Wiercinski v. Mangia 57, Inc. et al, No. 1:2009cv04413 - Document 91 (E.D.N.Y. 2012)

Court Description: ORDER granting in part and denying in part 83 Motion for Summary Judgment. For all of the foregoing reasons, Mangia's motion for summary judgment is GRANTED as to plaintiff's Title VII claim and DENIED as to plaintiff's Section 1981 claim. Ordered by Judge I. Leo Glasser on 6/18/2012. (Riley, Paul)
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Wiercinski v. Mangia 57, Inc. et al Doc. 91 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x ADAM WIERCINSKI, Plaintiff, MEMORANDUM AND ORDER 0 9 Civ. 4413 (ILG) (J O) - against MANGIA 57, INC., Defendant. ------------------------------------------------------x GLASSER, Senior United States District J udge: On October 14, 20 0 9, plaintiff Adam Wiercinsiki (“plaintiff”) filed a com plaint against his form er em ployer, Mangia 57, Inc. (“Mangia”), a café and catering com pany, and several Mangia em ployees, alleging, am ong other things, claim s for discrim ination and hostile work environm ent based on religion pursuant to Title VII of the Civil Rights Act of 1964, hostile work environm ent based on race pursuant to 42 U.S.C. § 1981, and violations of various state and m unicipal laws. The Court on J uly 2, 20 10 dism issed plaintiff’s state and m unicipal claim s, and on Novem ber 29, 20 11, so ordered the parties’ stipulation dism issing with prejudice all of the rem aining claim s except plaintiff’s Title VII and Section 1981 hostile work environm ent claim s against Mangia. Mangia now m oves for sum m ary judgm ent pursuant to Fed. R. Civ. P. 56(a) on the rem aining claim s. For the foregoing reasons, Mangia’s m otion for sum m ary judgm ent is hereby GRANTED as to plaintiff’s Title VII claim and DENIED as to plaintiff’s Section 1981 claim . I. BACKGROU N D The background to this action is also set out in the Court’s previous decision, fam iliarity with which is assum ed. See Wiercinski v. Mangia 57, Inc., No. 0 9 Civ. 4413 (ILG), 20 10 WL 2681168, at *1 (E.D.N.Y. J uly 2, 20 10 ). The pertinent facts, either Dockets.Justia.com undisputed or, where disputed, taken m ost favorably to plaintiff are as follows. Mangia em ployed plaintiff as a caterer from 1999 to 20 0 7. Defendant’s Rule 56.1 Statem ent of Undisputed Material Facts dated J an. 20 , 20 12 ¶¶ 8, 12 (“Def.’s 56.1”) (Dkt. No. 83-6). Plaintiff is J ewish. Com plaint dated Oct. 14, 20 0 9 ¶ 27 (“Com pl.”) (Dkt. No. 1). Artur Zbozien (“Zbozien”), a dispatcher at Mangia, was plaintiff’s supervisor. Def.’s 56.1 ¶ 25. So too was Margaret Cym anow (“Cym anow”), Mangia’s general m anager. Def.’s 56.1 ¶ 27. Robert Bazgier (“Bazgier”) and Gregorz Sarosiek (“Sarosiek”), dispatching assistants at Mangia, were two of plaintiff’s coworkers. Plaintiff’s Rule 56.1 Counter-Statem ent of Undisputed Material Facts dated Mar. 2, 20 12 ¶ 31 (“Pl.’s 56.1”) (Dkt. No. 85). In deposition testim ony, plaintiff described repeated harassm ent he received at the hands of Zbozien, incidents involving Bazgier and Sarosiek, and derogatory com m ents m ade by Cym anow. Som e of this testim ony was corroborated by other em ployees at Mangia. On his first day of work, plaintiff testified that after accidentally bum ping into Zbozien while the two were m oving boxes, Zbozien said to him “Did anybody ever fuck you, m other-fucking J ew.” Declaration of Steven Warshawsky dated Mar. 2, 20 12 (“Warshawsky Decl.”) Ex. 2 (Wiercinski Dep.), at 268 (Dkt. No. 86). Zbozien frequently referred to plaintiff, am ong other things, as “stupid J ew,” “dirty J ew,” “fucking J ew,” told him to go away because it “sm ells of J ew,” and at least a few tim es would say, “Fuck off, you stupid J ew.” Warshawsky Decl. Ex. 3 (Krajewski Dep.), at 37-39; id. Ex. 5 (Ubowski Dep.), at 48, 67; Warshawsky Decl. Ex. 2 (Wiercinski Dep.), at 271. Zbozien also “practically on a weekly basis” refused to distribute to plaintiff his share of the tips at the end of each shift, forcing one of his colleagues to give plaintiff his share and then taking over once again after plaintiff left. Id. Ex. 2 (Wiercinski Dep.), at 2 272 (“[W]hen I cam e to the register when it was m y turn he . . . stood up and he said, I’m not going to be dealing with this stupid J ew or other dum b J ew, and he asked his assistant Bazgier to deal with m e instead.”); id. Ex. 3 (Krajewski Dep.), at 31 (“When Artur saw [plaintiff] waiting, he was saying that he wouldn’t be giving any m oney to the dirty J ew. And usually when he was getting up, Robert was taking his place. When [plaintiff] was done, Artur returned.”). On approxim ately 10 of the occasions in which he did interact with plaintiff, Zbozien paid plaintiff part of his tip in pennies by tossing the pennies at plaintiff, the surrounding tables, and the floor. Id. Ex. 3 (Krajewski Dep.), at 36 (“[S]o [Zbozien] on purpose was picking up, you know, the pennies only and grabbing the handful of pennies. He was tossing them in front of [plaintiff]. Obviously those pennies were flying everywhere—on the tables, on the floor, som etim es into his body.”); id. Ex. 2 (Wiercinski Dep.), at 275 (“[H]e just threw it all over the room at m e.”). On two other occasions, Zbozien m ade reference to Zyklon B, the poison gas used in Nazi death cam ps, during interactions with plaintiff—passing gas in plaintiff’s direction and saying, “[Y]ou see J ew, this is your Zyclon [sic] B” and sprinkling salt on plaintiff’s food and, while laughing, stating “This is your Zyclon [sic] B.” Id. Ex. 2 (Wiercinski Dep.), at 278-79. With respect to the treatm ent he received from Bazgier and Sarosiek, plaintiff testified that after he com plained to Cym anow about Bazgier calling him nam es such as “piece of shit J ew,” Bazgier kicked plaintiff in the groin and called him a “fucking pederast J ewish faggot.” Id. Ex. 2 (Wiercinski Dep.), at 288-90 . On another occasion, after plaintiff discovered Sarosiek drinking in Mangia’s supply room , Sarosiek pushed plaintiff, causing him to hit his head on a wall and said “get the fuck out of here you 3 fucking J ew.” Id. Ex. 2 (Wiercinski Dep.) at 285. As for harassing com m ents m ade by Cym anow, plaintiff testified that, “m any tim es,” Cym anow called him “jopek” or “jopki”—apparently a derogatory term for J ews—and that “m any tim es over” she m entioned to plaintiff that she blam ed the J ews for killing Christ. Id. Ex. 2 (Wiercinski Dep.), at 252-54. Plaintiff did not report every instance of harassm ent he experienced at Mangia but on several occasions com plained to Cym anow about the treatm ent he received. Som etim es she took action in response to the com plaints; som etim es she did not. Plaintiff testified that he com plained about Zbozien’s refusal to interact with him during the tip distribution process “[o]n num erous occasions” only to be m et with the response that she was too busy to deal with the com plaints. Warshawsky Decl. Ex. 2 (Wiercinski Dep.), at 273. He also testified that Cym anow took no action when he com plained to her after Zbozien sprinkled salt on his food and m ade the Zyklon B com m ent and after Bazgier kicked plaintiff in the groin and called him “a fucking pederast J ewish faggot.” Id. Ex. 2 (Wiercinski Dep.), at 279, 289-90 . Cym anow did take rem edial action after one of the occasions plaintiff com plained to her about Zbozien’s treatm ent of him — tem porarily transferring Zbozien for several weeks to a different Mangia location. Id. Ex. 2 (Wiercinski Dep.), at 281-82. After Zbozien returned, however, plaintiff testified that “it was hell all over again.” Id. Ex. 2 (Wiercinski Dep.), at 282. In Decem ber 20 0 7, plaintiff requested a leave of absence from Mangia in order to travel to Poland and, prior to leaving, was inform ed that he would not be rehired upon his return because he was leaving during the busiest tim e of the year. Def.’s 56.1 ¶¶ 3637. After returning from his trip, plaintiff was not rehired by Mangia. Def.’s 56.1 ¶ 38. 4 On or about J uly 27, 20 0 7, plaintiff filed a verified com plaint against Mangia LLC with the New York State Division of Hum an Rights (“NYSDHR”), alleging, am ong other things, em ploym ent discrim ination on the basis of his religion. Declaration of Andrew Prior dated J an. 20 , 20 12 (“Prior Decl.”), Ex. H. (Dkt. No. 83-1). As part of the dualfiling system , this com plaint was also filed with the Equal Em ploym ent Opportunity Com m ission (“EEOC”). Id. On or about April 21, 20 0 8, plaintiff filed a second com plaint against Mangia 57, Inc., alleging that Mangia retaliated against him for filing his first com plaint. Affidavit of Roger Maldonado dated Feb. 22, 20 10 , Ex. 5 (Dkt. No. 13). This com plaint was also filed with the EEOC. Id. On May 13, 20 0 9, the NYSDHR held a hearing on plaintiff’s two com plaints, and during the course of this hearing, Wiercinski agreed to withdraw them . Wiercinski, 20 10 WL 2681168, at *1. At the hearing, the following exchanged occurred: The Court: [I]t is m y understanding that at this tim e after consulting with Counsel, Mr. Wiercinski wishes to request perm ission from the Com m issioner to withdraw his cases and will know that they will be dism issed with prejudice without any further proceedings. It is m y understanding that the parties have had discussion and that they wish to inform m e that the m atter has been settled between them and they understand that this is a request to dism iss with prejudice without any further proceedings. Is that accurate, Gentlem an? Mr. Maldonado: This is accurate, Your Honor. Mr. Colleluori [Plaintiff’s counsel]: That’s accurate. The Court: Mr. Wiercinski, that’s accurate, correct? The Witness: Yes. 5 Declaration of Andrew Prior dated Mar. 16, 20 12 Ex. 1 (Transcript of NYSDHR Proceedings), at 230 -31. After plaintiff filed a stipulation to that effect, the NYSDHR on May 14, 20 0 9 dism issed both com plaints with prejudice. Prior Decl. Ex. H. And, in light of the stipulation, the EEOC subsequently dism issed both com plaints as well, inform ing plaintiff that “[i]n view of the agreem ent reached between you and Mangia LLC, the [EEOC] will take no further action on this charge.” Prior Decl. Ex. J . On J uly 13, 20 0 9, Wiercinski requested that the NYSDHR reopen his cases, but his request was denied on August 12, 20 0 9. Wiercinski, 20 10 WL 2681168, at *1. On August 14, 20 11, counsel for plaintiff telephoned the EEOC to inquire about the possibility of obtaining a right to sue letter, and an EEOC representative stated that the agency would not issue such a letter and that it was not possible to obtain one under the circum stances of this case. Warshawsky Decl. ¶ 2. Plaintiff on October 14, 20 0 9 initiated this action. On Decem ber 13, 20 11, Mangia filed a m otion for sum m ary judgm ent on plaintiff’s rem aining claim s. Defendant’s Mem orandum of Law in Support of Motion for Sum m ary J udgm ent dated J an. 20 , 20 12 (“Def.’s Mem .”) (Dkt. No. 83-5). Plaintiff on March 2, 20 12 filed his opposition. Plaintiff’s Mem orandum of Law in Opposition dated Mar. 2, 20 12 (“Pl.’s Opp’n”) (Dkt. No. 84). On March 16, 20 12, Mangia filed its reply subm ission. Mem orandum of Law in Further Support of Motion for Sum m ary J udgm ent dated Mar. 16, 20 12 (“Def.’s Reply”) (Dkt. No. 87-1). After being granted leave to do so, plaintiff on March 19, 20 12 filed a sur-reply. The Court on J une 15, 20 12 held oral argum ent on Mangia’s m otion. Mangia contends sum m ary judgm ent is warranted on plaintiff’s Title VII claim because plaintiff has failed to exhaust his adm inistrative rem edies. Further, even if 6 plaintiff had exhausted his adm inistrative rem edies, Mangia argues, plaintiff’s Title VII and Section 1981 hostile work environm ent claim s fail because plaintiff has established neither that the harassm ent he endured was sufficiently severe or pervasive nor that any basis exists for im puting the objectionable conduct to Mangia. Mangia also seeks dism issal of plaintiff’s claim s for front pay, back pay, and future earnings on the claim s, contending that plaintiff has failed to m itigate his dam ages. The Court will address these contentions below. II. D ISCU SSION A. Le gal Stan 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). “‘An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonm oving party. A fact is m aterial if it m ight affect the outcom e of the suit under the governing law.’” Fincher v. Depository Trust & Clearing Corp., 60 4 F.3d 712, 720 (2d Cir. 20 10 ) (quoting Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 20 0 8)). The m oving party bears the burden of establishing the absence of any genuine dispute as to any m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 10 6 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). When the burden of proof at trial would fall on the nonm oving party, it ordinarily is sufficient for the m ovant to point to a lack of evidence to go to the trier of fact on an essential element of the nonm ovant’s claim . Id. at 322-23. To defeat a m otion for sum m ary judgm ent, the non-m oving party “‘m ust do m ore than sim ply show that there is som e m etaphysical doubt as to the m aterial facts,’” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 20 11) (quoting Matsushita Elec. Indus. Co. v. 7 Zenith Radio Corp., 475 U.S. 574, 586-87, 10 6 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)), and cannot “‘rely on conclusory allegations or unsubstantiated speculation.’” Id. (quoting Fed. Deposit Ins. Corp. v. Great Am . Ins. Co., 60 7 F.3d 288, 292 (2d Cir. 20 10 )). A court deciding a m otion for sum m ary judgm ent m ust “‘construe the facts in the light m ost favorable to the non-m oving party and m ust resolve all am biguities and draw all reasonable inferences against the m ovant.’” Brod v. Om ya, Inc., 653 F.3d 156, 164 (2d Cir. 20 11) (quoting William s v. R.H. Donnelley Corp., 368 F.3d 123, 126 (2d Cir. 20 0 4)). “‘Credibility determ inations, the weighing of the evidence, and the drawing of legitim ate inferences from the facts are jury functions, not those of a judge.’” Kaytor v. Elec. Boat Corp., 60 9 F.3d 537, 545 (2d Cir. 20 10 ) (quoting Reeves v. Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 , 120 S. Ct. 20 97, 147 L. Ed. 2d 10 5 (20 0 0 )). “‘In sum , sum m ary judgm ent is proper only when, with all perm issible inferences and credibility questions resolved in favor of the party against whom judgm ent is sought, ‘there can be but one reasonable conclusion as to the verdict,’ i.e., ‘it is quite clear what the truth is.’” Redd v. N.Y. Div. of Parole, — F.3d —, 20 12 WL 1560 40 3, at *7 (2d Cir. May 4, 20 12) (quoting Kaytor, 60 9 F.3d at 546). B. Exh au s tio n o f Plain tiff’s Title VII Claim As a precondition to filing a Title VII claim in federal court, a plaintiff m ust first exhaust his adm inistrative rem edies by tim ely filing a com plaint with the EEOC, obtaining a right to sue letter, and filing an action within 90 days of receipt of that letter. See 42 U.S.C. § 20 0 0 e-5(e)-(f); Deravin v. Kerik, 335 F.3d 195, 20 0 (2d Cir. 20 0 3) (“As a precondition to filing a Title VII claim in federal court, a plaintiff m ust first pursue 8 available adm inistrative rem edies and file a tim ely com plaint with the EEOC.”).1 “Exhaustion is ordinarily ‘an essential elem en t’ of a Title VII claim ,” William s v. N.Y. City Housing Auth., 458 F.3d 67, 70 (2d Cir. 20 0 6) (quoting Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 20 0 1)), and “one with which defendants are entitled to insist that plaintiffs com ply,” Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 20 0 0 ). This exhaustion requirement is “designed to give the adm inistrative agency the opportunity to investigate, mediate, and take rem edial action . . . .” Shah v. N .Y. State Dep’t of Civil Serv., 168 F.3d 610 , 614 (2d Cir. 1999) (internal quotation m arks and citation omitted). However, because exhaustion is not a jurisdictional requirem ent, but instead sim ply a precondition to bringing a Title VII action, it can be waived by the parties or the court. Francis, 235 F.3d at 769 (citation 1 Exhaustion also requires that the defendant was nam ed in the EEOC com plaint. J ohnson v. Palm a, 931 F.2d 20 3, 20 9 (2d Cir. 1991). There is an exception, however, when there is “a clear identity of interest between the unnam ed defendant and the party nam ed in the adm inistrative charge.” Id. Mangia contends plaintiff failed to m eet this requirem ent by nam ing Mangia LLC in his first NYSHRD com plaint instead of Mangia 57. Def.’s Mem . at 4. Not so. First, as a factual m atter, although it is true that the caption of plaintiff’s first NYSHRD com plaint originally nam ed only Mangia LLC, this fact is not dispositive as the body of the com plaint m entions Mangia 57 throughout. Cf. Heicklen v. U.S. Dep’t of Hom eland Sec., No. 10 Civ. 2239 (RJ H) (J LC), 20 11 WL 3841543, at *10 n.12 (S.D.N.Y. Aug. 30 , 20 11) (noting that “the caption itself is norm ally not determ inative of the identity of the parties or of the pleader’s statem ent of claim ” and finding that although plaintiff did not nam e two defendants in the caption of the com plaint, he intended them to be parties in light of allegations nam ing them in the com plaint’s body). Second, even if Mangia 57 were not m entioned in the com plaint, the “identity of interest” exception would nevertheless apply. Indeed, Mangia has already previously acknowledged that plaintiff “[e]rroneously nam ed Mangia LLC” in his EEOC com plaint and that the com plaint “alleged unlawful discrim inatory practices relating to his em ploym ent with . . . Mangia 57, Inc.” Maldonado Aff. dated Feb. 22, 20 10 ¶ 6 & n.2 (Dkt. No. 13). 9 om itted) (defendants’ exhaustion argum ent waived where, am ong other things, they did not raise it until after judgm ent had been entered). Mangia argues that plaintiff’s failure to obtain a right to sue letter bars his Title VII claim and that the Court has no basis on which to waive this failure to exhaust. Def.’s Mem . at 4-5; Def.’s Reply at 3-4. Plaintiff acknowledges that he never received a right to sue letter from the EEOC but m aintains that the EEOC letter dated Novem ber 19, 20 0 9 inform ing him that in light of his withdrawal of the com plaint against Mangia, it “will take no further action on this charge,” constitutes the “functional equivalent of a right to sue letter” sufficient to satisfy Title VII’s exhaustion requirem ent. Pl.’s Opp’n at 9. The Court disagrees. Even a cursory review of the EEOC regulation that enum erates the required contents of “the notice of right to sue” required pursuant to Section 20 0 0 e– 5(f)(1) 2 —the right to sue letter—m akes clear the letter plaintiff received was not the functional equivalent of such a letter. The regulation, 29 C.F.R. § 160 1.28(e), provides as follows: (e) Content of notice of right to sue. The notice of right to sue shall include: (1) Authorization to the aggrieved person to bring a civil action under title VII, the ADA, or GINA pursuant to section 70 6(f)(1) of title VII, section 10 7 of the ADA, or section 20 7 of GINA within 90 days from receipt of such authorization; (2) Advice concerning the institution of such civil action by the person claim ing to be aggrieved, where appropriate; 2 Section 20 0 0 e– 5(f)(1) of Title VII provides in relevant part: If a charge filed with the Com m ission pursuant to subsection (b) of this section is dism issed by the Com m ission . . . the Com m ission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action m ay be brought against the respondent nam ed in the charge (A) by the person claim ing to be aggrieved . . . . 42 U.S.C. § 20 0 0 e-5(f)(1). 10 (3) A copy of the charge; (4) The Com m ission’s decision, determ ination, or dism issal, as appropriate. The EEOC letter received by plaintiff plainly m eets none of these requirem ents. It sim ply states, in relevant part, “[i]n view of the agreem ent reached between you and [Mangia], the Equal Opportunity Em ploym ent Com m ission (EEOC) will take no further action on this charge.” Prior Decl. Ex. J . Further, both of the cases relied upon by plaintiff in support of his contention are distinguishable. In Perdue v. Roy Stone Transfer Corp., 690 F.2d 10 91, 10 94 (4th Cir. 1982), the Fourth Circuit concluded that a plaintiff could proceed on her Title VII claim even though she lacked a right to sue letter where the EEOC had negotiated a settlem ent between the plaintiff, and the defendant failed to abide by the agreem ent’s term s. The EEOC had refused to issue the right to sue letter in light of the parties’ settlem ent. Id. at 10 92. The Fourth Circuit allowed the plaintiff’s suit to proceed not sim ply because the letter from the EEOC to the plaintiff said that “EEOC would take no further action her behalf” but m ore im portantly because the defendant refused to abide by the settlem ent agreem ent. See id. at 10 94 n.7 (“Plaintiff’s suit is tim ely if she sued within ninety days of acquiring knowledge or reason to know that the Com pany refused to abide by the settlem ent agreem ent and that EEOC would take no further action on her behalf.” (em phasis added)).3 The Fourth Circuit stressed that to hold otherwise would m ean that “a claim ant forever loses his entitlem ent to a ‘right to sue’ notice, and hence the right to seek redress in federal court, when he enters into a settlem ent agreem ent, even if the em ployer who purportedly settled never had any intention of honoring the 3 Plaintiff selectively quotes from Perdue, om itting language regarding the defendant’s breach of the settlem ent agreement. Pl.’s Opp’n at 9 n.6. 11 agreem ent.” Id. at 10 93. Here, by contrast, plaintiff does not contend Mangia breached any settlem ent agreement between it and plaintiff; indeed, plaintiff stresses that in spite of his representations during the NYSDHR proceeding on May 13, 20 0 9, “there was no ‘settlem ent’” between the parties at all. Pl’s Opp’n at 9 n.5.4 Additionally, unlike in Equal Em ploym ent Opportunity Com m ission v. International Ass’n of Bridge, Structural and Ornam ental Ironworkers, Local 580 , 139 F. Supp. 2d 512, 520 (S.D.N.Y. 20 0 1), where the court excused the plaintiff’s failure to obtain a right to sue letter in light of the EEOC’s eighteen m onth delay in taking any action on behalf of the plaintiff, here, the EEOC took action with respect to plaintiff’s claim s. It inform ed him that based on his decision to resolve his claim s with Mangia, it would take no further action on his charges. Prior Decl. Ex. J . Accordingly, because plaintiff failed to obtain a right to sue letter, he has failed to exhaust his adm inistrative rem edies, and sum m ary judgm ent on plaintiff’s Title VII is required unless the Court determ ines that the facts of this case warrant equitable m odification of Title VII’s statutory requirem ents.5 “‘Courts in this circuit have recognized that the statutory prerequisites for bringing a Title VII suit in federal court m ay be waived in cases where a plaintiff has in som e extraordinary way been prevented from asserting [his] rights, or when the EEOC has incorrectly refused to issue a right-to-sue letter,’” Crisci-Balestra v. Civil Serv. Em ps. Ass’n, Inc., No. 0 7 Civ. 1684 (J FB) (ETB), 20 0 8 WL 413812, at *3 (E.D.N.Y. Feb. 13, 20 0 8) (quoting Ishikawa v. City of N.Y. Dep’t of Cultural Affairs, No. 91 Civ. 7269 4 Plaintiff instead sim ply agreed to withdraw his com plaints and filed a stipulation to that effect. Id. 5 Plaintiff does not contend that Mangia has in any way waived his noncom pliance with the exhaustion requirem ent. 12 (SWK), 1993 WL 362393, at *5 (S.D.N.Y. Sept. 14, 1993)), or “when affirm ative m isconduct by a defendant has lulled a plaintiff into inaction,” Hladki v. J effrey’s Consol., Ltd., 652 F. Supp. 388, 393 (E.D.N.Y. 1987) (Glasser, J .); see also Pietras v. Bd. of Fire Com m ’rs of Farm ingville Fire Dist., 180 F.3d 468, 474 (2d Cir. 1999) (district court acted within its discretion by excusing absence of right to sue letter where plaintiff m ade diligent effort to obtain letter from EEOC and was denied it on erroneous basis). No such circum stances are present here, and plaintiff has failed to set forth any reasons that would justify any equitable m odification of the statutory requirem ent. Plaintiff does not contend that he was in an y way lulled into inaction by Mangia; nor does he contend that he was prevented from asserting his rights in som e extraordinary fashion or even that EEOC erroneously denied him a right to sue letter. He instead argues that he m ade sufficient efforts to obtain the letter by requesting it roughly two years after he had chosen to discontinue his claim s before the NYSDHR. Pl.’s Opp’n at 10 -11. To be sure, authority exists for the proposition that a plaintiff’s diligence in seeking to obtain a right to sue letter m ay be sufficient to cause a court to m odify the statutory requirem ent, Negron v. City of New York, No. 10 Civ. 2757 (RRM) (LB), 20 11 WL 47370 68, at *6 (E.D.N.Y. Sept. 14, 20 11) (“For the Court to waive a plaintiff’s failure to obtain a ‘right to sue’ letter, ‘the plaintiff m ust show or allege that he m ade an effort to procure the right to sue letter or that he raised the failure to issue a right to sue letter with the EEOC.’” (quoting Canty v. Wackenhut Corr. Corp., 255 F. Supp. 2d 113, 117 (E.D.N.Y. 20 0 3)); Gonzalez v. City of New York, 354 F. Supp. 2d 327, 332 n.12 (S.D.N.Y. 20 0 5) (“In light of plaintiffs’ allegation that Rivera twice attem pted to obtain a right-tosue letter, the Court finds that his failure to produce one does not bar him from filing this lawsuit.”), but the weight of authority and the view m ost consistent with the Second 13 Circuit’s decision in Pietras is that som e extraordinary event such as an error by the EEOC in addition to m ere diligence by a plaintiff is required to justify an equitable m odification of the statutory requirem ent. See Pietras, 180 F.3d at 474 (“Given that Pietras m ade a diligent effort to obtain a notice-of-right-to-sue letter from the EEOC and was denied one on the erroneous basis that she was not an em ployee, we believe that the district court acted well within its discretion by excusing the absence of such a letter in this case.”); see also Hladki, 652 F. Supp. at 393 (collecting cases). The Court thus has no basis upon which to waive Title VII’s prerequisites and plaintiff’s Title VII claim is barred for failure to exhaust adm inistrative rem edies. Mangia’s m otion for sum m ary judgm ent on plaintiff’s Title VII claim is therefore GRANTED. The Court next turns to plaintiff’s Section 1981 claim which, unlike the Title VII claim , is not subject to any exhaustion requirem ent. See, e.g., Woodcock v. Montefiore Med. Ctr. Univ. Hosp. of Albert Einstein Coll. of Med., No. 98 Civ. 4420 (ILG), 20 0 2 WL 40 360 1, at *5 n.6 (E.D.N.Y. J an. 28, 20 0 2) (citing Patterson v. McLean Credit Union, 491 U.S. 164, 181, 10 9 S. Ct. 2363, 10 5 L. Ed. 2d 132 (1989)). C. Plain tiff’s Se ctio n 19 8 1 Claim Plaintiff’s Section 1981 hostile work environm ent claim is prem ised on his “ancestry” and “ethnicity” as a J ew. Com pl. ¶ 92.6 Although Section 1981 does not apply to discrim ination on the basis of national origin, the term “race” is broadly defined “to protect from discrim ination identifiable classes of persons who are subjected to 6 Section 1981 provides in relevant part that “[a]ll persons within the jurisdiction of the United States shall have the sam e right in every State . . . to m ake and enforce contracts, . . . and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981(a). 14 intentional discrim ination solely because of their ancestry or ethnic characteristics.” St. Francis Coll. v. Al-Khazraji, 481 U.S. 60 4, 613, 10 7 S. Ct. 20 22, 95 L. Ed. 2d 594 (1987). And there is no question that J ews count as a “race” under Section 1981. United States v. Nelson, 277 F.3d 164, 178 (2d Cir. 20 0 2) (§ 1981 . . . extend[s] to protect the J ewish ‘race.’” (citation om itted)); see also St. Francis Coll., 481 U.S. at 612 (analyzing legislative history of Section 1981 and noting that the 1866 Congress considered J ews to be a distinct race). In analyzing claim s under Section 1981, courts use the sam e standards as applied in Title VII cases. See, e.g., Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 20 0 0 ).7 A hostile work environm ent claim pursuant to Section 1981 thus “requires a showing [1] that the harassm ent was sufficiently severe or pervasive to alter the conditions of the victim ’s em ploym ent and create an abusive working environm ent, and [2] that a specific basis exists for im puting the objectionable conduct to the em ployer.” Alfano v. Costello, 294 F.3d 365, 373-74 (2d Cir. 20 0 2) (citation and internal quotation m arks om itted). 1. Th e H aras s m e n t o f Plain tiff w as Su fficie n tly Se ve re o r Pe rvas ive The required showing with respect to the first prong “has objective and subjective elem ents: the m isconduct shown m ust be ‘severe or pervasive enough to create an objectively hostile or abusive work environm ent,’ and the victim m ust also subjectively perceive that environm ent to be abusive.” Id. at 374 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993)). The incidents of which a plaintiff com plains “m ust be m ore than episodic; they m ust be sufficiently continuous 7 Moreover, the sam e standards apply to both race-based and sex-based hostile work environm ent claim s. Id. 15 and concerted in order to be deem ed pervasive.” Carrero v. N.Y. City Housing Auth., 890 F.2d 569, 578 (2d Cir. 1989) (citation om itted); accord Fincher, 60 4 F.3d at 724. However, a single act can create a hostile work environm ent if it in fact works a “transform ation of the plaintiff’s workplace.” Alfano, 294 F.3d at 374 (citations om itted). In deciding whether this “threshold has been reached, courts exam ine the case-specific circum stances in their totality and evaluate the severity, frequency, and degree of the abuse.” Id. (citation om itted). Moreover, a plaintiff m ust establish that the actions were taken because of his race. See id. (“[I]t is ‘axiom atic’ that in order to establish a [race]-based hostile work environm ent under Title VII, a plaintiff m ust dem onstrate that the conduct occurred because of” his race (quoting Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 20 0 1))). Mangia argues the harassm ent of plaintiff was not sufficiently severe or pervasive because (1) the environm ent was not objectively hostile and (2) plaintiff did not subjectively perceive the environm ent to be abusive. Def.’s Mem . at 6-10 . The Court finds both of these contentions unpersuasive. With respect to the latter contention, Mangia m aintains that “Plaintiff cannot claim that he subjectively perceived the environm ent at Mangia 57 to be abusive since he desires to return to work at Mangia 57.” Def.’s Mem . at 7; see also Def.’s Reply at 5-6. Plaintiff does not dispute that he has been waiting for Mangia to hire him back, Pl.’s 56.1 Statem ent ¶ 44, but this fact is ultim ately irrelevant. As plaintiff notes, “whether or not [he] would like to work for [Mangia] in the future, now that the harassm ent has stopped, says nothing about how he perceived the work environm ent while the 16 harassm ent was ongoing.” Pl.’s Opp’n at 14.8 Viewed in the light m ost favorable to plaintiff, the evidence before the Court is at the very least sufficient to create an issue of m aterial fact as to whether plaintiff perceived the work environm ent at Mangia to be hostile and abusive. Plaintiff described the work environm ent at Mangia as “hell,” Warshawsky Decl. Ex. 2 (Wiercinski Dep.), at 282, and frequently com plained to Cym anow after suffering abuse at the hands of his coworkers, see, e.g., id., Ex. 2 (Wiercinski Dep.), at 273 (“A. I com plained to Margaret that he’s been m istreating m e, and she took no action. Q. When did you com plain to her? A. On num erous occasions.”). Moreover, plaintiff testified that this treatm ent caused him to feel intim idated. For exam ple, plaintiff described his reaction to the verbal abuse he suffered at the hands of Zbozien on his first day of work at Mangia as follows: “I was so intim idated, I didn’t know how to react to it. Every other m an would blow his head off for that, but I was kind of intim idated.” Id. Ex. 2 (Wiercinski Dep.), at 268.9 Based on 8 Indeed, plaintiff has acknowledged that the harassm ent he suffered at Mangia stopped on or about February 13, 20 0 7, after plaintiff’s counsel sent a letter to counsel for Mangia. Com pl. ¶ 55. 9 Both of the cases relied upon by Mangia in support of its contention that plaintiff did not subjectively perceive the environm ent at Mangia to be abusive are inapposite. Before the court in Witt was a “sworn statem ent [from the plaintiff] indicating that she did not subjectively believe that defendant[’s] . . . behavior was m otivated by an unlawful intent to discrim inate.” Witt v. Moffe, No. 0 3 Civ. 397A, 20 0 8 WL 324255, at *1 (W.D.N.Y. Feb. 6, 20 0 8) (granting defendant’s m otion for sum m ary judgm ent on hostile work environm ent claim ). Meanwhile, in Turner, there was no evidence adduced at trial that the plaintiff perceived her work environm ent to be abusive. Turner v. Int’l Union, Auto. Aerospace & Agr. Im plem ent Workers of Am ., 149 F.3d 1184, at *3 (6th Cir. 1998) (table) (affirm ing district court’s grant of defendant’s Fed. R. Civ. P. 50 (a) m otion on plaintiff’s sexual harassm ent claim ). 17 these facts, a reasonable jury could conclude that plaintiff perceived his treatm ent to be abusive. As for Mangia’s form er contention—that the environm ent was not objectively hostile—this argum ent also fails; a reasonable jury could find that the conduct and com m ents of plaintiff’s coworkers and supervisors were severe and pervasive enough to constitute a hostile work environm ent. Viewed in the light m ost favorable to plaintiff, the evidence shows that from 1999 through February 20 0 7, plaintiff suffered repeated offensive conduct and harassm ent due to his race.10 Zbozien frequently referred to plaintiff, am ong other things, as “stupid J ew,” “dirty J ew,” “fucking J ew,” told him to go away because it “sm ells of J ew,” and would say, “Fuck off, you stupid J ew.” Warshawsky Decl. Ex. 3 (Krajewski Dep.), at 37-39; id. Ex. 5 (Ubowski Dep.), at 48, 67; id. Ex. 2 (Wiercinski Dep.), at 271. On two occasions, Zbozien also m ade reference to Zyklon B in interactions with plaintiff. Id. Ex. 2 (Wiercinski Dep.), at 278-79. He also frequently refused to distribute to plaintiff his share of tips at the end of each shift— forcing one of his colleagues to do so—but on approxim ately 10 of the occasions in which he did interact with plaintiff, paid him part of his tip in pennies by tossing the pennies at him , the surrounding tables, and the floor. Id. Ex. 3 (Krajewski Dep.), at 31, 36; id. Ex. 2 (Wiercinski Dep.), at 272, 274-75. The evidence also establishes that other em ployees subjected plaintiff to both verbal and physical abuse—Bazgier, for exam ple, kicked plaintiff in the groin and called him a “fucking J ewish pederast faggot,” id. Ex. 2 (Wiercinski Dep.), at 289, while Sarosiek pushed plaintiff into a wall, telling him to “get the fuck out of here you fucking 10 Mangia euphem istically refers to a m ajority of the alleged derogatory com m ents as “m ere offensive utterances.” Def.’s Mem . at 9. 18 J ew,” id. Ex. 2 (Wiercinski Dep.), at 285. Even Cym anow m ade anti-Sem itic com m ents to plaintiff, stating to him on m any occasions that she blam ed the J ews for killing Christ. Id. Ex. 2 (Wiercinski Dep.), at 253-54. Taken as a whole, this evidence decidedly creates a genuine issue of m aterial fact as to whether a reasonable em ployee would have found the conditions of his em ploym ent “sufficiently continuous and concerted in order to be deem ed pervasive,” thereby “alter[ing] the conditions of the [plaintiff’s] em ploym ent and creat[ing] an abusive working environm ent.” Perry, 115 F.3d at 149 (citations and internal quotation m arks om itted).11 2 . Th e re is a Bas is fo r Im p u tin g th e Mis co n d u ct to Man gia The second prong requires grounds for im puting the m isconduct to the em ployer. Plaintiff has described conduct by both his coworkers—Bazgier and Sarosiek—and his supervisors 12 —Cym anow and Zbozien. The actionable conduct of plaintiff’s supervisors is autom atically im puted to Mangia, unless it can establish by a preponderance of evidence that it “exercised reasonable care to prevent and correct prom ptly any [discrim inatory] harassing behavior,” and (2) “the plaintiff em ployee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the 11 Focusing on the am ount of tips plaintiff received and his duties and responsibilities versus that of other Mangia em ployees, Mangia also m aintains that plaintiff’s “alleged treatm ent was not based on his m em bership in a protected class.” Def.’s Mem . at 12. This argum ent is beside the point. As plaintiff notes, he does not contend that Mangia discrim inated against him in the assignm ent of work or in the paym ent of wages but instead that he was subject to a hostile work environm ent at Mangia because of his race. 12 An em ployee is a supervisor “if he has the actual authority to direct another em ployee’s day to day work activities in a m anner that m ay increase the em ployee’s workload or assign additional or undesirable tasks.” Mack v. Otis Elevator Co., 326 F.3d 116, 126 (2d Cir. 20 0 3). The parties do not dispute that Cym anow and Zbozien were plaintiff’s supervisors. 19 em ployer or to avoid harm otherwise.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 80 7, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998). The actions of plaintiff’s coworkers will be im puted to Mangia if it “either provided no reasonable avenue for com plaint or knew of the harassm ent but did nothing about it.” Murray v. N.Y. Univ. Coll. Of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995) (internal quotations and citations om itted). “If the evidence creates an issue of fact as to whether an em ployer’s action is effectively rem edial and prom pt, sum m ary judgm ent is inappropriate.” Gallagher v. Delaney, 139 F.3d 338, 348 (2d Cir. 1998), abrogated on other grounds by Ellerth, 524 U.S. 742; see also Whidbee, 223 F.3d at 72 (“[W]e have held that if harassm ent continues after com plaints are m ade, reasonable jurors m ay disagree about whether an em ployer’s response was adequate.” (citations om itted)). Mangia contends there is no basis to im pute the alleged conduct to it “because as a m atter of law, [Mangia] prom ptly addressed issues when Plaintiff reported them and Plaintiff consistently failed to com plain of alleged conduct.” Def.’s Mem . at 15. Mangia is m istaken. Viewing the evidence in the light m ost favorable to plaintiff, the Court concludes that there are num erous factual issues about the prom ptness and adequacy of Mangia’s rem edial response to plaintiff’s com plaints such that Mangia’s m otion for sum m ary judgm ent m ust be denied. For exam ple, plaintiff com plained to Cym anow about the treatm ent he received at the hands of Zbozien during the tip distribution process “[o]n num erous occasions” only to be m et with the response that she was too busy to deal with the com plaints. Warshawsky Decl. Ex. 2 (Wiercinski Dep.), at 273. Sim ilarly, plaintiff testified that Cym anow took no action when he com plained to her after Zbozien 20 sprinkled salt on his food and m ade the Zyklon B com m ent and after Bazgier kicked plaintiff in the groin and called him “a fucking pederast J ewish faggot.” Id. Ex. 2 (Wiercinski Dep.), at 280 , 289-90 . While it is true, as Mangia contends, that in response to a com plaint from plaintiff regarding Zbozien’s treatm ent of him , Cym anow took rem edial action by transferring Zbozien to another Mangia location, there is a fact question about the adequacy of this response as two or three weeks after being transferred, Zbozien returned to Mangia 57—a situation plaintiff described as “hell all over again.” Id. Ex. 2 (Wiercinski Dep.), at 282.13 Accordingly, because there are disputed issues of fact as to whether Mangia’s actions in response to plaintiff’s com plaints were effectively rem edial and prom pt, Mangia’s m otion for sum m ary judgm ent is denied. 3 . Th e Partie s Agre e th at Plain tiff is n o t En title d to Fro n t Pay, Back Pay, an d Fu tu re Ea rn in gs Mangia also contends that because plaintiff failed to m itigate his dam ages, his claim s for front pay, back pay and future earnings should be dism issed. Def.’s Mem . at 16-17. Plaintiff responds that his failure to m itigate his dam ages is irrelevant because he 13 Nowhere does plaintiff testify that Zbozien’s harassm ent of him stopped after Zbozien returned to Mangia 57. The testim ony Mangia relies on in support of this contention is as follows: Q. Were there any other incidents between you and Mr. Zbozien? A. Nothing worth m entioning here. During the counting procedures, quote “I’m not going to deal with this fucking J ew,” and Bazgier com ing instead of him and throwing pennies at m e. Q. But anything other than what you already testified to? A. No. I don’t recall at this tim e. Warshawsky Decl. Ex. 2 (Wiercinski Dep.), at 284. 21 “is not pursuing such dam ages in this case” an d, in any event, “[f]ront pay, back pay, and future earnings are not com ponents of recoverable dam ages for hostile work environm ent (in the absence of constructive discharge).” Pl.’s Opp’n at 23 (citing Locicero v. N.Y. City Transit Auth., No. 0 6 Civ. 4793 (FB) (J O), 20 10 WL 5135875, at *5 (E.D.N.Y. Dec. 10 , 20 10 )). In light of the parties’ agreem ent that plaintiff is not entitled to such dam ages on his hostile work environm ent claim , to the extent plaintiff’s com plaint seeks dam ages for front pay, back pay, and future earnings with respect to the claim , the claim for such dam ages is dism issed. III. CON CLU SION For all of the foregoing reasons, Mangia’s m otion for sum m ary judgm ent is GRANTED as to plaintiff’s Title VII claim and DENIED as to plaintiff’s Section 1981 claim . To the extent the com plaint seeks dam ages for front pay, back pay, and future earnings with respect to plaintiff’s Section 1981 claim , the claim for such dam ages is dism issed. SO ORDERED. Dated: Brooklyn, New York J une 18, 20 12 / s/ I. Leo Glasser Senior United States District J udge 22