Lambert v Macy's E., Inc.

[*1] Lambert v Macy's E., Inc. 2010 NY Slip Op 52434(U) Decided on April 30, 2010 Supreme Court, Kings County Rothenberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 30, 2010
Supreme Court, Kings County

Anthony Lambert, Plaintiff,

against

Macy's East, Inc., Federated Department Stores, Inc., Maryanne Cadmus, and Cindy Coulson, Defendants.



25547/05



Counsel for plaintiff

Thompson Wigdor LLP

85 Fifth Avenue

New York, New York 10003

Counsel for defendant

Howrey LLP

1299 Pennsylvania Ave NW

Washington, DC 20004

Karen B. Rothenberg, J.

The following papers numbered 1 to 8 read on these motions:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-2 3-4

Opposing Affidavits (Affirmations)6

Reply Affidavits (Affirmations) [*2]

Affidavit (Affirmation)

Other Papers Memoranda of Law5, 7, 8

Upon the foregoing papers, defendants Macy's East, Inc. (Macy's), Federated Department Stores, Inc. (Federated),[FN1] Maryanne Cadmus (Cadmus), and Cindy Coulson (Coulson) move for an order, pursuant to CPLR 3212, granting summary judgment dismissal of the Complaint and all other claims against it in this employment discrimination action.

In a separate second motion, defendants also move for an order, pursuant to CPLR 2004 and 3212 (a), granting an extension of time to serve a late motion summary judgment.

FACTS AND PROCEDURAL HISTORY

Plaintiff Anthony Lambert (Lambert) is an African American male who was twenty seven years old in 1999 when he began working at Macy's as an Operations Manager in the Security Division (an entry-level management position). Previously, he worked at Lord and Taylor, another major department store, where he was responsible for payroll and managing employees. Plaintiff alleges that during his employment at Macy's he was subjected to discriminatory policies and practices based on his race and/or color. According to Lambert, some of the Caucasian executives at Macy's told racial jokes and uttered racial slurs in Lambert's presence,[FN2] while others ignored and refused to interact with him, treated him hostilely, and/or spoke to him in a belittling and demeaning manner.

In or about March 2000, Lori Young (Young), a Caucasian woman, his direct supervisor, and one of the Directors of Operations, resigned from employment. Prior to being made Director of Operations, Young was Operations Manager for six months, in the same position that plaintiff held. Lambert had repeatedly asked Cadmus, another supervisor who was also Caucasian, whether he could apply for the Director of Operations position. Each time, Cadmus told him that the reason he could not be promoted to Director of Operations was because he had not received payroll training, which allegedly only she could provide for him.[FN3] Lambert avers that he was unaware of any other means of applying for the job. Nevertheless, he claims that, as Operations Manager, he still performed most of the Director of Operations duties, except for payroll functions. [*3]

In September 2000, Macy's hired Dominic Trocchia (Trocchia), a Caucasian male, as the new Director of Operations. Prior to being hired by Macy's, Trocchia had worked only in law enforcement and private security. Lambert avers that he spent considerable time training Trocchia to perform the Director of Operations duties. Cadmus also provided Trocchia with the requisite payroll training for the job. When Trocchia resigned approximately six months later due to difficulty making the transition from law enforcement to the retail industry,[FN4] Lambert again asked Cadmus if he could be promoted to Director of Operations, but was again told that he lacked the necessary payroll training. When he requested that she provide this training, she continually refused, allegedly without reason. Macy's then hired Coulson, a Caucasian female, to be the new Director of Operations. Lambert claims that he trained Coulson to perform the job as well.

Shortly thereafter, Cadmus approached Lambert with an offer to accept a job as a Civil Recovery Manager, which she explained was not a demotion, but rather a lateral transfer. Lambert told her he was not interested in the transfer. Subsequently, Brian Fuller (Fuller), a Caucasian male who was the Director of Security Administration, also asked Lambert to accept job as the Civil Recovery Manager as a "big favor" to him because Lambert was the only person who could succeed in that role, given his success as Operations Manager. When plaintiff told him he had no experience in Civil Recovery, Fuller assured him he would receive the training necessary to be successful. Lambert ultimately accepted the transfer as a favor to Fuller, based on Fuller's assurances, and after conferring with Cadmus, who told him that the job was approximately 90-95% finance-related.

However, Lambert avers that as soon as he started working as Civil Recovery Manager, Fuller asked Lambert to finish projects left incomplete by his predecessor, rather than providing him with necessary training. He asserts that even though he repeatedly asked Fuller and Coulson for training in Civil Recovery, they refused to do so.[FN5] Lambert claims that the position was not finance-related at all, he had no training or experience for the position, and was forced to learn the job skills of Civil Recovery on his own.

While working as Civil Recovery Manager, Lambert reviewed statistics pertaining to individuals that Macy's detained for theft and/or shoplifting and noticed that over 90% of [*4]those individuals were non-Caucasian. Thomas Roan (Roan), the Vice President of Security at Macy's, explained that all the arrests were justified (see Transcript of Thomas Roan, annexed as Exhibit E to plaintiff's opposition papers, at 213-216). Lambert alleges that he directed his complaints about such alleged racial discriminatory practices to Mitch Borger (Borger), the in-house counsel at Macy's, but Borger allegedly did nothing to address them.[FN6]

In March 2002, Fuller informed Lambert that he was forced to place him on "written caution," despite never having received any criticism of his performance as Civil Recovery Manager. When plaintiff questioned the designation, Fuller allegedly thought it was unfair and did not think Lambert deserved it, but Cadmus had told him he had no choice. Cadmus had purportedly attempted to place Lambert directly on "written warning," but the customary policy at Macy's is to first place an employee on caution before placing him or her on warning. According to the written caution document (annexed as Exhibit 10 to defendants' moving papers), which Lambert refused to sign, Lambert had problems understanding the scope and responsibility of his position and needed to improve his communication and prioritization skills.

When Fuller resigned from employment in June 2002, Coulson became Lambert's supervisor and placed him on "written warning" in early July, despite being his supervisor for only a couple weeks. When plaintiff asked why he was placed on warning, Coulson was allegedly unable to answer. According to Cadmus' deposition testimony, Lambert's performance as Operations Manager was mediocre.

On July 12, 2002, plaintiff filed a written complaint with Macy's Human Resources department against both Cadmus and Coulson, claiming that they had harassed him and created a hostile work environment (the July 2002 Complaint). The Human Resources representative who investigated Lambert's complaint, Jennifer Tejada (Tejada), informed him that the complaint was insufficient because it did not include examples, but did not tell him that he needed to include every instance of harassment and/or discrimination. Plaintiff amended his complaint to include the most recent example of harassment, but did not mention any racial jokes or slurs by his supervisors or co-workers. After interviews with Lambert and Cadmus, who plaintiff had identified as one of his harassers, Tejada determined that the complaint was unsupported. [*5]

Lambert was taken off warning status in January 2003, six months after he was given that designation.[FN7] Nevertheless, in 2003 Lambert was given what he called a "discriminatorily harsh review" for his performance at work during the year 2002.[FN8] He alleges that the review contained criticisms he had never received before and did not acknowledge any of his successes as Civil Recovery Manager. As a result of the adverse review, Lambert did not receive a raise from Macy's.

Lambert then requested to see his employment file and was shocked to see that his maximum salary as a Civil Recovery Manager was now listed at $50,000, rather than a maximum of $62,000 in his previous position as Operations Manager. Defendants, however, indicate that Lambert's master employment sheet (annexed as Exhibit 7 to defendants' moving papers) confirms that the two jobs were the same grade and that Lambert's potential maximum salary was in fact increased from $50,000 as an Operations Manager to $60,000 when he became a Civil Recovery Manager.In May 2003, Lambert met, for the first time, attorney, Ken Thompson (Thompson) at a press conference that Thompson was holding outside the Macy's Herald Square store for a client who had alleged federal racial discrimination claims against Macy's. Lambert alleges that Larry Sechuk (Sechuk) and Doug Howard (Howard), two high-level Macy's executives, asked him to "spy" on this press conference and that, after the press conference, they requested that he change data in the company's security systems relevant to the federal lawsuit. Plaintiff refused to alter the database and notified both legal staff at Macy's and the New York Attorney General.

In June 2003, Lambert filed another written complaint (the June 2003 Complaint) with the Human Resources department regarding Macy's alleged discriminatory practices, including the apparent discrimination against shoplifters reflected in the arrest statistics. The complaint did not mention any racial jokes or slurs made by Macy's employees. Chris Meier (Meier), a Caucasian woman and the Vice President of Human Resources, and Tejada each interviewed plaintiff on separate occasions about the complaint. Meier also interviewed Cadmus, Coulson, and Joseph Corbett, the employee who assumed Cadmus' position when [*6]she transferred to another store. Meier told Lambert she would inform him of updates with the investigation, but purportedly did not do so.

Due to Macy's alleged refusal to address his discrimination complaints, Lambert asked to be transferred out of the Security Division into another managerial position. He was first offered an Auditor position, which required walking the floors of Macy's, but he declined because it was not an executive-level position and, as he avers, was a demotion. Several weeks later, Macy's offered him an Energy Analyst position, which Lambert avers was also a demotion.[FN9] Lambert claims he was forced to accept the transfer because Macy's continued to refuse to address his discrimination complaint and he felt like he could no longer work in the Security Division.

In October 2003, he asked Meier whether Macy's had taken any action in response to his discrimination complaint because he had not received any update from her in months. Meier purportedly replied that after his transfer, she had assumed that the matter had been resolved and had closed the investigation. According to Meier, she did not assume that the matter was resolved, but had instead concluded that he was not qualified for the director position because of his inconsistent performance. As a result of this incident and the other discriminatory conduct plaintiff allegedly experienced, plaintiff avers he felt he could no longer work at the company and was forced to resign from his employment at Macy's.

Lambert commenced this action on August 18, 2005, asserting various claims in violation of New York State Human Rights Law (NYSHRL), Executive Law §§ 290, et seq and New York City Human Rights Law (NYCHRL), Administrative Code of City of NY §§ 8-101, et seq for racial discrimination and harassment, constructive discharge, hostile work environment, retaliation, and punitive damages. Plaintiff also articulates claims against Cadmus and Coulson, individually, for aiding and abetting racial discrimination, harassment, and retaliation.

THE PARTIES' CONTENTIONS

Defendants argue that they are entitled to summary judgment dismissing the Complaint because the evidence does not support a finding that Lambert was adequately qualified to perform the Director of Operations position, that he suffered any adverse employment action, that the conduct of Macy's Caucasian superiors and employees were motivated by race, and that the rationale for decisions made by Caucasian superiors and employees at Macy's were mere pretext. They further maintain that there is no evidence or other basis for Lambert's claims for harassment, retaliation, or punitive damages. Finally, they aver that claims against Macy's parent company, Federated, should be dismissed because Lambert did not allege any wrongdoing or involvement by that entity and Federated is not vicariously liable because Lambert failed to demonstrate that it had knowledge of or acquiesced in the discriminatory conduct of its employee(s). [*7]

In a separate motion,[FN10] defendants also seek an extension of time to serve their summary judgment motion, arguing that there is good cause for their counsel's delay. Specifically, counsel James G. McCarney (McCarney) affirms that he was not familiar with the case when his partner, William R. Martin (Martin), asked him to assist with the preparation of the instant summary judgment motion.[FN11] McCarney states that his work on the motion was delayed and he was unable to meet the October 26, 2009 deadline because he had to assist in caring for his 81 year-old father, who had become critically ill.[FN12] Once McCarney finished drafting and forwarded the motion and accompanying memorandum of law to Martin for review, Martin was involved in final preparation for a two-week federal criminal jury trial. Nevertheless, Martin completed his review of the motion papers, whereupon they were served on plaintiff's counsel on November 2, 2009 €" one week after the original deadline. Defendants maintain that they did not seek to delay the proceedings, nor was plaintiff prejudiced by the brief delay. Furthermore, they indicate that trial has not yet been scheduled and is not imminent.

Plaintiff opposes defendants' summary judgment motion (and the subsequent motion for an extension) on the ground that it is procedurally defective because the summary judgment motion was served more than 60 days after the Note of Issue was filed on August 25, 2009. Plaintiff also argues that defendants' motion must be denied because, as the record demonstrates, (1) Lambert possessed the necessary qualifications and had attained excellent performance at the job, both of which were necessary to carry out the role of Director of Operations; (2) he suffered adverse employment actions because, inter alia, defendants failed to promote him to Director of Operations, prevented him from receiving the requisite payroll training, and issued him unwarranted negative performance evaluations; (3) an inference of discrimination based on race and/or color may be drawn from defendants' disparate treatment of plaintiff and Caucasian employees; and (4) defendants' purported basis for its discriminatory conduct towards Lambert is pretextual.

Moreover, plaintiff contends that triable issues of fact remain with respect to the intolerable working conditions that compelled him to resign, the pervasive discriminatory conduct that created a hostile work environment, and the subsequent backlash from his complaints about racial discrimination/harassment that forms the basis for his retaliation [*8]claim. Plaintiff additionally maintains that NYCHRL affords broader protection to employees who are subjected to unlawful discrimination and/or harassment than federal or state human rights laws, and urges the imposition of punitive damages against defendants. Finally, plaintiff argues that summary judgment dismissing Federated from the action is inappropriate because Federated and Macy's operated as part of a single integrated enterprise.

In reply, defendants argue, inter alia, that the evidence does not support plaintiff's claims for racial discrimination, constructive discharge, hostile work environment, or retaliation. They claim that they have good cause for the de minimis delay in serving their summary judgment motion. Defendants also detail the professional backgrounds of Trocchia and Coulson, who plaintiff alleges that Macy's chose to hire over him, based on race and/or color, and explain that plaintiff voluntarily transferred to positions with responsibility beyond clerical tasks and which actually carried a higher potential maximum salary. Furthermore, they assert that the record is devoid of any evidence that any ill will or lack of professionalism toward Lambert by Macy's employees was the result of race-based animus or was a pretext for their actions.

DISCUSSION

Summary judgment should only be granted where there are no triable issues of fact (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The moving party on a motion for summary judgment has the burden of demonstrating "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852 [1985]). Once the movant has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The evidence presented on summary judgment must be scrutinized in the light most favorable to the party opposing the motion (Goldstein v Monroe County, 77 AD2d 232, 236 [1980]). Accordingly, "[i]f there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied" (Celardo v Bell, 222 AD2d 547, 547 [1995]).

Timeliness of Defendant's Cross Motion for Summary Judgment

As a preliminary matter, the Court first addresses the timeliness of defendant's motion for summary judgment. Generally, in the absence of a court order or rule to the contrary, a motion for summary judgment must be made "no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown" (CPLR 3212 [a]). Rule 13 of the Uniform Civil Trial Rules of the Supreme Court, Kings County (now Rule 6 of Part C, amended Jan. 14, 2010), additionally provides that "[n]o motion for summary judgment may be made more than 60 days after filing a Note of Issue . . . except with leave of the Court on good cause shown" (see e.g. Weitzner v Elazarov, 189 Misc 2d [*9]646 [2001]). A motion is deemed "made" when the motion is served (see Perez v City of New York, 2009 NY Slip Op 51196[U], *1 [2009], citing Rivera v Glen Oaks Village Owners, Inc., 29 AD3d 560 [2006]; see also CPLR 2211). Trial courts have broad discretion to determine whether good cause exists to grant leave to file a late summary judgment motion (see Filannino v Triborough Bridge & Tunnel Auth., 34 AD3d 280, 283 [2006]; see also Goodman v Gudi, 264 AD2d 758, 758 [1999] ["a court is afforded latitude with respect to determining whether good cause exists for permitting late motions for summary judgment"]). However, unless there is a showing of good cause, courts have no discretion to entertain non-prejudicial, meritorious, post-note of issue motions (see Corchado v City of New York, 64 AD3d 429, 429 [2009], citing Brill v City of New York, 2 NY3d 648 [2004]; Glasser v Abramovitz, 37 AD3d 194 [2007]). Good cause requires "a satisfactory explanation for the untimeliness-rather than simply permitting meritorious, nonprejudicial filings, however tardy" (Brill, 2 NY3d at 652).

Defendants' mislabeled "cross motion," made against its own motion for summary judgment and belatedly seeking leave to serve a late motion for summary judgment, was filed nearly four months after it served the untimely motion. However, in considering defendants' application, the Court finds that defendants' explanation that the delay in serving the summary judgment motion was due to a family emergency, coupled with his partner's active preparation for a trial, constitutes good cause (see Stimson v E.M. Cahill Co., 8 AD3d 1004 [2004] [trial court erred in not considering late summary judgment motion where family emergencies of lawyer and his secretary requiring both of them to be out of the office on last day of deadline]; Luciano v Apple Maint. & Servs., Inc., 289 AD2d 90 [2001] [trial court erred by not excusing six day delay in filing a summary judgment motion due to illness of counsel's two children]). Moreover, the one-week delay was minimal and there was no prejudice to plaintiff (see Lambadarios v Kobren, 191 Misc 2d 86, 87 [2002], citing Miranda v Devlin, 260 AD2d 451 [1999]). Given the good cause established in defendants' papers, defendants' "cross motion" seeking leave to serve a late summary judgment motion is granted. The Court thus herein entertains defendants' untimely motion for summary judgment.

Racial Discrimination and Harassment

The standards for recovery for racial discrimination and/or harassment under the NYSHRL, Executive Law § 296, and the NYCHRL, Administrative Code §§ 8-101, et seq, are the same as the federal standards under Title VII of the Civil Rights Act of 1964 (see 42 USC § 2000-e [2], et seq.; Forrest v Jewish Guild For the Blind, 3 NY3d 295, 305 [2004]; Ferrante, 90 NY2d 623). A plaintiff alleging racial discrimination in employment has the initial burden to establish a prima facie case of discrimination (see Forrest, 3 NY3d at 305). To meet this burden, a plaintiff must show that (1) he or she is a member of a protected class; (2) he or she was qualified to hold the position; (3) he or she suffered an adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination (id., citing Ferrante v American Lung Assn., 90 NY2d 623 [*10][1997]). The burden then shifts to the employer "to rebut the presumption of discrimination by clearly setting forth, through, the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision" (Forrest, 3 NY3d at 305, citing Ferrante, 90 NY2d 623). If the evidence rebuts the presumption of discrimination, plaintiff must then prove that such reasons were "merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason" (Harrison v Chestnut Donuts, Inc., 60 AD3d 1130, 1132 [2009], citing Forrest, 3 NY3d at 305).

To succeed on a motion for summary judgment, defendants must demonstrate either plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual (see Forrest, 3 NY3d at 305). Here, the first element, that Lambert is an African American man, is not in dispute. However, defendants contest plaintiff's qualifications for Director of Operations, his allegations that he suffered an adverse employment action, and his assertion that defendants' unfair and discriminatory treatment towards him were based on race.

Defendants successfully demonstrate a prima facie showing that plaintiff did not establish all the elements of his discrimination claim by arguing that Trocchia and Coulson were better qualified than Lambert for the Director of Operations position; that there was no "materially adverse change in the terms and conditions of [plaintiff's] employment" (Forrest, 3 NY3d at 306); and that no racial animus could be inferred from defendants' conduct. They justify their favorable treatment of other candidates for the Director of Operations position by proffering documentation, including resum©s, of Trocchia's and Coulson's previous experience in, respectively, security management and retail security. Lambert, in contrast, lacked such experience as well as a college degree. They also highlight deposition testimony from Cadmus attesting to Lambert's underdeveloped managerial skills and security knowledge (see Cadmus Transcript at 176-177, 181-182). As to the absence of an adverse employment action, defendants submit, inter alia, testimonial evidence that plaintiff voluntarily accepted transfers to Civil Recovery Manager and Energy Analyst €" lateral moves carrying the same salary level as his previous positions at the time of those transfers, with room for growth and increased responsibilities. They additionally point to the lack of any factual or evidentiary basis for Lambert's claim that defendants' treatment was race-based or that defendants' rationales were pretextual.

In arguing that defendants' purported basis for its alleged discriminatory conduct was pretextual, plaintiff highlights the fact that Young had been an Operations Manager for only six months when she was promoted to Director of Operations, but plaintiff had already been an Operations Manager for nine months when Trocchia was promoted to that same position over him. However, the Court cannot find that Lambert was qualified for the job simply because he spent a longer time working as an Operations Manager. Nor does the spent time "training" Trocchia, who did not possess any prior experience in the retail industry, and [*11]Coulson, whose college degree was in an unrelated field, conclusively determine his qualifications. Defendants indicate that, unlike Lambert, both Trocchia and Coulson had several decades of experience overseeing a large number security employees in various capacities. Moreover, defendants specifically identified areas of Lambert's work performance that were sub-par and that he needed to improve. Given such deficiencies, plaintiff's allegations are insufficient to raise a triable issue of fact regarding his qualifications for the job (see Bellamy v City of New York, 14 AD3d 462, 463 [2005] [plaintiff failed to rebut defendant's evidence on summary judgment demonstrating that he was not qualified to become a police officer]; see also Kearney v County of Rockland, 373 F Supp 2d 434, 444 [SDNY 2005] [plaintiff could not overcome defendant's evidence that her work was standard at best and that her supervisors considered her generally uncooperative and difficult to communicate with]).

Plaintiff also fails to raise triable issues relating to adverse employment actions based on allegedly unwarranted negative performance reviews as well as defendants' failure to promote him to Director of Operations or provide him with training as Civil Recovery Manager. As defendants indicate, although Macy's did not send Lambert to the one-time Atlanta training to which they sent Toner (which was not available or offered on additional occasions), they provided him with on-the-job training and the materials necessary to perform his position.[FN13] Defendants also stated that they gave Lambert lower review ratings and placed him on caution/warning because, among other things, plaintiff was not sufficiently knowledgeable about Macy's systems, refused to participate in regional conference calls, and failed to update Fuller on certain matters. Similarly, given the Macy's Employment Data Form for Lambert reflecting maximum salaries for Civil Recovery Manager and Energy Analyst that were actually higher than the salary for Operations Manager (annexed as Exhibit 7 to defendants' moving papers), the Court does not find triable issues regarding whether Lambert's new positions were demotions that constituted adverse employment actions (see White v Fuji Photo Film USA, Inc., 434 F Supp 2d 144, 152-153 [SDNY 2006]; Mishk v Destefano, 5 F Supp 2d 194, 202 [SDNY 1998]). Although plaintiff changed his position, title, and duties, it cannot be said, based on the evidence, that plaintiff experienced any actionable, detrimental, and substantial change of employment (Bernheim v Litt, 79 F3d 318, 327 [2d Cir 1996, J. Jacobs, concurring]), especially since the transfers apparently increased his potential maximum salary.[FN14] [*12]

The only basis on which plaintiff arguably raises an issue of fact regarding whether he suffered an adverse employment action is defendants' alleged failure to thoroughly investigate his complaints of racial harassment and/or harassment. Even though Lambert also made allegations against Coulson and additionally identified witnesses to these alleged discriminatory events, Tejada interviewed only Cadmus in response to Lambert's July 2002 Complaint (see Cioffi v New York Community Bank, 456 F Supp 2d 202 [EDNY 2006] [where employer did not interview eyewitness during its investigation of plaintiff's discrimination complaint, investigation was deemed inadequate and incomplete]).

However, the fact that Lambert cannot adequately articulate an evidentiary basis for his allegations of racial animus is dispositive. For example, nowhere in his July 2002 Complaint does Lambert identify race as a basis for his concerns of harassment (see Exhibits 14 and 15 to plaintiff's opposition papers). Lambert calls Cadmus and Coulson "unfailingly responsive and professional" to Caucasian employees, but his deposition testimony cited in support of that allegation reflects nothing more than his frustration over difficult or failed communication efforts with his superiors. Plaintiff also does not allege that any of his decision-making supervisors uttered any racially derogatory comments, whether in relation to his transfers, being placed on caution/warning, or alleged refusals to promote him. His reliance on allegedly discriminatory shoplifting statistics is similarly misplaced, as they pertain to external, non-employee individuals and do not relate to the decisions his superiors made about him, other employees at Macy's, and/or his working conditions.

Although Lambert alleges that Bragg told racial jokes and slurs in his presence, Bragg played no role in making any of the adverse employment decisions that he complained of (see Lambert Transcript at 69-72). Lambert also did not notify anyone at Macy's about the alleged racial jokes because they were "not a work related issue" (Id. at 71; see also Bass v NYNEX, 2004 WL 1941088, *7 [2004] [no evidence offered to raise material issues of fact where, inter alia, plaintiff did not report the remarks of alleged racial discrimination]). Moreover, Lambert admits that the incidents always took place behind closed doors, without any witnesses, and Lambert admitted in deposition that he could not produce the notes he purportedly took regarding the racial jokes (see Lambert Transcript at 47-55).

The Court finds that plaintiff has not rebutted defendants' showing of legitimate and lawful employment decisions with evidence of pretext. No triable issues of fact remain with regard to whether defendants were motivated by any racial animus (see Morse v Cowtan & Tout, Inc., 41 AD3d 563, 563-564 [2007]). Thus, this branch of defendants' motion for summary judgment seeking dismissal of the racial discrimination and harassment claim under the NYSHRL should be granted. The Court similarly must grant summary judgment dismissing plaintiff's corresponding claim under the NYCHRL, as it cannot be said that Lambert has established "by a preponderance of the evidence that [he] has been treated less well than other employees" due to unlawful discrimination (Williams v New York Hous. Auth., 61 AD3d 62, 78 [2009]; see also Administrative Code § 8-107 [1] [a]).

Hostile Work Environment[*13]

(a)

A hostile work environment claim 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 and create an abusive working environment" (Forrest, 3 NY3d 295, 310 [2004]), quoting Harris v Forklift Sys., Inc., 510 US 17, 21 [1993] [citations and internal quotation marks omitted]). In determining whether an environment is hostile, the Court must consider all the circumstances, including the frequency of discriminating conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with the employee's work performance (see Forrest, 3 NY3d at 310-311 [internal citations and quotation marks omitted]). Such conduct may be subjectively perceived as abusive by the plaintiff and have created an objectively hostile or abusive environment that a reasonable person would find hostile or intimidating (Id. at 311; see also Hughes v United Parcel Serv., Inc., 4 Misc 3d 1023[A], *6 [2004], citing Oncale v. Sundowner Offshore Servs., Inc., 523 US 75 [1998]). Moreover, for discriminatory acts to be actionable against an employer, the employer must have "encourag[ed], condon[ed], or approv[ed]" such conduct (see Forrest, 3 NY3d at 311; see also Curto v Zittel's Dairy Farm, 26 AD3d 808, 809 [2006] [where plaintiff did not meet initial burden by submitting admissible proof that employer was aware of harassment by plaintiff's coworker, or that it acquiesced in or condoned coworker's conduct]).

As discussed in the previous section, plaintiff fails to offer adequate proof of circumstances that give rise to an inference of discriminatory intent. Although he relies on the alleged improper racial jokes and slurs uttered by Bragg, who did not make any decisions relating to plaintiff's employment, the evidence is insufficient to show how they altered his working conditions (see e.g., Stepheny v Brooklyn Hebrew Sch. for Special Children, 356 F Supp 2d 248, 264 [EDNY 2005] [five racially offensive comments of the term "white bitch," over the course of five months insufficient as a matter of law to establish hostile environment claim]; Pagan v New York State Div. of Parole, 2003 WL 22723013, at *6 [SDNY 2003] [four instances of racially derogatory remarks by supervisor in the span of several months did not amount to a hostile work environment]; Stembridge v City of New York, 88 F Supp 2d 276, 286 [SDNY 2000] [seven incidents over three years, including two instances of racial epithets, such as "uppity nigger," uttered by supervisors toward plaintiff, evince only racial hostility, but do not establish a hostile work environment]). Even if plaintiff had presented evidence demonstrating the use of racial jokes and slurs in the workplace, however, it was without the knowledge or acquiescence of his employer, who did not encourage, condone, or approve of Bragg's alleged racial remarks. Indeed, plaintiff admits that he did not report the alleged racially discriminating conduct to anyone (see Lambert Transcript at 47-55).

Furthermore, nothing in the record indicates any discriminatory intent which can be inferred from his supervisors' actions or that plaintiff experienced discrimination due to race or color, much less any substantial details of frequency, severity, physical or psychological effect, or impact on Lambert's performance at work. His conclusory allegations that [*14]defendants, because of his race, repeatedly gave positions to other employees who were Caucasian instead of to him, and that defendants furthermore failed to thoroughly investigate his complaints, do not raise any triable issues. When asked to identify specific instances of racially discriminatory remarks or treatment, Lambert made only speculative statements during his deposition such as, "I don't know of any direct [discriminatory] comments. That does not mean that [Sechuk] never made direct [discriminatory] comments" and "[Macy's employees] never said [negative discriminatory] comments, but that doesn't mean to stay they didn't imply it" (Id. at 50-55). Similarly, when he filed his discrimination complaints with the Human Resources department, he did not document any specific negative remarks by any employees at Macy's relating to his race (Id. at 33-34). There is no doubt that the allegedly discriminatory conduct complained of was not sufficiently severe or pervasive so as to alter the conditions of plaintiff's employment (see O'Dell v Trans World Entertainment Corp., 153 F Supp 2d 378, 386 [2001]).

In the absence of proof that Lambert reported any of the alleged racial remarks to his employer or proof from which discriminatory intent may otherwise be inferred, the Court finds that defendants are entitled to summary judgment on the hostile work environment claim (see Lee v City of Syracuse, 603 F Supp 2d 417, 438-439 [NDNY 2009] [summary judgment granted for employer on hostile work environment claim where plaintiff never reported any offensive pornography in the workplace]; Smith v Niagara Frontier Transp. Auth., 2007 WL 1119797, *6-7 [WDNY 2009] [summary judgment granted for employer on hostile work environment claim where plaintiffs' raised complaints to the employer, but not about the alleged racially nor sexually harassing conduct]). Accordingly, the branch of defendants' motion for summary judgment seeking to dismiss the hostile work environment claim under the NYSHRL should be granted.

(b)

With respect to NYCHRL, courts have traditionally stated that there is no difference between "the rights granted . . . or the manner and amount of proof required to prevail" under the NYSHRL and NYCHRL (Mohamed v Marriott Int'l, Inc., 905 F Supp 141, 157 [SDNY 1995], citing Buckout v New York City Comm'n on Human Rights, 200 AD2d 173 [1994]; see also Rios v Metropolitan Transp. Auth., 6 Misc 3d 1006[A], *3 [2004]). However, the Restoration Act,[FN15] which amended the city human rights law in a variety of ways, explicitly stated an intent for the NYCHRL to be afforded broader and more liberal construction than its state and federal counterparts, as reflected in the text and legislative history (see Administrative Code § 8-130; Williams, 61 AD3d at 73-74).[FN16] Williams, cited by plaintiff, [*15]expands the standard of impermissible conduct actionable under hostile work environment claims.[FN17] Specifically, an analysis under the NYCHRL follows a standard imposing liability for discriminatory conduct that exceeds "what a reasonable victim of discrimination would consider petty slights and trivial inconveniences,'" rather than "an overly restrictive severe or pervasive' bar" (Id. at 79-80). The court in Williams clearly held that, unlike the state and federal "severe or pervasive" standard, and following the legislature's specific intent to protect employees from a wider spectrum of unlawful conduct, the standard under the NYCHRL would strive to eliminate the role of any significant discrimination in the workplace.

Under the city human rights standard for hostile work environment claims, reasonable minds could differ as to whether Bragg's alleged racial jokes and slurs were "no more than petty slights and trivial inconveniences" in this "borderline" situation (Id. at 80; see also Hwang v DQ Mktg. & Pub. Relations Group, 2009 WL 3696604 [2009] [granting summary judgment dismissing plaintiff's hostile work environment claim under the NYSHRL, but denying summary judgment for the same claim under the NYCHRL]). However, plaintiff still fails to raise triable issues as to whether Macy's knew about, encouraged, condoned, or approved the alleged unlawful conduct, or whether racial discrimination can be inferred from defendants' actions. Accordingly, the branch of defendants' summary judgment motion seeking to dismiss plaintiff's hostile work environment claim under the NYCHRL must also be granted.

Constructive Discharge

With a constructive discharge claim, an employee essentially asserts that the employer, rather than directly discharging an individual, has intentionally created an intolerable work atmosphere that forces that employee to quit involuntarily (see Whidbee v Garzarelli Food Specialities, Inc., 223 F3d 62, 73 [2d Cir 2000]). Working conditions are intolerable if they are so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign (id.). To make a prima facie case for constructive discharge, a plaintiff must show that: (1) the employer deliberately made the employee's working conditions so intolerable that (2) he or she was forced into involuntary resignation (Nelson, 41 AD3d at 447, citing Petrosino v Bell Atl., 385 F3d 210, 229 [2d Cir 2004]; Chertkova v Connecticut Gen. Life Ins. Co., 92 F3d 81 [2d Cir 1996]). An employer engages in the type of "deliberate" conduct necessary to support a constructive discharge claim where the plaintiff can show that such conduct was not merely negligent (see Petrosino, 385 F3d at [*16]229-230). The analysis entails consideration of the cumulative effect of the defendants' conduct and a determination of whether, based on the totality of the circumstances, the defendant created working conditions that were "so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign" (see Chertkova, 92 F3d at 90; Stetson v NYNEX Serv. Co., 995 F2d 355, 361 [2d Cir 1993]).

In the instant action, plaintiff fails to raise issues of fact that his resignation was anything other than voluntary. Lambert does not allege that he actually experienced a reduction in salary or benefits or that his working conditions had become difficult or onerous (see e.g. Ioele v Alden Press, Inc., 145 AD2d 29, 36 [1989]). Moreover, "mere dissatisfaction with work assignments, unfair criticism, or working conditions that can be categorized as unpleasant, do not constitute a constructive discharge" (Pugni v Reader's Digest Ass'n, Inc., 2007 WL 1087183, *25 [SDNY 2007]; O'Dell, 153 F Supp 2d at 393). Although Lambert was unhappy that he did not receive the promotion to Director of Operations, "[a] discriminatory denial of a promotion, without more, does not amount to a constructive discharge. Rather, the resulting working conditions must be so intolerable that a reasonable person would have felt compelled to resign" (Alleyne v Four Seasons Hotel-New York, 2001 WL 135770, *14 [SDNY 2001] [internal citations and quotation marks omitted]). "This is not a case where the plaintiff has established that the denial of that promotion dashed her reasonable expectations of career advancement,' or that management personnel indicated that she should resign or impliedly suggested that her employment would be terminated" (id.). On the contrary, rather than terminate plaintiff's employment, defendants kept him on caution/warning status for six months and allowed him to improve his work performance. Cadmus also testified that she told Lambert there were certain areas of knowledge and skills that he needed to develop first in order to ascend to Director of Operations (see Cadmus Transcript at 176-178), implying that he still had the opportunity to grow and that defendants were not trying to compel him to leave employment at Macy's. Additionally, plaintiff presents no evidence demonstrating that defendants' conduct was intentionally geared towards compelling his resignation.

Plaintiff cites Cioffi (456 F Supp 2d 202), in which the court confirmed the jury's determination that the plaintiff-employee was constructively discharged, as analogous to the instant action. However, Cioffi is inapposite because the plaintiff therein presented evidence that she was subjected to more extreme circumstances immediately after she complained of sexual harassment.[FN18] Accordingly, the Court concludes that plaintiff raised no triable issues regarding whether he was constructively discharged from his employment at Macy's, and defendants' motion for summary judgment should be granted with respect to that claim.

[*17]RetaliationIn order to make a prima facie showing of retaliation, plaintiff must show: (1) participation in a protected activity; (2) the employer was aware that plaintiff participated in such activity; (3) plaintiff suffered an adverse employment action based upon the activity; and (4) a causal connection between the protected activity and the adverse employment action (see Simeone v County of Suffolk, 36 AD3d 890, 891 [2007]). Activity is protected when it constitutes "opposing or complaining about unlawful discrimination" (Brook v Overseas Media, Inc., 69 AD3d 444, 444 [2010], quoting Forrest, 3 NY3d at 312-313).

Plaintiff alleges in the Complaint that, because he opposed defendants' discriminatory practices, complained about defendants' discriminatory practices, and/or refused to alter information in Macy's security database in relation to another lawsuit pending in federal court, he was subjected to defendants' retaliatory actions, including improperly prolonging his warning period, failing to conduct a thorough investigation of his racial discrimination complaints in good faith, and constructively discharging him. Defendants contend that their actions cannot be construed as retaliatory because the company did not learn of Lambert's alleged misappropriation of security systems data until after he had resigned.[FN19] Moreover, they aver that plaintiff voluntarily transferred to the engineering department as an Energy Analyst on the same day he filed the June 2003 Complaint with the Human Resources department, and that the transfer thus could not have been made in response to the June 2003 Complaint.

Although plaintiff satisfies the first and second elements (protected activity and the employer's knowledge of such), plaintiff fails to establish a retaliation claim under the NYSHRL. Even if plaintiff could successfully demonstrate an adverse employment action under state law standards, which he cannot, as discussed above, the Court nevertheless finds no evidence that Lambert was transferred, kept on a lengthier caution/warning period, denied a thorough investigation, or constructively discharged as a result of his complaints. Courts have found that a causal connection may be established 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 [claimant] by the defendant" (Gordon v New York City Bd. of Educ., 232 F3d 111, 117 [2d Cir 2000]; see also Pace Univ. v New York City Commn. on Human Rights, 85 NY2d 125, 129 [1995]). Plaintiff has submitted neither circumstantial proof nor evidence of retaliatory animus herein. Accordingly, the branch of defendants' summary judgment motion seeking [*18]dismissal of the retaliation claim under the NYSHRL should be granted. Although the NYCHRL uses a broader construction for what constitutes an actionable adverse employment action,[FN20] plaintiff's retaliation claim under this more liberal statute must also be dismissed because Lambert failed to raise triable issues regarding whether a causal connection existed between the protected activity and the adverse employment action (Simeone, 36 AD3d 890).

Dismissal of Defendant Federated

Defendants also move to dismiss defendant Federated, Macy's parent company, from the instant action. According to defendants, Federated was not involved in the matters that are the subject of the action, and Lambert cannot establish Federated's vicarious liability for Macy's alleged discriminatory conduct because he has not demonstrated that Federated approved of, acquiesced in, or had knowledge of any wrongful act by any other defendant.

Plaintiff argues that Federated may not be dismissed from the action because, although Federated is a separate company, it should be considered as a single company together with Macy's given that they operate as a "single integrated enterprise." In support of his contention, Lambert cites Lihli Fashions Corp. v NLRB (80 F3d 743 [2d Cir 1996]) and acknowledges that in their analysis, courts will look to the "interrelation of operations, common management, centralized control of labor relations and common ownership" (Id. at 747) to determine whether two entities operate as a "single integrated enterprise" (see also Nunez v Mariners Temple Baptist Church, 25 Misc 3d 1212[A], *1 [2009]). Although there may be some sort of interrelation between Macy's and Federated based on their ownership structure, website, company names, and performance reviews issued by the parent company, as plaintiff alleges, the evidence is insufficient to raise a triable issue regarding whether Federated was Lambert's joint employer under the four-factor test articulated in Lihli and similar precedent. Specifically, plaintiff's proof provides no detail with respect to how Macy's and Federated allegedly shared operations, were run by overlapping directors or officers, or manifested common financial control (cf. Matter of Argyle Realty Assoc. v New York State Div. of Human Rights, 65 AD3d 273, 278-282 [2009] [where three entities shared, for example, managers, chief operating officers, presidents, and shareholders, and the payroll checks of one company listed the name of one of the other companies]). Plaintiff's unsubstantiated allegations that Federated exercised control over Macy's because its Code of Good Business Conduct applied to all Macy's employees is not enough to defeat summary judgment. Accordingly, the branch of defendants' motion for summary judgment seeking dismissal of Federated from the action should be granted.

Punitive Damages Claim

Plaintiff asserts that punitive damages are warranted, pursuant to Administrative Code § 805 (a), to compensate him for defendants' alleged discriminatory treatment. However, the [*19]Court determines that plaintiff lacks any evidentiary basis showing that defendants' engaged in "egregious misconduct" rising to the level of "willful, wanton or reckless disregard" for plaintiff's rights (see Jordan v Bates Adv. Holdings, Inc., 11 Misc 3d 764, 777 [2006]; see also Doe v Merck & Co., 1 Misc 3d 911[A], *2 [2002]).[FN21] With respect to Macy's anti-discrimination policies, the Court notes that Lambert signed an annual anti-discrimination form every year attesting that he had no knowledge of any discrimination taking place at Macy's. The Court concludes that plaintiff has not presented sufficient evidence to show that defendants did not engage in a good-faith enforcement of anti-discrimination policies.

CONCLUSION

Accordingly, upon granting defendants' second motion seeking leave to serve a late summary judgment motion, the Court also grants defendants' motion for summary judgment dismissing the Complaint and all other claims under the NYSHRL and NYCHRL. The Court has considered the parties' remaining contentions and finds them without merit.

The foregoing constitutes the decision, order, and judgment of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: Federated has since changed its corporate name to Macy's, Inc.

Footnote 2: According to plaintiff, William Bragg (Bragg), the Director of Training at Macy's, used the racial slur "nigger" in plaintiff's presence to describe an African American person.

Footnote 3: In her deposition testimony, Cadmus also states that "[Lambert] was not qualified for the position. He was new to Macy's, new to security. He lacked the leadership skills in order to do the job" (Transcript of Maryanne Cadmus, annexed as Exhibit B to plaintiff's opposition papers, at 173; see also Id. at 176-177).

Footnote 4: Trocchia did not have any experience in the retail industry at all and, according to Cadmus' deposition testimony, had problems communicating with regional vice presidents, was unprepared for meetings, and did not have sufficient knowledge for his position. Nevertheless, Cadmus described Trocchia's work as "great" because "there is [sic] things he grasped quickly, he was creating partnerships, he had great initiative, and he was eager" (Cadmus Transcript at 412).

Footnote 5: For example, the previous Civil Recovery Manager, Brian Toner, a Caucasian male, had been sent to Atlanta for training relating to Macy's computer systems. Plaintiff alleges that his request for the same training was denied.

Footnote 6: In his deposition testimony, however, plaintiff stated that he did not raise the issue of the allegedly discriminatory patterns in arrests made at Macy's to anyone there, not even "Mitch on the legal side" (Transcript of Anthony Lambert, annexed to defendants' cross motion, at 93-94, 122-124).

Footnote 7: Macy's policy allows for a poorly performing employee to be terminated if significant improvement is not made within 90 days. Plaintiff avers that warning periods for Macy's employees were generally limited to 90 days and that no Caucasian employee had ever been placed on warning for such a long period (six months).

Footnote 8: For his previous review in 2001, he received a categorical "meets expectations" grade, and alleges that defendants improperly evaluated him only on his performance as Civil Recovery Manager, and did not take into account the time he had worked as Operations Manager. In 2002, he alleges that he initially received a grade on the high end of the "meets expectations" scale from Coulson, his direct supervisor, but Cadmus allegedly reduced his numerical rating to "below expectations," which made him ineligible for a raise in compensation. Lambert further alleges that Cadmus made additional changes to his ratings for 2003, which defendants claim is impossible because Lambert did not receive a performance review for 2003.

Footnote 9: He alleges that the Energy Analyst position did not include any managerial authority over direct reports and carried a lower maximum salary of $48,000.

Footnote 10: Defendants erroneously label this motion as a "cross-motion" to their own motion for summary judgment, but their application should properly be designated a "motion" (see generally Fuller v Westchester County Health Care Corp., 32 AD3d 896 [2006]; Gaines v Shell-Mar Foods, Inc., 21 AD3d 986 [2005]).

Footnote 11: Martin had previously handled the case at his former law firm.

Footnote 12: McCarney then arranged to serve a notice of motion on October 27, with a letter to plaintiff's counsel proposing that they stipulate to a briefing schedule.

Footnote 13: For example, Coulson testified that she gave Lambert the training manual on civil recovery, but plaintiff said he didn't have time to read it (see Transcript of Cindy Coulson, annexed to defendants' moving papers, at 158).

Footnote 14: Although the Energy Analyst position did not allow him to directly oversee any other employees, that fact does not automatically qualify the transfer as a demotion.

Footnote 15: See 2005 NY City Legis. Ann. at 528-535.

Footnote 16: Administrative Code § 8-130 provides, in pertinent part:

The provisions of this [chapter] title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed.

Footnote 17: As discussed further below, Williams also expands the standard for analyzing retaliation claims under the NYCHRL.

Footnote 18: Among other things, the plaintiff in Cioffi was interrogated, disciplined, stripped of important duties immediately after she complained of sexual harassment, and required to work on a project headed by her alleged harasser.

Footnote 19: Defendants improperly categorize plaintiff's alleged misappropriation of security data as the action that plaintiff seeks to protect, but in fact the activities properly at issue are plaintiff's complaints to the Human Resources department and his refusal to cooperate with alleged requests to alter data in the Macy's security system. It is therefore irrelevant that Macy's did not learn of Lambert's alleged misappropriation of security data until after he had resigned.

Footnote 20: In Williams, the court stated that retaliation claims under the NYCHRL undergo an analysis based on whether the alleged retaliatory or discriminatory acts are "reasonably likely to deter a person from engaging in protected activity" (Williams, 61 AD3d at 70-71).

Footnote 21: Contrary to plaintiff's suggestion, Cioffi (456 F Supp 2d 202) does not stand for the proposition that defendants' failure to investigate plaintiff's claim automatically gives rise to punitive damages.