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.
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