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CITRONER v. PROGRESSIVE CAS. INS. CO.
June 5, 2002
GEORGE CITRONER, PLAINTIFF,
PROGRESSIVE CASUALTY INSURANCE CO., DEFENDANT.
The opinion of the court was delivered by: Gershon, District Judge.
George Citroner brings this action against Progressive
Casualty Insurance Co. ("Progressive") alleging harassment and
discriminatory termination on the basis of race, ethnicity, and
national origin, and retaliatory termination under Title VII of
the Civil Rights Act of 1964 ("Title VII"), as amended,
42 U.S.C. § 2000(e) et seq.; 42 U.S.C. § 1981; the New York
State Human Rights Law ("NYSHRL"), New York State Executive Law
§§ 290 et seq.; and the Administrative Code of the City of New
York ("NYCHRL") § 8-107. Defendant moves for summary judgment
pursuant to Fed.R.Civ.P. 56 on all of plaintiffs claims.
Unless otherwise indicated, the following facts are
Defendant is a casualty insurer specializing in personal
automobile insurance and is headquartered in Ohio. Plaintiff
identifies his race as Hispanic-American; his national origin as
Argentinian and Puerto Rican; his ethnicity as white, black, and
Asian; and his skin color as tan. Richard Dowd, the office
manager for the Brooklyn office of Progressive, interviewed
plaintiff, and plaintiff was hired for the position of claims
adjustor/claims representative commencing on September 15, 1997.
He was assigned to a team leader, Chandal Brown, who in turn
reported to Dowd. Plaintiff was assigned to the Day 1 Unit,
where his primary responsibility was speaking to insured
individuals after an automobile accident. After a period of
time, plaintiff also performed damage appraisal work, which
required him to visit accident sites, auto-body shops, and the
homes of insureds. Plaintiff attended a mandatory Progressive
training class in Tampa, Florida from
September 29, 1997 to October 10, 1997. Plaintiff attended a
second training class in Ohio from November 3, 1997 to November
21, 1997. Upon his return, a new team leader, John Noto, was
assigned to plaintiffs team on November 24, 1997. As team
leader, Noto had no authority to hire or fire employees and was
required to review all matters of performance management with
his manager. Schmitt Aff. ¶ 9.*fn1
1. Alleged harassment by Noto and Dowd of plaintiff and
plaintiffs alleged harassment of a co-employee:
According to the Complaint and plaintiffs EEOC Charge, on
December 11, 1997, Noto began to engage in racial harassment
after overhearing plaintiff speaking Spanish with a client.
According to plaintiff, Noto pulled him aside and told him he
must act more "white." Plaintiff also claims that Noto told him
he had to "lose that cocky Spanish attitude." Complaint ¶ 9,
Feliu Ex. 1; EEOC Charge ¶¶ 7-8, Feliu Ex. 2. According to the
EEOC Charge and Complaint, "[f]rom that point on, Mr. Noto
harassed plaintiff due to plaintiffs Hispanic national origin,
race, and ethnicity" by giving plaintiff more work in an effort
to force plaintiff from his job, yelling at plaintiff, and
calling plaintiff "Speedy Gonzalez." Complaint ¶ 10; EEOC Charge
However, at his deposition, plaintiff testified that "it was
after December 11th that his harassment became much more
aggressive, much more vocal. It involved other employees. Before
that it was just between him and myself the comments would be
made, although they would be in front of other people. He
wouldn't include anyone else." Citroner Depo. 111-12. At one
point in his deposition testimony, plaintiff claims that
December 11th was the first and only time Noto told him to act
more white and loose the cocky Spanish attitude, but at another
point he claims that Noto told him to act more white and remove
an Argentine flag from his desk on other occasions. Plaintiff
testified that, prior to December 11, 1997, Noto "would just
make Spanish noises. Say, `Hey, Speedy Gonzalez,' very low
level, very random." Id. at 109. Plaintiff claims that one
day, Noto left a Speedy Gonzalez doll, and, on another occasion,
Noto "passed gas in my face and made a comment about beans and
Hispanics." Id. at 74, 79-80. Plaintiff complained to Noto
about his behavior, but to no avail.
Further, plaintiff testified at his deposition that Noto's
harassment predated his appointment as plaintiffs team leader.
Noto was plaintiffs on-the-job training representative for one
day during plaintiffs first two weeks. Plaintiff described this
position as being his equal. Plaintiff testified that on that
day, Noto mocked the way plaintiff spoke Spanish and made
negative comments about Hispanics. Plaintiff claims he asked
Noto to stop. Id. at 25.
On Friday, December 19, 1997, there was an altercation between
plaintiff and a co-employee, Tina Albanese in the parking
garage. On Monday, December 22, 1997, an employee, Phyllis
Arthur, approached Robert Haibi, a supervisor who is Hispanic
and Spanish-speaking, and complained about the December 19, 1997
incident, saying she was concerned for the safety of the female
employees. Haibi telephoned Dowd, who was out of the office.
Over the telephone, Dowd instructed Haibi to
interview Albanese. At the interview, Albanese said that
plaintiff confronted her in the parking lot after work and
called her names such as "fucking cunt," "bitch," and "fucking
asshole." Albanese said she was afraid plaintiff would assault
Haibi then interviewed three employees who witnessed the
altercation. Dominick DeCicco, who was in the passenger seat of
the automobile with plaintiff when the altercation took place,
confirmed Albanese's claims orally to Haibi, and in a signed
statement dated December 22, 1997, in which he states that
plaintiff approached Albanese in the garage and "began screaming
at Tina Albanese and used the following vulgar words: bitch,
fuck, mother-fucker and cunt." Mike Lewis and Kevin Gayle, who
witnessed the altercation as they were passing through the
parking lot, also stated orally and in written statements dated
December 22, 2002, that plaintiff used vulgar language with
Albanese. After calling Dowd again, Haibi confronted plaintiff,
who admitted that he "blew up" at Albanese and cursed at her,
but claimed that it was none of defendant's business because the
incident occurred after hours and off company property. Haibi
told plaintiff not to return to work until the matter had been
resolved. Haibi Aff. ¶¶ 4-9. In an e-mail dated December 23,
1997, Haibi summarized the statements he had obtained from
Albanese, plaintiff, DeCicco, Lewis, and Gayle that plaintiff
had confronted Albanese in the garage and used profanities.
At about this time, plaintiff telephoned Progressive's Human
Resources Department in Ohio, and was transferred to Tom
Schmitt, the Human Resources Director. According to Schmitt,
this was the first time he ever had contact with plaintiff.
Plaintiff testified that Tom Schmitt "was the personnel
representative that I made my initial complaint about the
actions of John Noto and Richard Dowd to during the time that I
resigned my position." Citroner Depo. 53. Plaintiff spoke with
Schmitt on or after December 22, 1997 about three or four times.
Plaintiff acknowledges that he spoke to Schmitt about his
"situation" and a problem with back pay, but did not mention
discrimination. Citroner Depo. 123. According to Schmitt,
plaintiff complained that Noto berated and demeaned team members
by saying such things as monkeys could do their jobs and denying
them time for lunch. Schmitt Aff. ¶¶ 5, 10. As a result of his
complaints, Schmitt resolved the back pay issue and commenced an
investigation. Plaintiff attempted to resign to Schmitt, but,
according to plaintiff, Schmitt would not accept his resignation
until the investigation was complete. Citroner Depo. 90-91,
At Schmitt's direction, an investigation was conducted into
the circumstances relating to plaintiffs altercation with
Albanese and plaintiffs allegations of an abusive work
environment. Witness statements were taken from Haibi, Noto,
Albanese, Gerard Louissant, Michael Lewis, Kevin Gayle, and
Dominick DeCicco. According to Albanese, the following occurred:
On December 19, Noto had spoken to plaintiff about using foul
language. After the meeting, plaintiff said, "if I lose my job
I'm going to kill these mother fuckers" and began asking other
people if they had spoken to Noto. That night, as Albanese was
leaving work and walking towards her car, plaintiff exited a
vehicle of a co-employee, DeCicco, and approached Albanese in
her automobile. Albanese lowered her window, and plaintiff said
that he "heard that you hope that I get fired." Albanese exited
her automobile and went over to DeCicco's automobile and said
that she disliked plaintiff but that they could work together.
Then, "in a fit of rage [plaintiff] came up to me. I thought he
was going to strike me, but
he just began screaming at me and cursing at me, saying `you
fucking whore bitch, why don't you leave me alone, you cunt
bitch.'" Albanese said she was ignoring plaintiff, and he began
to shout more obscenities. She then walked away because she
feared that plaintiff would strike her.
As part of the investigation, Dowd interviewed plaintiff on
December 30, 1997. At his deposition, plaintiff testified that
he does not remember the conversation, but it was recorded.
Plaintiff reviewed the transcript and admitted that it is "an
accurate record of what was said during that conversation."
Citroner Depo. 94, 130-31, 148. While plaintiff testified that
his memory of the events at the time of his deposition was not
appreciably worse than his memory when he made the December 30,
1997 statements, he admits that "whatever has been transcribed
from the recorded conversation I had with Mr. Dowd is correct to
the best of my knowledge that I had then, at that time, which I
imagine is better than the memory or knowledge that I have of
the situation now." Id. 151, 61. He testified at his
deposition that everything he told Dowd at the December 30, 1997
interview was true, except for omitting any mention of "any of
the racism, the discrimination, the problems that I had with
[Mr. Dowd] or Mr. Noto" because he feared losing his job. Id.
In the recorded statement, plaintiff first discussed the
December 19, 1997 incident. He stated that, as he and DeCicco
were sitting in the car, Albanese came up to DeCicco's side of
the car and started to have a conversation with him. He
mentioned that he heard she said she hoped plaintiff got fired.
After Albanese denied this, plaintiff exited the automobile.
Eventually, Albanese "exploded" and admitted saying she hoped
plaintiff got fired. Plaintiff admitted that they "were not
speaking quietly." Plaintiff denied cursing at her, and denies
using any vulgarities except he stated that he "might have
called her a cow." Plaintiff stated that he called Albanese a
cow because he wanted her to leave. Plaintiff said that he did
not remember anything else because he was heavily medicated for
asthma at the time of the incident. When confronted with
statements by other employees that plaintiff had used
vulgarities and cursed, plaintiff stated that he did not know
why they would think that. He did not recall who was around, and
he did not recall having a conversation with DeCicco after the
event. Plaintiffs Statement 1-10, 33-34, Feliu Ex. 3.
In response to Dowd's question about why plaintiff had asked
to resign, plaintiff stated that Noto:
had been laying really heavy against me for I don't
know what reason. I was called Shmo boy on a regular
basis, stupid, constantly repeating to me that a
monkey could do my job.
The man insulted me for the quality of the work
that I was doing but he wouldn't sit next to me to
show me the way that he wanted it done. He would
just constantly berate me.
I just couldn't come into work every day and
just be told that I'm an idiot, and have no
assistance in trying to do my job better.
. . . . He puts this doofus jar in the cube,
everybody's got to pay a dollar to the doofus jar
when they make a mistake because they're a doofus.
Id. at 10-11. Plaintiffs deposition testimony is inconsistent
with his recorded statement on this point. While plaintiff
stated to Dowd that the "doofus jar" was for all employees in
his recorded statement, he testified at his deposition that
"[a]s I recall right now, after the incident of a bottle being
set up with the word doofus written on it being meant
specifically for me, for me to put a dollar in every time I made
a mistake." Citroner Depo. 92.
In his recorded statement, plaintiff also stated that Noto saw
plaintiff having an asthma attack and berated him for not moving
fast enough sometime after December 11. Albanese also was
screaming at plaintiff at that point. Plaintiff also complained
that Noto criticized his work and "insulted me for the quality
of the work I was doing." Noto also berated plaintiff for taking
recorded statements in Spanish. He said, "I'd be doing recorded
statement in Spanish, then he would start making funny ...