responsible for recommending or reviewing Plaintiff’s employment status or termination. (See Aure Dep.18 at 7); (Aure Dec.19 at ¶ 6). Thus, Plaintiff’s retaliation claim against Aure must be dismissed for lack of personal involvement.

Accordingly, Plaintiff’s § 1983 retaliation claim against the individual defendants is dismissed.