Martin v. Walgreen Co. et al, No. 1:2016cv09658 - Document 58 (S.D.N.Y. 2018)
Court Description: ORDER AND OPINION GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGEMENT re: 37 MOTION for Summary Judgment . filed by Mike Conway, Walgreen Co., Duane Reade Inc., Michael Geyer. For the reasons stated above, Defendants' mot ion for summary judgment is granted. Oral argument currently scheduled for August 14, 2018 is cancelled. The Clerk shall terminate the motion (Dkt. No. 37), grant judgment in Defendants' favor, dismissing the complaint, with costs to be taxed by the Clerk. The Clerk shall mark the case closed. SO ORDERED. (Signed by Judge Alvin K. Hellerstein on 8/9/2018) (rj)
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Martin v. Walgreen Co. et al Doc. 58 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------- X TEASIA MARTIN, Plaintiff, -againstWALGREEN CO., DUANE READE INC., ALAMGIR KABIR, Individually, MICHAEL GEYER, Individually, VIVIAN GHOBRIAL, Individually, and MIKE CONWAY, Individually, Defendant. -------------------------------------------------------------- X ORDER AND OPINION GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 16 Civ. 9658 (AKH) USDCSDNY DOCUMENT ELECTRO NI CALLY FILED DOC#: . IlATE ~-, IL_E_~_:-~.....,,.1/1/i="f_f_ _ ALVIN K. HELLERSTEIN, U.S.D.J.: Plaintiff Teasia Martin brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Count I and II), and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code§ 8-101 et seq. (Count III, IV, V, VI), alleging that her employer, Defendants Walgreen Co. and Duane Reade Inc. (together "Duane Reade"), 1 and her managers and supervisors, Defendants Alamgir Kabir, Michael Geyer, Vivian Ghobrial, and Mike Conway, engaged in unlawful discriminatory and retaliatory practices. In particular, Martin alleges that, beginning around May 2015, after working for Duane Reade since 2007, her coworkers would "harass Plaintiff Martin by holding their noses with two fingers whenever she walked by them, suggesting that Plaintiff Martin smells. Each time this would occur, everyone who was present, including Defendant Kabir, would then all begin to laugh." Complaint at~ 26. Plaintiff logged various complaints with her supervisors about these workplace issues. On October 27, 2015, Plaintiff and coworker Dilruba Khanam had a verbal and physical altercation 1 Walgreen and Duane Reade have common management and share centralized control of labor relations. Complaint at ,r 11. Dockets.Justia.com while servicing customers at the Duane Reade store where they worked. Martin's employment was suspended on November 2, 2015, and ultimately terminated on November 23, 2015. Defendants now move for summary judgment, see Dkt. No. 37, arguing that they took appropriate action in response to Plaintiffs complaints, and that they ultimately terminated Plaintiff because of her unprofessional conduct on October 27, a legitimate non-discriminatory and non-retaliatory reason. I agree with Defendants. There are no material issues of fact, and, for the reasons described below, I grant Defendants' motion and give judgment to Defendants. Defendant Ghobrial has never been served in this case, and Defendant Kabir, who is no longer represented by counsel, did not join in the instant motion for summary judgment. I find, however, that the arguments presented herein apply equally to all Defendants, and I therefore dismiss the Complaint in its entirety. COMPLAINT Backgroun d Plaintiff Teasia Martin began working for Duane Reade in 2007 at the 385 Fifth Avenue location, and worked there until her termination in 2015. See Rule 56.1 Statements at~ 1. 2 Since 2014, Defendant Kabir has been the store manager at 385 Fifth Avenue. 11. Since 2011, Dilruba Khanam has been the head cashier, but Khanam did not have supervisory authority over Martin. 13-14. Khanam, Chanmatie Rampersaud, and Babul Shakar were Martin's coworkers. Around May 2015, Martin approached Khanam about her belief that Shakar "held his nose at Martin." , 15. Later that day, Martin met with Kabir, and with assistant store managers 2 Unless otherwise noted, paragraph symbols("~[") refer to paragraphs in Defendants' Statement of Undisputed Facts, Dkt. No. 37, and corresponding paragraphs in Plaintiff's Opposition Statement, Dkt. No. 44. Unless otherwise notes, the stated facts are not disputed by the parties. 2 ,. Gus Geter and Ahsan Nasimu l, to discuss Martin's allegations. ,r 20. The manage rs reviewe d the store's video footage, which did not corrobo rate Martin's allegatio ns, and no actions were taken against Shakar. ,r,r 21-22. About two days later, Martin claimed to Khanam that Ramper saud was touching her nose when Martin passed by. ,; 25. Martin did not complai n to manage ment about these allegations. ,r 27. About two weeks later, Martin accused Khanam of holding her nose at Martin. ,r 28. Khanam averred that that she could not have touched her nose since both she and Martin were at their own registers. incident that day. before." ,r 29. ,r 30. Khanam , Martin, and the assistan t store manage rs discusse d the The followin g day, Martin "hugged Khanam and apologiz ed for the day ,r 34. At some (unident ified) later date, Kabir spoke with Martin about the nose-ho lding allegatio ns. incident s. ,r 43. Martin could not provide dates and times of, or witnesse s to, the alleged ,r,r 44--45. Kabir advised Martin and Khanam not to argue with one another. ,r 50. Kabir also consulte d with Human Resourc es General ist Vivian Ghobria l on how to proceed . ,r 53. On July 1, 2015, Martin reached out to her Union, Local 338 RWDSU /UFCW , to discuss the coworke r issues she was having. ,r 56. Martin spoke with Union Represe ntative Holly Hanraha n in mid-Jul y 2015 during Hanraha n's visit to the store. Hanraha n contacte d Defenda nt Geyer of Human Resourc es. did not know Martin. ,r 65. ,r 64. Geyer did not cover the 385 Fifth Avenue location, and he Hanraha n then reached out to Ghobrial. ,r 66. On July 17, 2015, Ghobria l spoke with Kabir about Martin's allegatio ns. 20, Ghobria l notified Martin that she would be handling Martin' s complai nts. and Martin met in person to discuss the complai nts. 3 ,r 72. ,r 68. ,r 70. On July Ghobria l Ghobria l testified that "the only thing 'I. that [Martin] mentio ned was [Khanam] holding her nose. She didn't mentio n any other complaints, just her holding her nose, that's it." ,r 73. Ghobrial investigated Martin 's complaints and spoke with other employees at the store. 80. Ghobrial conclu ded that Martin 's allegations were unfounded. ,r 84. ,r Ghobrial told Martin that, if she had any issues, she should speak with the store manage r, the union representative or Ghobrial, but not with Khanam. ,r 87. Ghobrial provide d Martin with the option to transfer to a different store location. Martin declined the offer. Soon after speakin g with Ghobrial, Martin reached out to Defend ant Michae l Conway, the District Manag er of Pharma cy and Retail Operations for Duane Reade. ,r 91. Per Conwa y's request, Martin sent a letter dated July 27, 2015, which detailed her allegati ons that her coworkers, includi ng Shakar and Khanam , were holding their noses at her and making fun of her, and that the store manag er would "laugh as if it was funny." ,r,r 96, 101. In the letter, Martin also alleges that a "femal e co-wor ker" (presumably Khanam ") called Martin a "monk ey." ,r 98. Martin forwarded the letter to Ghobrial, and Ghobrial investigated the allegati ons in the letter. Khanam denied calling Martin a "monk ey." ,r 111. October 27 Incident A few months later, on Octobe r 27, 2015, there was an incident betwee n Martin and Khanam. Martin was speaking with a cowork er while a custom er was waiting to be serviced. 122. Khanam asked Martin and the other cowork er whethe r they were "blind. " ,r 123. ,r In the ensuing momen ts, there was a verbal and near-physical altercation betwee n Martin and Khanam. Martin yelled profanities at Khanam, accused her of having sex with her manage rs, came behind the register where Khanam was standing, and invaded her physical space. ,r,r 124, 127. A coworker, Rampersaud, stood betwee n Martin and Khanam to preven t a physica l fight from following. ,r 132. A surveillance video, review ed by the Court and attached as Exhibit Y to the 4 .... Declaration of Aaron Warshaw, Dkt. No. 40, recorded the incident. Assistan t store manage r Geter sent Martin and Khanam home for the day. ,r 13 5. Suspension of Martin On Novemb er 2, 2015, after confirming with Ghobrial, Kabir suspend ed Martin and Khanam over their unprofessional conduct on October 27, 2015. Ghobrial investigated the October 27 incident, and contacted Hanrahan. , 145-46. Followi ng her suspension, Martin sent a letter to Duane Reade's Human Resources Departm ent (Novem ber 2 nd Letter) and, on the same day, filed a complai nt with the New York State Departm ent of Labor (NYSDO L Complaint). if 147-48. The Letter and Complaint mirrored the complaints Martin made in her July 27 th Letter, and further alleged that Khanam called Martin a "black dog" and a "prostitu te" during the October 27 incident. ,r 151. The Novemb er 2 nd Letter was forwarded to Ghobrial who investigated the allegations. No witnesses to the October 27 incident recounte d hearing Khanam use the terms "black dog" or "prostitu te." ,r 153. Khanam, who had also been suspended, contacted her union representative (Hanrahan), who reached out to Ghobrial to discuss Khanam 's suspension. ,r 154. Khanam , Ghobrial, and Hanraha n met on Novemb er 9, 2015, and Ghobrial questioned Khanam about Martin's namecalling allegations, which Khanam denied. ,r 155-158. Khanam claimed that Martin had called her those names, and that Martin was the aggressor in the altercation. Id. Notwith standing Khanam 's denials, Ghobrial recomm ended that she be terminated for unprofessional conduct in arguing in front of customers. ,r 159. Hanraha n disagreed with Ghobria l' s decision, and, after bringin the matter to Vice President of Local 338 Jack Caffey and to Ghobria l's manage r Paul Logosso, achieved a reconsideration of Ghobria l' s decision to terminate Khanam. Khanam returned to work on Novemb er 24, 2015. Termination of Martin 5 ,r 167. ,r 160-166. On Decemb er 1, Ghobria l recomm ended to Kabir, Conway, and Logosso that Martin's employm ent be terminated. 172. Martin was termina ted on Decemb er 2. 173. A grievanc e meeting was held between Ghobrial, Martin, and Lisa Polise (who replaced Hanraha n as Martin' s union representative) on Decemb er 8. 177. Followi ng the meeting , Martin's employm ent was not reinstated. 182. Martin testified that both her race and national origin are "black. "~ 192. Claims The Compla int contains six causes of action: unlawful discrimi nation under Title VII, 42 U.S.C. § 2000e et seq. (Count I); retaliati on under Title VII (Count II); discrimi nation under the New York City Human Rights Law (NYCH RL), N.Y. Adminis trative Code§ 8-107(1 ) et seq. (Count III); retaliati on under NYCHR L (Count IV); aiding abetting discrimi natory practice s under NYCHR L, § 8-107(6) (Count V); and employe r liability for employe es' discrimi natory conduct under NYCHR L, § 8-107(13) (Count VI). LEGAL STANDARD A court should grant summar y judgme nt ifthere "is no genuine dispute as to any material fact and the movant is entitled to judgme nt as a matter oflaw." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,322 (1986). A genuine issue of material fact exists "if the evidenc e is such that a reasona ble jury could return a verdict for the nonmov ing party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). The court must "view the evidenc e in the light most favorable to the party opposin g summar y judgme nt ... draw all reasonab le inferences in favor of that party, and ... eschew credibil ity assessm ents." Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 122 (2d Cir. 2004). However, the non-mo ving party may not rely on conclus ory allegations or unsubstantiated speculat ion to defeat the summar y judgme nt motion. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). 6 DISCUSSION I. The Discrimination Claims are Dismissed a. Legal Standards "All of [Plainti ffs] claims, save her claim under the NYCHRL, are analyzed under the burden-shifting framework of McDonn ell Douglas Corp. v. Green, 411 U.S. 792 (1973)." Simmon s v. Akin Gump Strauss Hauer & Feld, LLP, 508 F. App'x 10, 12 (2d Cir. 2013). "Under the McDonnell Douglas framework, [Plaintiff is] required to make out a prima facie case of discrimination by showing: (1) membership in a protected class, (2) satisfactory job performance, (3) adverse employment action, and (4) circumstances giving rise to an inferenc e of discrimination on the basis of her membership in that class." Id. If a plaintiff establishes a prima facie case, a presumption of discrimination is created and the burden of production shifts to the defendant to articulate some legitimate, nondiscriminato ry reason for the adverse employment action or termination. See McDonnell Douglas, 411 U.S. at 802-03. "If the defendant bears its burden of production, the presumption drops out of the analysis and the defendant will be entitled to summary judgment ... unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001) (internal citations and quotation marks omitted). To do so, Plaintiff must produce "not simply some evidence, but sufficient evidenc e to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely than not discrimination was the real reason" for the challenged actions. Van Zant v. KIM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir.1996 ) (internal quotation marks omitted). 7 "[Plain tiffs] claim under the NYCHRL requires an independent analysis, as the New York statute, amended by the Local Civil Rights Restoration Act of 2005, was intended to provide a remedy reaching beyond those provided by the counterpart federal civil rights laws. To prevail on its motion for summary judgment, the [Defendant isJ required to meet its burden of showing that, based on the evidence before the court and drawing all reasonable inferences in [Plaint iffs] favor, no jury could find that the [Defendant] treated [Plaintiff] 'less well' than other employees at least in part because of her race." Simmons, 508 F. App'x at 1 (quotin g Williams v. NYC Haus. Auth., N.Y.S.2d 27, 39 (1st Dep't 2009)). "In assessing the inferences that may be drawn from the circumstances surroun ding a termination of employment, the court must be alert to the fact that [e]mployers are rarely so cooperative as to include a notation in the personnel file that their actions are motiva ted by factors expressly forbidden by law." Chambers v. TRM Copy Centers Corp., 43 F .3d 29, 37 (2d Cir. 1994) (internal quotation marks omitted). "[C]aution must be exercised in granting summary judgment where intent is genuinely in issue .... " Id at 40. The Second Circuit has "repeatedly expressed t4e need for caution about granting summary judgment to an employ er in a discrimination case where, as here, the merits turn on a dispute as to the employ er's intent." Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008). "Even in the discrim ination context, however, a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment." Id. b. Application Defendants have adequately rebutted Plainti ffs prima facie case (if any) of racial discrimination by articulating a legitimate non-discriminatory reason for their business decision. Plaintiff engaged in unprofessional conduct on October 27, 2015, which led immed iately to her 8 suspen sion and ultimat ely to her termina tion. Plainti ff has not produc ed eviden ce to suppor t a rationa l finding that "the legitim ate, nondis crimina tory reasons proffer ed by the employ er were false, and that more likely than not discrim ination was the real reason" for the challen ged actions. Van Zant, 80 F.3d at 714. Ghobri al, who recomm ended that Martin be termina ted, also recomm ended that Khana m be termina ted. That Khanam was ultimat ely reinsta ted does not cast doubt on the conclu sion that Defend ants had a legitim ate reason to termina te Martin . In fact, Martin conced es in her brief that her termina tion was motiva ted by nondis crimina tory reasons . 3 This admiss ion is fatal to Plainti ffs discrim ination claims. To suppor t her discrim ination claims, Plainti ff points not to her termina tion, which she conced es was not motiva ted by discrim ination , but to the comme nts of Khanam and Kabir, which Martin refers to as the "adver se employ ment actions ." But such comme nts are not themselves employ ment actions. They are best analyze d under the hostile work environ ment framew ork discuss ed below. II. The Hostile Work Environment Claims are Dismissed a. Legal Standards "A hostile work environ ment claim require s a showin g (1) that the harassm ent was sufficie ntly severe or pervasi ve to alter the conditi ons of the victim 's employ ment and create an abusive workin g environ ment, and (2) that a specifi c basis exists for imputin g the objecti onable conduc t to the employ er." Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (internal quotati on marks omitted ) (quotin g Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir.199 7)). 3 "In their motion, Defendants argue that Ms. Martin's employment was terminat ed for a legitimate nondiscriminatory reason, i.e., violation of company policy and due to her own miscond uct. However, Ms. Martin has not alleged that Defendants' decision to terminate her employment was due to Defendants' discriminatory animus. Plaintiff does not allege that she has suffered discriminatory termination, but suffered a retaliatory termination.... Ms. Martin does allege that he adverse employment action she suffered were Khanam's and Defendant Kabir's racially discriminatory comments, discussed supra." See Opposition at 8. 9 "The plainti ff must show that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment were thereby altered." Id The Second Circuit has "directed courts to determine whether an environment is sufficiently hostile or abusive by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humilia ting, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (internal quotation marks omitted) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). "[A] plaintiff alleging a hostile work environment must demonstrate either that a single inciden t was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted' to have altered the conditions of her working environment." Alfano, 294 F.3d at 374 (internal quotation marks omitted). b. Application Martin alleges that Defendants created a hostile work environment, 4 pointing to (a) her coworkers holding their noses at Martin; (b) Kabir' s single comment around July 2015 calling Martin a "monkey"; and (c) Khana m's single comment on October 27 calling Martin a "black dog." Reviewing the record in the light most favorable to Plaintiff, as I discuss below, I cannot find that the work environment was "sufficiently severe or pervasive to alter the conditions" of employment. Nor can I find a specific basis for imputing the objectionable conduc t to the employer. 4 The Complaint does not specifically allege hostile work environment, but only "discrimination" under Title VII and NYCHRL. Read liberally, I construe the Complaint to include the (associat ed) hostile work environment claims. 10 When she met with Kabir in the summer of 2015, Plaintif f was unable to provide specific dates or times of the alleged nose-holding, and Plaintif f has similarly not furnished the record with such details. Martin testified to a few instances of her coworkers holding their noses, but in each instance the coworke rs denied the allegations and the supervisors met with the respecti ve coworkers to investigate the allegations. Martin was consistently in touch with Ghobria l who offered Martin the opportu nity to transfer locations. Further, regardin g the commen ts by Kabir and Khanam, such sporadic comments, alleged to have each occurred only once, are not "pervas ive" enough to create a hostile work environment. I consider "the frequency of the discriminatory conduct; its severity; whether it is physically threaten ing or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work perform ance." Faragher, 524 U.S. at 787-88. I cannot say that these scattered incident s "altered the conditio ns" of employm ent or that they were anything more than "offensi ve," as opposed to discriminatory, conduct and speech. Nor can I say, even under the broader standards ofNYC HRL, that Martin was treated "less well" on the basis of her race. Furthermore, a plaintiff must also show a basis for imputing the conduct to the employe r. Alfano, 294 F.3d at 373. Where "the alleged harasser is in a supervis ory position over the plaintiff, the objectionable conduct is automatically imputed to the employe r." Gorzyns ki v. JetBlue Airways Corp., 596 F.3d 93, 103 (2d Cir. 2010). "[W]he n the harassm ent is attributa ble to a coworker, rather than a supervisor, ... the employer will be held liable only for its own negligence. Accordingly, [the plaintiff] must demonstrate that her employe r failed to provide a reasonable avenue for complai nt or that it knew, or in the exercise of reasona ble care should have known, about the harassm ent yet failed to take appropriate remedial action." Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009) (internal citations and quotation marks omitted) . 11 Here, while Kabir was a supervisor, Khanam and the other cowork ers were not. When the actions of such cowork ers were brough t to Duane Reade' s attention, it procee ded with appropriate action and initiated investigations through the various manage rs and personnel. Any discrim inatory action by the employ ees cannot be impute d here to the employ er. For much the same reasons, Count VI of the Compl aint, seeking to hold the employ er liable under NYCH RL § 8-107(13)(b) fails. Section 8-107( 13)(b) impose s vicarious liability on an employ er for discrim inatory acts by its employ ees or agents where: "(1) the employ ee or agent exercis ed manage rial or supervi sory responsibility; or (2) the employ er knew of the employ ee's or agent's discrim inatory conduct, and acquies ced in such conduc t or failed to take immed iate and appropriate corrective action; an employ er shall be deemed to have knowle dge of an employ ee's or agent's discrim inatory conduc t where that conduc t was known by another employ ee or agent who exercis ed manage rial or superv isory responsibility; or (3) the employ er should have known of the employ ee's or agent's discrim inatory conduc t and failed to exercise reasona ble diligence to preven t such discriminatory conduc t." Plainti ff has failed to raise a triable issue of fact that the employ er acquies ced to discriminatory conduc t or failed to exercise reasona ble diligence to preven t it. III. The Retaliation Claims are Dismis sed a. Legal Standards Retalia tion claims are also analyze d under the burden shifting framew ork of McDoddell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, the plainti ff must first establis h a prima facie case of retaliat ion by showin g that ( 1) he was engage d in protect ed activity; (2) the defend ant was aware of the protect ed activity; (3) he suffere d a materia lly adverse action; and (4) there is a causal connec tion betwee n his protect ed activity and the 12 material adverse action. See Lore v. City ofSyracuse, 670 F.3d 127, 157 (2d Cir. 2012). "[P]roof of causation can be shown either: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant." Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000). If the plaintiff establishes a prima facie case, then the burden shifts to the employer to articulate a legitimate, non-retaliatory reason for the adverse action. Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005). Once the employer offers such proof, the burden shifts back to the employee, who "must show that retaliation was a substantial reason for the adverse employment action." Id. At step three, the plaintiff must demonstrate "that the desire to retaliate was the but-for cause of the challenged employment action," and if she fails to do so, her claims are dismissed. See Ya-Chen Chen v. City Univ. of New York, 805 F.3d 59, 70, 73 (2d Cir. 2015). "[T]he retaliation inquiry under the [NY]CHRL is 'broader' than its federal counterpart. Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 723 (2d Cir. 2010) (quoting Williams v. NY City Haus. Auth., 872 N.Y.S. 2d 27, 34 (1st Dep't 2009)). Under the NYCHRL, retaliation "in any manner" is prohibited, and "[t]he retaliation ... need not result in an ultimate action with respect to employment ... or in a materially adverse change in the terms and conditions of employment." N.Y.C. Admin. Code§ 8-107(7). However, "[t]he functional difference, if any, between the [NY]CHRL standard and that used for federal and state retaliation claims has never been fully articulated." Fincher, 604 F.3d at 723. b. Application 13 Here, Plaintiff's retaliation claims fail at step one. Plaintiff argues that she submitted complaints on July 27, 2015 and later on November 2, 2015, and that she was ultimately terminated on December 2, 2015, in retaliation for her complaints. The "materially adverse action" (her termination) occurred four months after her July 27 compl aint, and the November 2 complaint occurred after the events giving rise to her termination (i.e., the October 27 incident). The circumstantial evidence does not show any "causal connection betwe en [Plaintiff's] protected activity and the material adverse action." Lore, 670 F.3d at 157. Furthermore, even if Plaintiff had made out a prima facie case of retalia tion, Defendants have adequately rebutted it by articulating a legitimate non-discriminatory reason for their business decision. Plaintiff engaged in unprofessional conduct on Octob er 27, 2015, which led immediately to her suspension and ultimately to her termination. Plaint iff has not produced evidence to support a rational finding that the "that retaliation was a substa ntial reason for the adverse employment action." Jute, 420 F.3d at 173. Plaintiff fails to raise a triable issue of fact to support a claim under Title VII or even under the more favorable standa rds of the NYCHRL. IV. Aidin g and Abetti ng An individual defendant may also be held personally liable under the NYCHRL if he participates in the conduct giving rise to the discrimination claim. Schan jield v. Sojitz Corp. of Am., 663 F. Supp. 2d 305,3 44 (S.D.N.Y. 2009). "However, liability under the [NY]HRL and the NYCHRL must first be established as to the employer/principal before an individual may be considered an aider and abettor." Sowemimo v. D.A.O.R. Sec., Inc., 43 F.Supp.2d 477,4 90 (S .D .N. Y.1999). Here, the only defendant alleged to have engaged in discriminatory condu ct is Kabir. However, as mentioned above, Kabir's conduct is insufficient to suppo rt a claim for 14 ,. discrimination, hostile work environment, or retaliation . Further, as discussed above, there is no viable claim against the employer/principal. The aidin g and abetting claims therefore fail. CONCLUSION For the reasons stated above, Defe ndan ts' motio n for summ ary judgm ent is granted. Oral argument currently scheduled for Augu st 14, 2018 is cance lled. The Clerk shall terminate the motio n (Dkt. No. 37), grant judgm ent in Defe ndan ts' favor , dismissing the complaint, with costs to be taxed by the Clerk. The Clerk shall mark the case closed. Dated: Augu st , 2018 New Y rk, New York United States District Judge 15
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