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CITRONER v. PROGRESSIVE CAS. INS. CO.

June 5, 2002

GEORGE CITRONER, PLAINTIFF,
V.
PROGRESSIVE CASUALTY INSURANCE CO., DEFENDANT.



The opinion of the court was delivered by: Gershon, District Judge.

      OPINION AND ORDER

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.

FACTS

Unless otherwise indicated, the following facts are undisputed.

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 ¶ 9.

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 her.

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, 121-24.

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. at 150.*fn2

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 ...


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