Marrero v. R-Way Moving & Storage, LTD, No. 1:2010cv05838 - Document 34 (E.D.N.Y. 2012)
Court Description: ORDER granting in part and denying in part 28 Defendant R-Way's Motion for Summary Judgment. Ordered by Judge I. Leo Glasser on 8/16/2012. (Green, Dana)
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Marrero v. R-Way Moving & Storage, LTD Doc. 34 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x FERNANDO MARRERO, Plaintiff, Mem orandum an d Order 10 Civ. 58 38 - against - R-WAY MOVING & STORAGE, LTD., Defendant. ------------------------------------------------------x GLASSER, United States District J udge: Plaintiff Fernando Marrero (“Marrero” or “plaintiff”) brought this action against his form er em ployer, R-Way Moving & Storage, Ltd. (“R-Way” or “defendant”), alleging race-based discrim in ation, a hostile work environm ent, and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 20 0 0 e et seq. and the New York State Hum an Rights Law (“NYSHRL”), N.Y. Exec. Law § 296 et seq. (McKinney 20 10 ). Before the Court is defendant’s m otion for sum mary judgm ent, pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, defendant’s m otion is granted in part and denied in part. BACKGROU N D The following facts are undisputed, unless otherwise noted. R-Way is a m oving com pany based in Maspeth, New York, owned by J oseph and Christopher Rooney. Defendant’s Local Rule 56.1 Statem ent of Undisputed Material Facts (“Def.’s 56.1”) ¶¶ 12. During the relevant tim e period, R-Way had four full-tim e em ployees: J oseph 1 Dockets.Justia.com Rooney, Christopher Rooney, and their wives. Id. ¶ 17. R-Way also em ployed a parttim e bookkeeper, Ed Vecchio. Id. ¶ 16. The parties dispute the num ber of m overs em ployed, but they agree that these m overs are divided into full-tim e or “regular” m overs, 1 who were contacted every tim e there was a m oving job, id. ¶¶ 3-4, and num erous part-tim e workers who are contacted when the regular workers are unavailable or when a m oving job requires additional workers, id. ¶ 5; Plaintiff’s Local Rule 56.1 Statem ent of Undisputed Material Facts (“Pl.’s 56.1”) ¶ 10 . R-Way em ployed plaintiff as a part tim e worker from J uly 6, 20 0 6 to April 15, 20 10 . Def.’s 56.1 ¶ 6; Com pl. ¶ 2. Plaintiff alleges he initially worked as a “shaper,” m eaning he called R-Way each m orning and was given assignm ents based on R-Way’s needs. Com pl. ¶ 14. In the spring of 20 0 7, plaintiff alleges he was prom oted to “elevator,” m eaning that he was paid m ore, was given better assignm ents, and worked m ore regularly than a “shaper.” Com pl. ¶ 15. At approxim ately the sam e tim e, plaintiff alleges he began to be subjected to harassm ent based on his race and skin color. Plaintiff self-identifies as non-White Hispanic. Pl.’s 56.1 ¶¶ 1-2; Com pl. ¶ 2. Plaintiff alleges he was subjected to daily racial harassm ent at R-Way. This harassm ent allegedly began in J uly 20 0 7 when two regular workers, Montefusco and Lee, called him a “m onkey” and placed a banana near him . Affidavit of Ferdinand Marrero dated April 30 , 20 12 (“Marrero Aff.”) ¶ 23. Later that day, they allegedly called plaintiff at hom e on his cell phone and m ade m onkey noises, which plaintiff’s children overheard. Id.; Affidavit of Susan B. Egan dated April 2, 20 12 (“Egan Aff.”) Ex. 1 (“Marrero Dep.”), at 47. Montefusco adm itted that he called plaintiff “m onkey” but 1 Plaintiff alleges there were at least six regular or full-tim e m overs: Danny Pim entel, Frank Rosa, Neil Brady, Louis Anthony “Tony” Montefusco (“Montefusco”), Scott “Wolf” Adam s, and Robbie Lee (“Lee”). Marrero Aff. ¶ 12. 2 testified that the nicknam e origin ated with plaintiff, who referred to him self as a “silverback gorilla” due to his grey hair. Affidavit of Michael Resko dated April 30 , 20 12 (“Resko Aff.”) Ex J (“Montefusco Dep.”), at 29-31. From that day onward, R-Way em ployees allegedly referred to plaintiff alm ost exclusively as “m onkey.” Marrero Aff. ¶ 25. Plaintiff also alleges R-Way em ployees repeatedly taunted him with m onkey and gorilla toys or stuffed anim als, which som etim es were dressed in an R-Way t-shirt with plaintiff’s nam e written on it. Marrero Aff. ¶ 26; see also Affirm ation of J oseph Am adiz dated April 23, 20 12 (“Am adiz Aff.”) ¶ 13; Marrero Dep. at 52-53, 68 . When plaintiff rem oved the toys, they were quickly replaced. Marrero Dep. at 66. On one occasion, R-Way em ployees allegedly induced a custom er’s child to throw a m onkey toy at plaintiff. See Marrero Dep. at 45; Am adiz Aff. ¶ 13. On another occasion, Montefusco allegedly said to plaintiff, “Hey m onkey, turn around,” and then threw a sm all red cloth m onkey at plaintiff. Marrero Dep. at 69. RWay em ployees also allegedly posted a depiction of a chim panzee inside a com pany truck, with plaintiff’s nam e written on it. Id. at 68. 2 In the late sum m er of 20 0 9, R-Way em ployees allegedly hung a poster in the RWay warehouse, depicting a m onkey drinking from a bottle of alcohol. Handwritten across the top of the poster was the m essage, “Have you seen our m onkey? Reward if found $ $ $ .” Next to the m onkey is plaintiff’s first nam e, “Fernando,” and across the m onkey’s chest is written “R-Way.” See Resko Aff. Ex. C. Plaintiff alleges at least 10 copies of the poster were hung in the R-Way warehouse an d offices. Marrero Aff. ¶ 28; see also Am adiz Aff. ¶ 19 (stating he saw the poster hanging in the R-Way warehouse); 2 Plaintiff testified the im age was that of a particular chim panzee who inflicted horrific and life-threatening in juries on a wom an in Connecticut. See Andy Newm an, Pet Chim pan zee Attacks Wom an in Conn ecticut, N.Y. Tim es, Feb. 17, 20 0 9. 3 Resko Aff. Ex. K (Vecchio Dep.), at 47-48 (testifying he saw the poster in the R-Way warehouse). Near the posters, at the entrance to the warehouse, a stuffed purple m onkey was hung from the ceiling. Marrero Dep. at 59-60 . Plaintiff took down m any of the posters, but alleges the purple m onkey and som e of the posters were too high for him to reach an d were still hanging when he stopped working there on April 19, 20 10 . Marrero Dep. at 58 -59. Plaintiff alleges that he com plained several tim es to Chris Rooney about being called “m onkey,” which he interpreted to be racially derogatory. Marrero Aff. ¶ 29. The first tim e he allegedly com plained was the m orning after Montefusco and Lee called him and m ade m onkey noises. Marrero Dep. at 51. Plaintiff testified that he was so angry, he attem pted to physically confront the two m en but Chris Rooney intervened and told him “you got to roll with the punches.” Id. Plaintiff also subm itted an affidavit from J oseph Am adiz, a part-tim e worker at R-Way, who stated that in Novem ber 20 0 7 he was riding back from a m oving job with Marrero and heard Marrero com plain to one of the Rooney brothers about being called “m onkey.” Am adiz Aff. ¶ 17. Plaintiff alleges he also com plained to Chris Rooney in October 20 0 8 regarding the m onkey com m ents an d stated he considered the com m ents “racial.” Marrero Dep. at 8 8. Rooney allegedly again told plaintiff to “roll with the punches” and “just deal with it.” Id. Defendant denies plaintiff ever com plained or that Chris or J oe Rooney were aware of the taunts. Plaintiff alleges that on March 10 , 20 10 he again com plain ed to Chris Rooney about the harassm ent. Com pl. ¶ 24; Marrero Aff. ¶ 22. Plaintiff alleges that during this conversation, Rooney called him a “fucking m onkey.” Com pl. ¶ 24; Marrero Aff. ¶ 22. Following this exchange, plaintiff alleges his hours were severely reduced and his em ploym ent was constructively term inated. Com pl. ¶ 25; Marrero Aff. ¶ 22 (“I was 4 called to work on only 4 days in the 6 weeks im m ediately following m y com plaint to Chris Rooney on March 10 , 20 10 .”). Plaintiff recounted that during that tim e, he had an argum ent with Angel Lopez, another Hispanic em ployee, who participated in the harassm ent. Lopez allegedly sent plaintiff a text m essage with a picture of a case of bananas an d the m essage, “Chris says there is no work, he ordered som e food, go unload this.” Marrero Dep. at 92. Plaintiff then called Lopez: “I told him straight up, ‘You’re an Uncle Tom . Why are you following them ? This is not a joke to m e. You know as well as I know that I’m taking this very – like it is being discrim in ated.’” Marrero Dep. at 10 0 . On April 19, 20 10 , the last day plaintiff worked for R-Way, plaintiff confronted Chris Rooney regarding his reduced hours and the harassm ent he suffered. Marrero Aff. ¶ 30 ; Affidavit of Christopher Rooney dated April 2, 20 10 (“Rooney Aff.”) Ex. 1 (Transcript). Plaintiff recorded that conversation, using his m obile phone: CHRIS: Fernando? Som e, som e of the guys are telling m e that you’re unhappy, that, you know, things that they say an d everything like that, you know. If you don’t want to work here, I understand. . . . But they said som ething that’s bothering m e, you know, they said you were going to sue m e and I don’t know . . . .... FERNANDO: I’m getting tired of this shit, all right Chris? I gave you five years, five years and you’re tellin’ m e that you got no work for m e but you got a whole line of cars sittin’ outside that I have seniority over them , okay? Right or wrong Chris? Right or wrong? I have seniority over ‘em . And it took five years, three years of that dealing with fuckin’ m onkey this and fuckin’ m onkey that. Right or wrong? Right or wrong? CHRIS: Fernando, listen. I had talked to you about—if that’s what’s still bothering you, okay, you handle that am ongst the m en. You handle it with, with, with the guys. I’m not gonna tell ‘em to do this or don’t do that. I spoke m y piece about it when it first started, I said knock it off, okay? And then you were fine with it and you were jokin’ back and forth with it. 5 FERNANDO: Well, I had no choice, ‘cause uh, um , I m ean even you said it a couple tim es, even you said it like I heard you, and you handed m e a banana like it’s a joke, it’s not a joke to m e. It’s seriously, seriously it bothers m e, it really bothers m e but I have to, I have to fuckin’ sit on the sidelin es, keep m y m outh shut, while you yelled at m e like I’m som e little kid? I dealt with this shit, I get sick. You used to yell, you yelled at m e like I was som e little kid, you just hum iliate m e in front of the guys, like I’m som e little child. I’m not a little child, I’m 40 years old. . . . I bit m y tongue because I needed the job, but then I’m gonna sit down and then I com e here and I see, every tim e I com e here, I see som ebody, people that are under m e workin’? No, that’s not cool Chris. . . . You know, you got, you got pissed off. You know, all of a sudden you got pissed off that one tim e that I called you and I couldn’t com e in that Saturday, you called m e that week after, and com e in and took the keys from m e. Right? That’s where the shit started. And ever since then, you had a grudge against m e, all right? . . . You know what? This is it, I won’t be callin’ you no m ore. . . . On May 26, 20 10 , plaintiff filed a charge with the New York State Division of Hum an Rights. Com pl. ¶ 8 . As part of the dual-filing system , this com plaint was also filed with the Equal Em ploym ent Opportunity Com m ission (“EEOC”). Id. ¶ 9. On Decem ber 2, 20 10 , the EEOC issued a Notice of Right to Sue. Id. ¶ 11. Plaintiff filed the Com plaint on Decem ber 16, 20 10 . Id. JU RISD ICTION This Court has origin al jurisdiction over plain tiff’s Title VII claim s. The Court also has supplem ental jurisdiction over plaintiff’s state law discrim in ation claim s. Federal courts have supplem ental jurisdiction over “all other claim s that are so related to claim s in the action within such original jurisdiction that they form part of the sam e case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 6 1367(a). A state law claim form s part of the sam e controversy if the state and federal claim “derive from a com m on nucleus of operative fact.” United Mine Workers v. Gibbs, 38 3 U.S. 715, 725, 86 S. Ct. 1130 , 16 L. Ed. 2d 218 (1966). Here, the parties and alleged events and injuries that form the basis of plaintiff’s federal claim s are identical to those that form the basis of plaintiff’s state law claim s. D ISCU SSION I. Su m m ary Ju d gm e n t Sta n d ard Sum m ary judgm ent is appropriate “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a). As an initial m atter, the m oving party has the burden of dem onstrating that no genuine dispute of m aterial fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 10 6 S. Ct. 1348, 8 9 L. Ed. 2d 538 (1986). “A party asserting that a fact cannot be or is genuinely disputed m ust support the assertion by: (A) citing to particular parts of m aterials in the record, including depositions, docum ents, electronically stored inform ation, affidavits or declarations, stipulations (including those m ade for purposes of the m otion only), adm issions, interrogatory answers, or other m aterials; or (B) showing that the m aterials cited do not establish the absen ce or presen ce of a genuine dispute, or that an adverse party cannot produce adm issible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). Once the m oving party has m et this burden, the opposing party “‘m ust do m ore than sim ply show that there is som e m etaphysical doubt as to the m aterial facts. . . . [T]he nonm oving party m ust com e forward with specific facts showing that there is a 7 genuine issue for trial.’” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 20 0 2) (em phasis in original) (quoting Matsushita, 475 U.S. at 586– 87). “If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court m ay . . . grant sum m ary judgm ent if the m otion and supporting m aterials — including the facts considered undisputed — show that the m ovant is entitled to it.” Fed. R. Civ. P. 56(e). The Court is com pelled to draw all reasonable inferences in favor of the nonm oving party, Matsushita, 475 U.S. at 586, and a genuine dispute exists if a reasonable jury could find in favor of the non-m oving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 10 6 S. Ct. 250 5, 2510 , 91 L. Ed. 2d 20 2 (1986). However, “[i]f the eviden ce is m erely colorable, or is not significantly probative, sum m ary judgm ent m ay be granted.” Anderson, 477 U.S. at 249– 50 (citations om itted). “[T]he m ere existen ce of som e alleged factual dispute between the parties” alone will not defeat a properly supported m otion for sum m ary judgm ent. Id. at 247– 48 (em phasis in original). “Thus, the nonm oving party m ay n ot rest upon m ere conclusory allegations or denials but m ust set forth ‘concrete particulars’ showing that a trial is needed.” R.G. Grp., Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (quoting S.E.C. v. Res. Autom ation Corp., 585 F.2d 31, 33 (2d Cir. 1978)). II. Mate rial Is s u e s o f Fact Exis t as to W h e th e r D e fe n d an t is an “Em p lo ye r” u n d e r Title VII As an initial m atter, defendant m oves for sum m ary judgm ent on all of plaintiff’s federal claim s on the grounds that plaintiff has failed to show R-Way has fifteen or m ore em ployees, a requirem ent of Title VII. See 42 U.S.C. § 20 0 0 e(b) (“The term ‘em ployer’ 8 m eans a person engaged in an industry affecting com m erce who has fifteen or m ore em ployees for each working day in each of twenty or m ore calendar weeks in the current or preceding calendar year. . . .”); Walters v. Walters v. Metro. Educ. Enters., 519 U.S. 20 2, 117 S. Ct. 660 , 136 L. Ed. 2d 644 (1997) (“[T]he ultim ate touchstone under § 20 0 0 e(b) is whether an em ployer has em ploym ent relationships with 15 or m ore individuals for each working day in 20 or m ore weeks during the year in question.”). 3 This em ployee-num erosity requirem ent is not a jurisdictional prerequisite, but rather an elem ent of plaintiff's claim for relief. Arbaugh v. Y & H Corp., 546 U.S. 50 0 , 516, 126 S. Ct. 1235, 163 L. Ed. 2d 10 97 (20 0 6). Plaintiff’s claim s relate to conduct during his em ploym ent in 20 0 7, 20 0 8, 20 0 9, and 20 10 . Therefore, to m eet the em ployee-num erosity requirem ent of Title VII, he m ust show that defendants em ployed fifteen or m ore people for twenty weeks in calendar year 20 0 6, 20 0 7, 20 0 8, 20 0 9 or 20 10 . See, e.g., J acobson v. Int’l Tours & Events, LLC, No. 0 9 Civ. 10 50 (J CH), 20 10 WL 5211488, at *2 (D. Conn. Dec. 16, 20 10 ). The statute does not require that those twenty weeks run consecutively. To determ ine how m any em ployees an em ployer has for purposes of Title VII, courts frequently use a test known as the “payroll m ethod,” looking to an em ployer’s payroll to determ ine the num ber of individuals it em ploys. See Walters, 519 U.S. at 20 6. The Court’s inquiry is frustrated in this respect by the fact that defendant claim s to keep no payroll records or, indeed, an y record of the num ber of m overs em ployed, the identity of those em ployees, what dates they worked, what they were paid, or even how m any m oving jobs R-Way 3 In contrast, the NYSHRL applies to any business with four or m ore em ployees. N.Y. Exec. Law § 292(5) (defining an “em ployer” to exclude “any em ployer with fewer than four persons in his or her em ploy”). It is undisputed that R-Way had at least four em ployees. Def.’s Mem . at 12 (“The only truly full tim e em ployees of R-Way are J oe and Chris Rooney and their wives.”). 9 com pleted between 20 0 7 and 20 10 . See Def.’s 56.1 ¶¶ 24-25; Resko Aff. Ex. M (“Rooney Dep.”), at 94-95. Instead, defendant relies entirely upon the affidavit of Chris Rooney that R-Way had four full-tim e m anagers (the two Rooney brothers and their wives), one part-tim e bookkeeper (Ed Vecchio), an d used no m ore than 5 m overs on average, for a total of less than ten em ployees at any tim e. Def.’s 56.1 ¶¶ 15-19; Rooney Aff. ¶¶ 4-10 Viewed in the light m ost favorable to plaintiff, there is am ple eviden ce from which a reasonable jury could conclude R-Way had the requisite num ber of em ployees. For exam ple, plaintiff worked nearly every working day in J une, J uly, August, and October of 20 0 7, a total of approxim ately 20 weeks. See Marrero Aff. ¶ 15; Pl.’s Response to Interrogatories at 7. Because plaintiff was a junior part-tim e em ployee at that tim e, a reasonable fact-finder could conclude that full-tim e em ployees and m ore senior part-tim e em ployees would have worked m ore than plaintiff did during that period. Rooney Dep. at 75 (testifying that because plaintiff was a junior em ployee, there were “a lot m ore m en” he would have given work to, first); id. at 77 (testifying that J oe Nastazio, a part-tim e m over sen ior to plaintiff, worked m ore days than plaintiff did in 20 0 7); see also Montefusco Dep. at 15 (testifying that “full tim e” workers consistently work five days a week). Chris Rooney testified that even as late as 20 10 , there were 12 part-tim e m overs who had seniority over plaintiff and therefore would have received m ore work. Rooney Dep. at 93. Plaintiff’s affidavit states that the typical job em ployed 20 to 25 m oving m en using five m oving trucks. Marrero Aff. ¶¶ 14, 16. Form er R-Way em ployee J oseph Am adiz corroborated that figure. Am adiz Aff. ¶ 6 (“On each of the m oving jobs I worked, there were approxim ately 20 -30 m en on each job, including approxim ately 10 to 15 m en I identified as ‘regulars.’”). Although these affidavits conflict with Chris Rooney’s testim ony, a jury could 10 conclude Rooney’s testim ony is not credible in light of num erous self-serving inconsistencies and evasive answers. In addition, further eviden ce in the record also supports plaintiff’s testim ony. Defendant’s response to interrogatories lists seven “fulltim e” em ployees and 11 part-tim e m overs who worked at R-Way during the tim e plaintiff was em ployed. Resko Aff. Ex. H. To that list should be added the Roon eys’ wives, who worked full-tim e. The list also om its Rob Flarey, a truck driver, see Egan Aff. Ex. 2 (Lopez Dep.), at 20 , and eleven part-tim e m overs recorded in the parties’ exhibits: J im Keen an and Mike Ferrara, see Resko Aff. Ex. E; J ospeh Am adiz, see Afadiz Aff.; M. Daly, R. Metz, W. Kober, T. McMahon, T. Manino, and R. Battaglia, who all received Christm as bonuses from R-Way, see Resko Aff. Ex. I; Mike Tedesco, nicknam ed “Meterm an Mike,” see Montefusco Dep. at 35, and Ed Vecchio, J r., Egan Aff. Ex. 2 (Lopez Dep.) at 34-35. In total, there are 11 full-tim e em ployees and 23 part-tim e em ployees recorded as having worked at R-Way at som e tim e during the relevant period. This num ber is consistent with Chris Rooney’s adm ission that he had the telephone num bers of approxim ately 35 m overs in his cell phone contact list. Rooney Dep. at 58 -60 . For the foregoing reasons, a reasonable jury could find that R-Way m et the em ployee-num erosity requirem ent of Title VII and thus defendant’s m otion for sum m ary judgm ent on these grounds m ust be denied. III. H o s tile W o rk En viro n m e n t To survive a sum m ary judgm ent m otion on a hostile work environm ent claim , “[p]laintiff m ust introduce evidence showing that his workplace was perm eated with discrim inatory intim idation, ridicule, and insult, which was sufficiently severe or pervasive to alter the conditions of the victim ’s em ploym ent and create an abusive work 11 environm ent.” Davis-Bell v. Colum bia Univ., No. 10 Civ. 4362 (CM), 20 12 WL 94668 0 , at *14 (S.D.N.Y. Mar. 19, 20 12) (em phasis in original) (quotation and citations om itted). In order to prove that a workplace is “hostile,” a plaintiff m ust dem onstrate that: “(1) he subjectively perceive[d] the environm ent to be abusive; (2) the conduct alleged objectively created an environm ent that a reasonable person would find hostile or abusive; and (3) that the work environm ent was abusive to em ployees because of their race, gender, religion, or national origin.” Cunningham v. N.Y.S. Dep’t of Labor, 326 F. App’x 617, 620 (2d Cir. 20 0 9) (sum m ary order) (quotation and citation om itted). 4 A work environm ent’s hostility is assessed based on the totality of the circum stances. Harris v. Forklift Sys. Inc., 510 U.S. 17, 23, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993). Defendant m oves for sum m ary judgm ent on the grounds that plaintiff has failed to show his workplace was hostile “because of” his race. Defendant argues that “m onkey,” “m ay be considered a racial slur against African-Am ericans [but] it is not a known racial slur against Hispanics. . . .” Def.’s Mem . at 7. Therefore, defen dant argues “m onkey” is a race-neutral term and plaintiff has failed to show any contextual grounds, other than his own conjecture, for interpretin g “m onkey” to be an ethnic slur. In m aking this argum ent, defendant m isconstrues two Fourth Circuit cases for the astonishing proposition that “if the person called a m onkey is not also called a “nigger” or any other dem onstrably racial pejorative and isn’t also African Am erican, the word ‘m onkey’ has no racial content.” Def.’s Reply Mem . at 2 (citing White v. BFI Waste Servs., LLC, 375 F.3d 288 (4th Cir. 20 0 4); Spriggs v. Diam ond Auto Glass, 242 F.3d 179 (4th Cir. 20 0 1). The Court discerns no such rule from these cases. Nor did the Fourth 4 Hostile work environm ent claim s under Title VII and the NYSHRL are analyzed using the sam e standard. Citroner v. Progressive Cas. Ins. Co., 20 8 F. Supp. 2d 328, 339 (E.D.N.Y. 20 0 2) (citations om itted). 12 Circuit suggest that “m onkey” is only offensive to African-Am ericans. To the contrary, the Fourth Circuit observed that “‘[t]o suggest that a hum an being’s physical appearan ce is essentially a caricature of a jungle beast goes far beyond the m erely unflattering; it is degrading and hum iliating in the extrem e.’” White, 375 F.3d at 298 (quoting Spriggs, 242 F.3d at 185). Thus, the fact that plaintiff is not specifically of African heritage would not prevent a jury from concluding “m onkey” was a derogatory referen ce to his race. Plaintiff self-identifies as a dark-skinned, dark-haired Hispanic m an. Marrero Dep. at 43. He testified he understood “m onkey” to be a reference to his physical appearance. Id. at 44-45. Plaintiff also subm itted an affidavit from a Hispanic co-worker, J oseph Am adiz, who witnessed plaintiff being called “m onkey” and interpreted “m onkey” to be a derogatory reference to plaintiff’s race. Am adiz Aff. ¶ 11. As plaintiff rightly notes, although nicknam es were com m on between em ployees at R-Way, none of the nicknam es given to other em ployees had any racial connotation. 5 Pl.’s Mem . at 10 . Although at least one of the em ployees who called plaintiff “m onkey,” Angel Lopez, was Hispanic, a rational jury could still conclude that “m onkey” was a racial slur. Plaintiff described an argum ent he had with Lopez after Lopez taunted him with m onkey jokes. Plaintiff called Lopez an “Uncle Tom ” and criticized Lopez for “following them ,” Marrero Dep. at 10 0 , the plain im plication being that Lopez should not collaborate in discrim ination against one of his own race. Furtherm ore, the term “Hispanic” m eans only “Spanish-speaking, esp. applied to som eone of Latin-Am erican descent living in the United States.” Oxford English Dictionary (2d ed. 1989) Like 5 Other em ployees’ nick-nam es included: “Wolf,” “Little Whopper,” “Big Whopper,” “Toilet Bowl,” “Sarge,” and “Meterm an Mike.” Def.’s Mem . at 6. 13 Latin-Am erica itself, the term encom passes a wide range of races an d ethnicities, see, e.g. Paul Taylor et al., When Labels Don’t Fit: Hispanics and Their Views of Identity, Pew Research Center (April 4, 20 12), available at http:/ / www.pewhispanic.org/ files/ 20 12/ 0 4/ PHC-Hispanic-Identity.pdf (reporting on the diversity of racial, n ational, and cultural affiliation of those Am ericans considered “Hispanic”), and discrim ination som etim es occurs between these groups. For the sam e reason, although other Hispan ic m en at R-Way were not called “m onkey,” it is not im plausible that one Hispanic m an, of darker skin or differin g ethnicity, should be targeted for his physical appearance while others are not. See Marrero Dep. at 43 (testifying that plaintiff was darker-skinned than the other Hispanic em ployees). For the foregoing reasons, a reasonable jury could find that plaintiff was taunted and harassed because of his race an d defendant’s m otion for sum m ary judgm ent on plaintiff’s hostile workplace claim s m ust be denied. IV. Re taliatio n Plaintiff alleges that he com plained to Chris Rooney on March 10 about the hostile work environm ent he was experiencin g and that after he com plained, Rooney retaliated against him by reducing his workin g hours. See Com pl. ¶ 25 (“Following [the March 10 ] exchange, plaintiff had been called to work only one (1) day (April 15, 20 10 ) in the approxim ate m onth im m ediately thereafter, and his em ploym ent had been actually and constructively term inated in retaliation for his com plaining. . . .”). 6 Title VII m akes it unlawful for an em ployer to discrim inate against an em ployee “because he [or she] has opposed any practice m ade an unlawful em ploym ent practice by this 6 Plaintiff variously records this confrontation as occurring on April 15, 2010 and April 19, 2010. Compare Compl. ¶2 14 subchapter, or because he [or she] has m ade a charge . . . in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 20 0 0 e-3(a). Retaliation claim s, like discrim in ation claim s, are subject to the McDonnell Douglas burdenshifting analysis. 7 Kaytor v. Elec. Boat Corp., 60 9 F.3d 537, 552 (2d Cir. 20 10 ). To m ake out a prim a facie case of retaliation, a plaintiff m ust show: “(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse em ploym ent action; and (4) a causal connection between the protected activity and the adverse em ploym ent action.” J ute v. Ham ilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 20 0 5) (quotation om itted). Defendant seeks sum m ary judgm ent on two grounds: first, on the grounds that plaintiff did not engage in a “protected activity” because plaintiff did not alert Rooney that he was com plaining about conduct prohibited by Title VII or the NYSHRL; secon d, on the grounds that even if the March 10 conversation constituted “protected activity,” plaintiff has failed to show a causal connection between the protected activity an d any adverse em ploym ent action. A. Plain tiff h a s s h o w n h e e n ga ge d in p ro te cte d activity To constitute protected activity, the plaintiff m ust have taken action to protest or oppose statutorily prohibited discrim in ation. “While the law is clear that opposition to a Title VII violation need not rise to the level of a form al com plaint in order to receive statutory protection, this notion of ‘opposition’ includes activities such as ‘m aking com plaints to m anagem ent, writing critical letters to custom ers, protesting against discrim ination by in dustry or by society in general, and expressing support of co7 Retaliation claim s under Title VII and the NYSHRL are governed by the sam e standards. See Carm ody v. Vill. of Rockville Ctr., 661 F. Supp. 2d 299, 324 (E.D.N.Y. 20 0 9) (citations om itted). 15 workers who have filed form al charges.’” Cruz v. Coach Stores, Inc., 20 2 F. 3d 560 , 566 (2d Cir. 20 0 0 ) (quoting Sum ner v. United States Postal Serv., 8 99 F.2d 20 3, 20 9 (2d Cir. 1990 ). Specific reference to Title VII is not required but “the em ployer had to have been aware of the com plaint and m ust have understood, or could reasonably have understood, that the plaintiff’s opposition was directed at conduct prohibited by Title VII.” Marks v. Nat’l Com m unications Ass’n, Inc., 72 F. Supp. 2d 322, 336 (S.D.N.Y. 1999) (citing Galdieri– Am brosini v. Nat’l Realty & Devel. Corp., 136 F.3d 276, 292 (2d Cir. 1998 )). Defendant argues that Marrero’s March 10 conversation with Rooney did not m eet that standard and therefore plaintiff has not shown he engaged in protected activity. Standing alone, the March 10 com plaint did not constitute protected activity: plaintiff testified that the only thing he com plained of on March 10 was that Chris Rooney was ignoring seniority in assigning work. He did not com plain about being called “m onkey.” See Marrero Dep. at 8 5, 91. However, the March 10 conversation was not the only com plaint plaintiff m ade. Plaintiff alleges he com plained to Rooney specifically about being called “m onkey” in J uly 20 0 7 when the harassm ent began, Marrero Aff. 29; Marrero Dep. at 51, in Novem ber 20 0 7, Am adiz Aff. ¶ 17, in October 20 0 8, Marrero Dep. at 8 8, and in the late sum m er of 20 0 9, Pl.’s Resp. to Interrog. At 2. Plaintiff also com plained about being called “m onkey” on April 19. See Rooney Aff. Ex. 1 (Transcript) at 3. These com plaints were sufficient to constitute protected activity. See, e.g., Crawford v. Metro Gov’t of Nashville & Davidson Cnty., 555 U.S. 271, 275, 129 S. Ct. 8 46, 8 50 , 172 L.Ed. 2d 650 (20 0 9) (reporting harassing and “inappropriate behavior” by co-workers to a superior qualifies as “opposition”). 16 B. Plain tiff h as fa ile d to s h o w a cau s al co n n e ctio n be tw e e n h is p ro te cte d activity an d an y ad ve rs e e m p lo ym e n t actio n However, plaintiff has failed to show a causal connection between that protected activity and any adverse em ploym ent action. Plaintiff does not allege that defendant retaliated against him for any of the com plaints in 20 0 7, 20 0 8, or 20 0 9. Plaintiff alleges defendant only retaliated against him after the March 10 , 20 10 com plaint, when Rooney drastically reduced his hours, constructively term inating him . Am ong other things, causation m ay be proved “indirectly, by showing that the protected activity was followed closely by discrim in atory treatm ent, or through other circum stantial eviden ce. . . .” Raniola v. Bratton, 243 F.3d 610 , 625 (2d Cir. 20 0 1) (quotation om itted). But the record dem onstrates that plaintiff’s hours were reduced before he allegedly com plained on March 10 . See Marrero Aff. ¶ 21 (recording that plaintiff worked two days in February, five days in March an d one day in April 20 10 ); Marrero Dep. at 8 1-82 (testifying that his hours were reduced begin ning in February 20 10 ). “Where tim ing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.” Slattery v. Swiss Reinsurance Am . Corp., 248 F.3d 8 7, 95 (2d Cir. 20 0 1). The February reduction in hours also cam e long after plaintiff’s prior com plaint in 20 0 9 about racial harassm ent. See Pl.’s Response to Def.’s First Interrogatories at 2 (stating the prior com plaint occurred in “late sum m er or early fall 20 0 9” when plaintiff com plained to Rooney about being called m onkey). A delay of four or five m onths does not support an inference of retaliation. See Flood v. UBS Global Asset Mgm t., Inc., No. 10 Civ. 374 (RJ H), 20 12 WL 2880 41, at *17 (S.D.N.Y. Feb.1, 20 12) (collecting cases and 17 observing that although there is no “bright lin e” rule, courts in this Circuit generally consider a delay between the plaintiff’s protected action and the em ployer’s adverse em ploym ent action of six weeks or less to perm it an inferen ce of retaliation and a delay of two m onths or m ore to counsel against one). Finally, although plaintiff alleges at tim es that he was fired on April 19, plaintiff’ transcript of the April 19 conversation indicates that he quit his job, not that he was fired. See, e.g., Rooney Aff. Ex 1 (Transcript) at 5 (“FERNANDO: . . . . You know what? This is it, I won’t be callin’ you no m ore.”). In addition, plaintiff him self proffered a legitim ate, non-retaliatory reason for the reduction in his hours. When questioned why he believed his hours had been reduced, plaintiff’s testified that his hours were cut because he failed to show up for work on a certain day, not because he com plained about racial harassm ent. Plaintiff explained he had failed to com e to work on a Saturday when Rooney had scheduled him to work: A: [A]fter that that [sic] I didn’t com e in [to work], that’s when m ore things started to happen. Q: Like what? A: You know, days started being taken away from m e. My keys got taken away from m e. . . . Q: So up until this particular incident where you were unable to work, things between you and Chris were pretty solid? A: Right. Q: Now after the poster goes up and you’re unable to com e to work, what are the things that Chris does? A: He starts taking days off of m e. See Marrero Dep. at 77-78. Plaintiff m ade sim ilar allegations in his April 19 recorded conversation. See Rooney Aff. Ex. 1, at 5 (“You know, all of a sudden you got pissed off that one tim e that I called you and I couldn’t com e in that Saturday, you called m e that week after and com e in and took the keys from m e. Right? That’s where the shit started. And ever sin ce then, you had a grudge against m e, all right?”). Where an 18 em ployer presents evidence of a legitim ate, non-retaliatory reason for the adverse em ploym ent action, the burden shifts back to the em ployee to show that retaliation was a substantial reason for the adverse em ploym ent action. J ute, 420 F.3d at 173. Here, plaintiff him self proffered the non-retaliatory explanation and has provided no eviden ce that it was pretextual. For the foregoing reasons, plaintiff has failed to show a causal con nection between his protected activity and any adverse em ploym ent action. Because plaintiff has failed to establish a prim a facie case, defendant’s m otion for sum m ary judgm ent on plaintiff’s retaliation claim s m ust be granted. CON CLU SION For the foregoing reasons, defendant’s m otion for sum m ary judgm ent is granted as to plaintiff’s Title VII and NYSHRL retaliation claim s and denied as to all other claim s. SO ORD ERED . Dated: Brooklyn, New York August 16, 20 12 _ _ _ / s/ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I. Leo Glasser United States District J udge 19
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