Kaspi v Fairway Operating Corp.

[*1] Kaspi v Fairway Operating Corp. 2005 NY Slip Op 51914(U) [10 Misc 3d 1052(A)] Decided on October 7, 2005 Supreme Court, New York County Diamond, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 7, 2005
Supreme Court, New York County

Carmit Kaspi, Plaintiff,

against

Fairway Operating Corp. et al., Defendants.



113786/03

Marylin G. Diamond, J.

This action involves a claim of discrimination based on religion and nationality. The plaintiff, Carmit Kaspi, was employed by the defendants, who own and operate three Fairway food markets in the New York metropolitan area, from January 14, 2002 to December 2, 2002, at which time she was terminated. The plaintiff is a Jewish woman and an Israeli citizen who began employment with Fairway shortly after she arrived in this country from Israel. She was hired to manage Fairway's Graphics Department. The Graphics Department is responsible for the design, creation, printing and installation of signs which describe Fairway's various products. The complaint asserts three causes of action. The first two causes of action are brought under section 8-107(1)(a) of the New York City Civil Rights Law ( N.Y.C. Admin. Code § 8-107[1][a]), which provides, inter alia, that it shall be unlawful for an employer to discriminate against an employee in the terms, conditions or privileges of employment because of his or her religion or nationality. The plaintiff alleges that she was subjected to a hostile work environment based on her religion and nationality which affected the conditions of her employment. The third cause of action is brought under section 8-107(7) of the NYC Civil Rights Law, which provides that it shall be unlawful for an employer to retaliate against an employee because the employee has opposed a discriminatory employment practice. The complaint alleges that the defendants retaliated against plaintiff by terminating her employment after she spoke to Fairway's managers and owners about the hostile work environment to which she had been subjected. The defendants have now moved for summary judgment dismissing the complaint in its entirety.

Discussion

1. Hostile Work Environment - As already noted, the City Human Rights Law makes it unlawful for an employer to discriminate because of a person's religion or nationality. See NYC [*2]Admin. Code § 8-107(1)(a). Harassment is a form of discrimination under circumstances in which a person is subjected to a "hostile work environment" based on his or her religion or nationality. In determining hostile work environment harassment claims, the same standards which are applied under federal anti-discrimination laws are applied to the City Human Rights Law. See Walsh v. Covenant House, 244 AD2d 214, 215 (1st Dept 1997). Under this standard, a hostile work environment exists "[w]hen the workplace is permeated with 'discriminatory intimidation, ridicule, and insult,' * * * that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment'" (Harris v. Forklift Sys., 510 US 17, 21 [1993], quoting Meritor Sav. Bank v. Vinson, 477 US 57 [1986]).

In order to make out a prima facie case of harassment based on nationality or religion, a plaintiff must prove that (1) the conduct or words upon which the harassment claim is predicated were prompted simply because of his or her nationality or religion, (2) the conduct or words created a hostile work environment in which the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of his or her work environment, and (3) there is a specific basis for imputing the conduct that created the hostile environment to the employer. See Petrosino v. Bell Atlantic, 385 F3d 210, 220 (2nd Cir 2004). See also Meritor Sav. Bank v. Vinson, 477 US at 66-69; Trotta v. Mobil Oil Corp., 788 F Supp 1336 (SDNY 1992).

Whether conduct or words are unwelcome and whether a workplace should be viewed as hostile or abusive can only be determined by considering the totality of the circumstances. See Harris v. Forklift Sys., 510 US at 22. In deciding the issue, a court should consider the frequency of the discriminatory conduct, its severity, whether it was a humiliating comment or a mere offensive utterance and whether it unreasonably interfered with the plaintiff's work performance. Id. at 21. This test separates the "mere utterance of ...[a discriminatory] epithet which engenders offensive feelings in an employee," Rogers v. EEOC, 454 F2d 234, 258 (5th Cir 1971) and "the petty slights suffered by the hypersensitive," Zabkowicz v. West Bend Co., 589 F Supp 780, 784 (EDWis 1984), from actionable conduct.

Here, the plaintiff alleges that during the first five to six months of her employment at Fairway, she was subjected to a barrage of angry, offensive words referring to the fact that she is an Israeli Jew. She claims that she was called, by a number of different employees, a " fucking Jew," a "slut Jew" and an "Israeli bitch" and that there were frequent angry references to her being an Israeli Jew, such as "go back to your country, nobody wants you here" and " Israeli women are not faithful to their husbands." She also claims that two individuals who were particularly abusive, a member of the Graphics Department, Robert Rodriguez, and a secretary, Shakeena Marble, told her as well as others that they had been spitting in her coffee for a month and that she was a "Jewish bitch." She claims that Rodriguez printed a photograph from his computer in which he had superimposed her face and the face of an employee with whom she was friendly onto a picture of a woman sitting on a man's lap and had written in the words "Jew lover." Conceding that overt references to her religion and nationality ended in June or July of 2002, six months after she began working at Fairway, she nevertheless claims that the harassment continued in the form of conduct by others in the company, such as not being given sign request forms that had been faxed to her, not transmitting to the corporate office the purchase orders and inventory sheets she had prepared and having her keys to the bathroom taken away. [*3]

In moving for summary judgment, the defendants argue that the conduct or words upon which the plaintiff's harassment claim is predicated were prompted not because of her nationality or religion but, inter alia, because of her treatment of other employees. Although plaintiff issued five warning notices to Rodriguez during her first few months on the job, there is no evidence that the profane references to which she was allegedly subjected about her nationality and religion were the result of her having otherwise alienated or angered any other employee because of the manner in which she discharged her responsibilities. The defendants also suggest that there is no evidence that the conduct to which plaintiff was allegedly subjected after July, 2002 was tied to her nationality or religion. However, given the alleged verbal hostility that had been previously directed towards plaintiff with respect to her nationality and religion, a trier of fact may well conclude that the harassing conduct to which she was allegedly subjected was merely a continuation of this hostile environment. In any event, this issue is one which should be resolved at trial.

The defendants also argue that the allegedly harassing words and conduct on which this claim is based were not sufficiently severe or pervasive so as to support the plaintiff's claim of a hostile work environment. The court disagrees. In addition to a constant stream of abuse from Rodriguez and Marble over the first few months of her employment, the plaintiff alleges that at least three other employees at Fairway insulted her during the first six months by making crude and profane references to her being an Israeli Jew. In addition, plaintiff alleges that she received numerous messages on her answering machine in which she was cursed at for being an Israeli Jew. As already noted, after these alleged verbal slurs had ended, some employees allegedly harassed plaintiff by undermining her ability to do her job and by making the conditions at work more uncomfortable for her. Whether or not the plaintiff actually experienced these insults or is fabricating them, and whether or not they were sufficiently pervasive so as to alter the conditions of the plaintiff's work environment and support the plaintiff's legal claim of discrimination are issues which must be resolved at trial.

Finally, the defendants argue that plaintiff has failed to show that the harassment which she allegedly faced should be imputed to Fairway. As to liability for the conduct which created a hostile work environment, the City Human Rights Law provides that an employer shall be liable for such a discriminatory practice by an employee where either (1) the employee exercised managerial or supervisory responsibility, (2) the employer, either itself or through an employee who exercised supervisory or managerial responsibility, knew of the employee's discriminatory conduct and acquiesced in the conduct or failed to take immediate and appropriate corrective action or (3) the employer should have known of the employee's discriminatory conduct and failed to exercise reasonable diligence to prevent it. See NYC Admin. Code § 8-107(13)(b).

Applying this criteria here, it is clear that defendants may be liable if the plaintiff can establish at trial that she experienced a hostile work environment. On their motion, defendants have submitted an affidavit from Fairway's store manager and plaintiff's supervisor, John Rossi, who admits that plaintiff regularly complained to him that other employees were "mean" to her but denies that she ever mentioned that she had been subjected to anti-Israeli or anti-Jewish remarks. However, at his deposition, Rossi testified that plaintiff once complained to him that some Dominicans had made comments about her being an Israeli Jew but that he was unable to investigate since she was unable to identify anyone who had done so. In any event, Mr. Rossi's [*4]affidavit merely raises a question of fact since plaintiff has testified at her deposition and submitted an affidavit that she had repeatedly told Mr. Rossi about the slanderous statements made to her and about the conduct directed against her but that Mr. Rossi not only refused to take any corrective action, but was himself hostile about her complaints. Moreover, plaintiff has claimed that she also complained to numerous other management personnel, as well as to each of the three Fairway owners, and that her complaints were essentially ignored.

Noting that Robert Rodriguez was terminated in the Spring of 2002 and that Shakeena Marble was moved to another section of the office, defendants suggest that they did indeed respond to plaintiff's complaints about these two employees. As already discussed, the plaintiff has alleged that the harassment against her continued well after the Spring of 2002 and that management and the store owners were unresponsive to her complaints. She also claims that Ms. Marble continued to harass her after Ms. Marble was moved to another section of the office and that nothing further was ever done about this harassment. As with the other criteria which apply to a hostile environment claim, the question of whether the alleged hostile work environment should be imputed to Fairway is a question of fact which should be resolved at trial. The defendants' motion for summary judgment dismissing the first and second causes of action must therefore be denied.

2. Retaliation - Under the City Human Rights Law, it is unlawful for an employer to retaliate against an employee because the employee has opposed a discriminatory employment practice. See NYC Admin. Code § 8-107(7). To establish a prima facie case for retaliation, a plaintiff must demonstrate that (1) he or she was engaged in protected activity, (2) the employer was aware of that activity, (3) he or she suffered an adverse employment action such as termination and (4) there was a causal connection between the protected activity and the adverse employment action. See Torge v. New York Society for the Deaf, 270AD2d 153 (1st Dept 2000); Distasio v. Perkin Elmer Corporation, 157 F3d 55, 66 (2nd Cir 1998). Once the plaintiff establishes a prima facie case of retaliation, the defendant must establish, through rebuttal evidence, a "legitimate, independent, nondiscriminatory reason" for its actions. Sogg v American Airlines, Inc., 193 AD2d 153, 156 (1st Dept 1993). See also Tomka v. Seiler Corp., 66 F3d 1295, 1308 (2nd Cir 1995); Salerno v. City Univ . of New York, 2003 WL 22170609, * 9 (SDNY). Upon the submission of such evidence, the burden shifts to the plaintiff, who must then prove, by a preponderance of the evidence, that defendant's stated reasons for its actions are only a pretext. See Tomka v. Seiler Corp., 66 F3d at 1308. See also Ferrante v American Lung Assn., 90 NY2d 623, 630 (1997). The plaintiff, however, need not prove her claim to defeat a motion for summary judgment. Rather, she must only establish the existence of a material issue of fact as to whether 1) the employer's asserted reason for the challenged action is false or unworthy of belief and (2) more likely than not the real reason was one of retaliation. Id. at 630.

Here, the plaintiff has established a prima facie case for retaliation. She contends that the defendants retaliated against her by terminating her in December, 2002 two months after she had complained to one of Fairway's three owners, David Sneddon, the owner who had hired her, about the harassment she had been subjected to on the basis of her nationality and religion. In rebuttal, the defendant has submitted an affidavit from the employee who became plaintiff's supervisor in October, 2002, Armando Gonzalez. Mr. Gonzalez noted that up until the time he [*5]took over the department, plaintiff's work had not been directly monitored by a manager. He claimed that plaintiff failed to comply with his requests that she complete a weekly inventory, that she punch in and out of work and that she ensure that no part-time union employees work more than 35 hours per week without management approval. He also claimed that she improperly used the company's printer to create a large stack of family photographs. The defendants have attached a written "warning notice" which Fairway allegedly issued to plaintiff for each of these acts or omissions. Mr. Gonzalez also stated that he had serious issues with plaintiff's job performance, including complaints from various departments that her signs contained numerous misspellings. Finally, Mr. Gonzalez states that plaintiff was terminated after she walked out of a department meeting in which her job performance was one of the topics of discussion.

The court finds that the defendants have provided a "legitimate, independent, nondiscriminatory reason" for their decision to terminate the plaintiff. The burden thus shifts to the plaintiff to prove by a preponderance of the evidence that these stated reasons for her termination are only a pretext. In this respect, the plaintiff disputes Mr. Gonzalez's assessment of the quality of her work, claims that the violations she was accused of having committed were minor matters which she had been doing since she began and points out that she had received three pay raises during the time she was employed by Fairway. She also denies that she ever walked out of any department meeting and claims that she left the meeting in question at the same time as everyone else. Given these assertions and the fact that the plaintiff was terminated only two months after she complained to Sneddon about being harassed at work on the basis of her religion and nationality, the court is persuaded that plaintiff has establish the existence of a material issue of fact as to whether the real reason for her termination was more likely than not one of retaliation. The defendants' motion for summary judgment dismissing the third cause of action must therefore also be denied.

Accordingly, the defendants' motion for summary judgment is hereby denied.

The parties shall appear before the court in Room 412, 60 Centre Street, New York, New York on October 25, 2004 to pick a trial date.

ENTER ORDER

Dated: 10/7/05 MARYLIN G. DIAMOND J.S.C.

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