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LUMHOO v. HOME DEOPOT USA
September 26, 2002
KENNETH C. LUMHOO AND JEMEL ANDERSON, PLAINTIFFS
THE HOME DEPOT USA, INC., JAMES DUFFY, JOSE CAMACHO, JOSEPH GERVASI AND JOHN CLOUGHER, DEFENDANT.
The opinion of the court was delivered by: Michael L. Orenstein, United States Magistrate Judge
Plaintiffs Kenneth C. Lumhoo ("Lumhoo") and Jemel Anderson ("Anderson"
(collectively "Plaintiffs") bring this employment discrimination action
against defendants The Home Depot USA, Inc. ("Home Depot"). James Duffy
("Duffy") Jose Camacho ("Camacho")*fn1 Joseph Gervasi ("Gervasi") and
John Clougher ("Clougher") alleging discrimination, retaliation.
disparate treatment, a hostile work environment and the deprivation of
overtime compensation on the basis of Plaintiffs' race in violation of
Title VII of the Civil Rights Act of 1964 ("Title VII") as amended,
42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981 and § 1981(a);
the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq.
(McKinney 2001) ("NYSHRL") and New York common law. Defendants move the
Court' for an order granting summary judgment pursuant to Fed.R.Civ.P. 56
and dismissing the amended complaint (hereinafter the "complaint"). For
the reasons set forth below, the Court grants Defendants' motion in part
and denies Defendants' motion in part.
In addition. in light of this Court's decision, the Court denies
Defendants' motion to strike portions of Plaintiffs' Affidavits and Rule
56.1 Statements in Opposition to Defendants' Motion for Summary Judgment
The following facts are presented in the light most favorable to the
Plaintiffs. See Brennan v. Metropolitan Opera Ass'n Inc., 192 F.3d 310,
316 (2d Cir. 1999); Ertman v. United States, 165 F.3d 04, 206 (2d Cir.
On April 15, 1999, Home Depot hired Anderson, an African-American
male, to be an order puller*fn2 in its Valley Stream Store. (Pl.
Anderson's 56.1 Statement at ¶ 1).*fn3 Home Depot hired Lumhoo, an
African-American and Asian Pacific Islander
male, to be a truck driver*fn4
for its Brooklyn store on March 29, 1999. (Pl. Lumhoo's 56.1 Statement at
¶ 1). Thereafter, on July 5, 1999, Lumhoo, was transferred from Home
Depot's store in Brooklyn to the Valley Stream store where he continued
to work as a truck driver. (Pl. Lumhoo's 56.1 Statement at ¶ 2).
On September 19, 1999, Plaintiffs were transporting material to and
from a delivery truck at the Valley Stream store. (Compl. ¶ 41).
During the course of the various transfers, material and equipment,
including a certain forklift, blocked the lumber aisle in the Valley
Stream store. (Compl. ¶ 41; Pl. Anderson's 56.1 Statement at ¶
27; Pl. Lumhoo's 56.1 Statement at ¶ 34). Anderson requested
defendant James Duffy.*fn5 Department Head of the Lumber Division of the
Valley Stream store, to move the forklift and material that was blocking
the aisle so that Plaintiffs could continue loading their truck. (Compl.
¶¶ 9, 42; Pl. Anderson's 56.1 Statement at ¶ 27; Pl. Lumhoo's 56.1
Statement at ¶ 34). Duffy ignored the request and walked away.
(Compl. ¶ 42; Pl. Anderson's 56.1 Statement at ¶ 27; Pl. Lumhoo's
56.1 Statement at ¶ 34). Defendant John Clougher,*fn6 an Assistant
Manager of the Valley Stream store, got on the forklift and began to move
it out of the way. (Compl. ¶¶ 12, 42; Pl. Anderson's 56.1 Statement at
¶ 27; Pl. Lumhoo's 56.1 Statement at ¶ 34), but Lumhoo told
Clougher to forget it and that Plaintiffs would use the lumber aisle to
load the trucks, (Morway Aff., Exh. M).
As Anderson attempted to move the material through the lumber aisle
with a forklift, Duffy ran down the store aisle and yelled at Plaintiffs
for allegedly damaging his lumber. (Compl. ¶ 43; Pl. Anderson's 56.1
Statement at ¶ 27; Pl. Lumhoo's 56.1 Statement at ¶ 34; Morway
Aff., Exh. M). Anderson asked Duffy if he could stop yelling, and Duffy
admonished Anderson for allegedly not wearing a seatbelt while on the
forklift. (Compl. ¶ 44; Pl. Anderson's 56.1 Statement at ¶ 27;
Pl. Lumhoo's 56.1 Statement at ¶ 34). When Anderson showed Duffy that
he was wearing a seatbelt, Duffy walked away and stated. "You worthless
niggers. . . We'll deal with you later." (Compl. ¶ 44; Pl.
Anderson's 56.1 Statement at ¶ 27; Pl. Lumhoo's 56.1 Statement at
¶ 34). Anderson responded angrily to Duffy. (Pl. Anderson's 56.1
Statement at ¶ 30).
Plaintiffs then saw Duffy speaking with Clougher, and Plaintiffs
approached Clougher to explain to him what had occurred between Duffy and
Anderson. (Pl. Anderson's 56.1 Statement at ¶ 31; Pl. Lumhoo's 56.1
Statement at ¶ 34). However, defendant Joseph Gervasi.*fn7 an
Assistant Manager of the Valley Stream store, came over to the group and
told Anderson, to "Shut the fuck up. What you say don't mean nothing. You
are nobody. You don't matter." (Compl. ¶ 44; Pl. Anderson's 56.1
Statement at ¶ 32; Pl. Lumhoo's 56.1 Statement at ¶ 34). Gervasi
also told Anderson that Duffy was part of the management team and "what
he says goes. You jump when [Duffy] says jump with no questions asked."
Gervasi called defendant Jose Camacho,*fn8 the Manager of the Valley
Stream store, at his home to apprise him of the situation and asked for
permission to fire Anderson for insubordination and for failing to wear a
seat belt in violation of Home Depot policy. (Pls. Memorandum of Law in
Opp. at 6). After receiving permission, on that same day. Gervasi
terminated Anderson's employment. (Compl. ¶ 46; Pl. Anderson's 56.1
Statement at ¶ 29; Pl. Lumhoo's 56.1 Statement at ¶ 39). Lumhoo
asked Clougher to intervene in the situation, however Clougher declined,
stating that while he knew what Duffy and Gervasi had done was wrong, he
could not go against his co-workers. (Compl. ¶ 46).
The following day, Camacho reviewed Anderson's termination notice and
spoke to Gervasi about the previous day's incident. (Pl. Anderson's 56.1
Statement at ¶ 39). In addition, Plaintiffs met with Camacho in order
to resolve the September 19, 1999 incident and requested that management
discipline Duffy for his use of a racial epithet. (Compl. ¶ 47; Pl.
Anderson's 56.1 Statement at ¶ 40).
Plaintiffs also reported to Sherma Nichols.*fn9 Assistant Manager of
the Valley Stream Store and the person designated to hear harassment and
discrimination complaints, the events surrounding Anderson's termination
and Duffy's use of the term "worthless niggers." (Pl. Anderson's 56.1
Statement at ¶ 45; Pl. Lumhoo's 56.1 Statement at ¶ 40; Pls.
Memorandum in Opp. at 5). Nichols directed Plaintiffs to reduce their
complaints to writing, and she passed the written complaints on to
Camacho. (Pl. Anderson's 56.1 Statement at ¶ 46: Pl. Lumhoo's 56.1
Statement at ¶ 41). Nichols also suggested that Anderson sneak to
Human Resources Manager Al DeLuca concerning this complaint. (Pl.
Anderson's 56.1 Statement at ¶ 48; Pl. Lumhoo's 56.1 Statement at
Plaintiffs went together to speak with DeLuca and gave him written
statements about the September 19, 1999 incident. (Pl. Anderson's 56.1
Statement at ¶ 49; Pl. Lumhoo's 56.1 Statement at ¶ 45). Three
weeks later, on October 12, 1999, DeLuca reinstated Anderson's employment
to a position at the Home Depot's Ozone Park Queens store,*fn10 paid
Anderson for the three week period of his termination and removed all
documents concerning his termination from Company records. (Compl. ¶
48; Pl. Anderson's 56.1 Statement at ¶¶ 50, 53-54; Pl. Lumhoo's 56.1
Statement at ¶ 46). DeLuca discussed the September 19, 1999 incident
with Duffy and a memorandum referencing the incident and reiterating Home
Depot's policy regarding discrimination was placed in Duffy's personnel
file. (Pl. Anderson's 56.1 Statement at ¶ 51; Pl. Lumhoo's 56.1
Statement at ¶ 47; Morway Aff., Exh. J).
On October 22, 1999, Lumhoo filed a charge of employment discrimination
based on race against defendant Home Depot with the Equal Employment
Opportunity Commission ("EEOC") and the New York State Division of Human
Rights ("NYSDHR") alleging an unlawful discriminatory practice based on
Home Depot's failure to discipline an employee who made a racial comment
in violation of Title VII and NYSHRL § 296. (Compl. ¶ 16; Morway
Aff., Exh. M). On November 4, 1999, Anderson filed a charge of employment
discrimination based on race against Home Depot with the EEOC and the
NYSDHR alleging that a racial slur asserted against him, his termination
and his reinstatement to part-time employment constituted unlawful
discriminatory practices in violation of Title VII and NYSHIRL §
296. (Compl. ¶ 16; Morway Aff., Exh. M). The NYSDHR
charges for administrative convenience on May 30, 2000, and on June 8,
2000, the Department of Justice issued right to sue letters to each
Plaintiff against defendant Home Depot. (Compl. ¶¶ 17-18, Exhs. A
On August 31, 2000, Plaintiffs commenced the instant action in the
United States District Court for the Eastern District of New York
alleging race discrimination arising from their employment at the Home
Depot's Valley Stream store in 1999. Specifically, in the complaint.
Plaintiffs allege in Counts 1 through 5 that Anderson's termination was
discriminatory and/or retaliatory, in Counts 6 through 8 that both
Anderson and Lumhoo were treated less favorably than white employees with
respect to promotions, compensation. recognition and discipline, and in
Counts 9 through 11 that both plaintiffs were subjected to a hostile work
environment all in violation of Title VII, § 1981 and NYSHRL.
Additionally. Plaintiffs allege in Count 12 that Defendants breached oral
contracts with respect to overtime payment for hours worked in excess of
eight hours per day.
Defendants now move for summary judgment pursuant to Fed.R.Civ.P. 56.
The underlying facts and applicable law surrounding each of Plaintiffs'
allegations will be presented in the relevant discussion section below.
Summary judgment is appropriate "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any. show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." Fed.R.Civ.P. 56(c); see also Celotex v. Catrett,
477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986)); Chambers v. TRM Copy
Centers Corp., 43 F.3d 29, 36 (2d Cir. 1994). A dispute regarding a
material fact is genuine "if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10 (1986). The
nonmoving party "must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita Elec. Indus.,
Ltd. v. Zenith Radio Corp., 474 U.S. 574, 586, 106 S.Ct.1348 (1986). Rule
56(e) "requires the nonmoving party to go beyond the pleadings and by
[its] own affidavits, or by the `depositions, answers to
interrogatories, and admissions on file,' designate specific facts
showing there is a genuine issue for trial.'" Celotex, 477 U.S. at 324,
106 S.Ct. 2548 (citing Fed.R.Civ.P. 56).
In considering a motion for summary judgment, "the judge's function is
not himself to weigh the evidence and determine the truth of the matter
but to determine whether there is a genuine issue for trial." Id. at
249, 106 S.Ct. at 2511. In doing so, "[t]he district court must draw all
reasonable inferences and resolve all ambiguities in favor of the
nonmoving party and grant summary judgment only if no reasonable trier of
fact could find in favor of the nonmoving party." Sutera v. Schering
Corp., 73 F.3d 13, 15 (2d Cir. 1995) (citation omitted).
While the Court is mindful that it must "[b]e especially cautious in
deciding whether to grant this drastic provisional remedy in a
discrimination case because the
employer's intent is often at issue and
careful scrutiny may reveal circumstantial evidence supporting an
inference of discrimination." Belfi v. Prendergast, 191 F.3d 129, 135 (2d
Cir. 1999), it is clear that "summary judgment remains available to
reject discrimination claims in cases lacking genuine issues of material
fact." Chambers v. TRM Copy Centers Corp., 43 F.3d 29. 40 (2d Cir.
1994); see also Mefri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1995) ("The
summary judgment rule would be rendered sterile . . . if the mere
incantation of intent or state of mind would operate as a talisman to
defeat an otherwise valid motion."); Miller v. Taco Bell Corp.,
204 F. Supp.2d 456, 458 (E.D.N.Y. 2002) ("where an employer provides
convincing evidence explaining its conduct, and the plaintiffs case rests
on conclusory allegations of discrimination, the court may properly
conclude that there is no genuine issue of material fact and grant
summary judgment to the employer").
I. Exhaustion of Administrative Remedies
As a threshold matter. Defendants contend that the causes of action in
the federal complaint sounding in disparate treatment, retaliation and a
hostile work environment in violation of Title VII (Counts 3, 6 and 9)
are not properly before this Court because Plaintiffs failed to raise
these claims in the administrative charges Plaintiffs had previously
filed with the NYSDHR and EEOC. According to Defendants, Plaintiffs'
administrative charges relate sole>; to the events of September 19, 1999,
and Plaintiffs have raised for the first time in their federal
complaint, additional Title VII discrimination claims of disparate
treatment with respect to promotions, compensation, recognition and
disciplinary measures. In addition, defendants contend that Plaintiffs
claim for the first time in their federal complaint that they were
subjected to a hostile work environment prior to September 19, 1999 and
that Andersons termination was in retaliation for earlier alleged
complaints of discrimination.
Plaintiffs may commence a Title VII employment discimination action in
federal court only after they have filed a timely complaint with the
EEOC, or with "a State local agency with authority to grant or seek
relief from such practice," and obtained a right-to-sue letter.
42 U.S.C. § 2000E-5(e) and (f); see Fitgerald v. Henderson,
251 F.3d 345, 358-59 (2d Cir. 2001) ("Title VII requires that an
employment discrimination claimant pursue administrative procedures
before commencing a lawsuit"); Biones v. Runyon, 101 F.3d 287, 289 (2d
Cir. 1996) (Plaintiffs raising claims under Title VII are required to
"exhaust available administrative remedies in a timely fashion").
Exhaustion of administrative remedies is "an essential element of Title
VII's statutory scheme," and is therefore a precondition to raising a
Title VII claim in federal court. Francis v. City of New York,
235 F.3d 763, 768 (2d Cir. 2000); see Holtz v. Rockefeller & Co.,
258 F.3d 62, 83 (2d Cir. 2001) ("Exhaustion of remedies is a precondition
to suit"). "The purpose of this exhaustion requirement is to give the
administrative agency the opportunity to investigate, mediate and take
remedial action." Brown v. Coach Stores Inc., 163 F.3d 706, 712 2d 1998)
(internal quotation marks and citation omitted).
Nonetheless, the Second Circuit has recognized that "claims that were
not asserted before the EEOC may be pursued in a subsequent federal court
action if they are `reasonably related' to those that were filed with the
agency." Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683,
686 (2d Cir. 2001) (per curiam)
(quoting Shah v. New York State Dept of
Civil Service, 168 F.3d 610, 614 (2d Cir. 1999); accord Holtz, 258 F.3d
at 83. Claims that are raised for the first time in the district court
may be considered reasonably related (1) "if the conduct complained of
would fall within the scope of the EEOC investigation which can
reasonably be expected to grow out of the charge[s] that w[ere] made,"
Fitzgerald, 251 F.3d at 359-60 (internal quotation marks and citation
omitted); (2) where the claims allege `retaliation by an employer against
an employee for filing an underlying claim of discrimination'" see Shah,
168 F.3d at 614; and (3) where the claims allege subsequent acts that
were "essentially the same as the allegedly wrongful conduct in the EEOC
complaint," Alemndral v. N.Y.S. Office of Mental Health, 743 F.2d 963,
967 (2d Cir. 1984).
Of these three types of "reasonably related" claims, only the first has
relevance in the instant matter, and Plaintiffs do not argue
otherwise.*fn11 Specifically, Plaintiffs' contend that the disparate
treatment, retaliation and hostile work environment claims are
"reasonably related" to the allegations and specific incidents of
discrimination contained in their administrative charges and should
therefore be expected to fall within the scope of an investigation into
the claims alleged in their NYSDHR and EEOC complaints. Plaintiffs'
contention is not completely without merit.
"Reasonably related" in this circumstance "means that despite the
claimant's having failed to specify the precise charge, the EEOC likely
would have investigated the conduct complained of anyway." Pemrick v.
Stracher, 67 F. Supp.2d 149, 170 (E.D.N.Y. 1999). That being said, "the
loose pleading allowance is not satisfied by vague, generalized
statements. Specific factual allegations must be made in order for the
EEOC to be able to investigate them reasonably." Cooper v. Xerox Corp.,
994 F. Supp. 429, 432 (W.D.N.Y. 1998); see also Findlay v. Reynolds Metal
Co., 82 F. Supp.2d 27, 34 (N.D.N.Y. 2000) ("Were we to permit such
vague, general allegations, quite incapable of inviting a meaningful EEOC
response, to define the scope of the EEOC investigation and thereby
predicate subsequent claims in the federal lawsuit, such allegations would
become routine boilerplate and Title VII's investigatory and mediation
goals would be defeated.") (internal quotation marks and citation
In the case at hand, Plaintiffs' NYSDHR & EEOC complaints
unambiguously limit Plaintiffs' claims to the events surrounding the
September 19, 1999 incident. Thus, to the extent that Plaintiffs' claims
of disparate treatment, retaliation and a hostile work environment arise
out of the September 19, 1999 incident and could be expected to grow out
of the charges made in the
foregoing complaints, they are deemed exhausted.
For example, Lumhoo's administrative charge states in pertinent part:
2. On April 27, 1998 [sic], I began working for the
Respondent's store located at 101 Green Acres Road,
Valley Stream, New York as Truck Driver. I have
performed my job in a satisfactory manner.
3. On September 19, 1999. I was loading a truck with
material with Jemel Anderson (Black), Order Puller.
Jim Duffy (Caucasian), Department Head, blocked our
loading aisles with his material and equipment. Mr.
Anderson asked Mr. Duffy to move the material from
the aisle so that we could continue loading our
truck. Mr. Duffy ignored Mr. Anderson's request. and
walked away. John "Doe" (Caucasian), Assistant
Manager, began to remove the material by a
forklift, but I told John to forget it and I would
use the lumber aisle to load trucks. Mr. Anderson
and I were moving the material through the lumber
aisle when Mr. Duffy came running down the aisle
screaming at us that we were damaging his lumber.
Mr. Anderson told Mr. Duffy to stop yelling. Mr.
Duffy then criticized Mr. Anderson for not wearing
his seat belt. Mr. Anderson thereupon showed Mr.
Duffy that he was wearing his seat belt. Mr. Duffy
walked away mumbling the words "worthless Niggers."
Mr. Anderson became very upset although I told him
it is not worth it, and to just let it go. Later
there was an altercation with Mr. Duffy, John, the
Assistant Manager, and Joe Vaci (Caucasian),
Assistant Manager. Mr. Vaci supported Mr. Duffy and
terminated Mr. Anderson. I told John that he should
have gotten involved in the matter and not let the
problem worsen. John responded by stating that he
could not go against his co-workers.
4. On September 20, 1999, I went to see Jose
Commacho [sic] (Hispanic Puerto Rican), Store
Manager, who was uninterested in resolving the
matter and disciplining Mr. Duffy. That same day, I
spoke to Sherma Malcolm (Black), Assistant Manager
of Deliveries about the matter and she told me to
speak to Al DeLuca (Caucasian), Human Resource
Manager. I spoke to Mr. DeLuca and asked, and got, a
transfer to the Ozone Park store. To date, Mr. Duffy
has not been disciplined for his racial comment.
5. I am Black. Based on the foregoing, I charge the
above-named Respondent with an unlawful
discriminatory practice based on employment by not
disciplining an employee, who made a racial comment
because of my race and color.
Similarly, Anderson's administrative charge states in pertinent part:
2. In May 1999 [sic], I began working for the
Respondent's store located at 101 Green Acres Road,
Valley Stream, New York as a [sic] Order Puller. I
have performed my job in a satisfactory manner.
3. On September 19, 1999, I was loading a truck with
material with Kenneth Lumhoo (Black), Truck Driver.
Jim Duffy (Caucasian). Department Head, blocked our
with his material and equipment. I
asked Mr. Duffy to move the material from the aisle
so that we could continue loading our truck. Mr.
Duffy ignored my request. and walked away. John
"Doe" (Caucasian), Assistant Manager, began to
remove the material by a forklift, but Mr. Lumhoo
told John to forget it and he would use the lumber
aisle to load trucks. Mr. Lumhoo and I were moving
the material through the lumber aisle when Mr. Duffy
came running down the aisle screaming at us that we
were damaging his lumber. I told Mr. Duffy to stop
yelling. Mr. Duffy then criticized me for not
wearing my seat belt. I showed Mr. Duffy that I was
wearing my seatbelt. Mr. Duffy walked away mumbling
the words "worthless Niggers." I saw' Mr. Duffy
sneaking [to] John, and I walked over to try to
explain what had occurred between Mr. Duffy and me.
Joe Vaci (Caucasian), Assistant Manager, walked over
to our group and told me to "shut the hell up. What
you say don't mean shit around hear [sic]." I asked
Mr. Vaci why it is all right for Mr. Duffy to call
us "out our name" and to disrespect us and it is
okay. Mr. Vaci responded Yes and added that if our
supervisor tells us to jump, we have to jump. About
an hour later, I was summoned to the manager's
office by Mr. Vaci. Mr. Vaci terminated me.
4. On October 12, 1999, I was telephoned by Al
DeLuca (Caucasian), Human Resources Manager, and
told that I could return to work at the Ozone Park,
Queens, store. It should be noted that I was able to
return to the Respondent as a part-time employee,
and not as a full-time employee (I worked as a
full-time employee at the Valley Stream store).
5. I am Black. Based on the foregoing, I charge the
above-named Respondent with an unlawful
discriminatory practice based on employment by being
called a racial slur, being terminated, and then
reinstated to part-time employment because of my
race and color.
Strikingly absent from both the NYSDHR & EEOC complaints are
allegations that Plaintiffs were treated less favorably than similarly
situated white employees with respect to promotions, compensation and
recognition. Moreover, the alleged facts underlying Plaintiffs'
administrative charges are notably distinct from the facts contained in
the disparate treatment, retaliation and hostile work environment claims
set forth in Counts 3, 6 and 9 of Plaintiffs' federal complaint. The
administrative charges solely allege claims relating to the September
19, 1999 incident, the disciplinary measures surrounding that event and
Anderson's reinstatement to an alleged part-time position three weeks
following that event.
Under these circumstances, an investigation into Plaintiffs'
administrative charges would not fall within the scope of, nor would be
reasonably expected to grow into an investigation of Plaintiffs' claims
of retaliation for earlier complaints of discrimination or a hostile work
environment prior to the September 19, 1999 incident or of disparate
treatment with respect to promotions, compensation and recognition. See
e.g., Ige v. Command Sec. Corp., 2002 WL 720944, at *6 (E.D.N.Y. Mar.
12, 2002) ("An investigation into the underlying incidents of Plaintiffs
disparate treatment claim would not lead an investigator to inquire about
a claim of hostile work environment"); Crespo v. New York City Transit
Auth., 2002 WL 398805, at *3 (E.D.N.Y. Jan. 7, 2002) (rejecting as
unexhausted Plaintiffs' harassment and hostile environment claims because
they "rely on different facts and embody different legal theories than
the discrimination claims raised in the EEOC Charge [and] would not
reasonably prompt an investigation into the facts that underlie her
claims"): Ghose v. Century 21, Inc., 108 F. Supp.2d 373, 376 (S.D.N.Y.
2000) (holding Plaintiffs' claims of discrimination based on his
association with African-American co-workers, a hostile work environment
and retaliation claims were not reasonably related to claims of racial
and national origin discrimination that were alleged in Plaintiffs'
original filing with the EEOC); Findlay, 82 F. Supp.2d at 34 (precluding
Plaintiff from asserting disparate treatment claim because Plaintiffs
EEOC complaints solely allege incidents underlying Plaintiff's hostile
work environment and retaliation claims); cf. Osier v. Broome Counry,
47 F. Supp.2d 311, 319-21 (N.D.N.Y. 1999) ("Plaintiff's conclusory
allegations of `sexual harassment' are insufficient to give defendants
notice of the many incidents of a hostile work environment that she is
now asserting in this lawsuit"); Szarka v. Reynolds Metals Co.,
17 F. Supp.2d 115, 124-26 (N.D.N.Y. 1998) (holding a charge of
retaliation cannot reasonably be expected to grow out of charges of sex
and age discrimination)
In short, that portion of Plaintiffs' claims set forth in their federal
complaint which charges disparate treatment with respect to promotions,
compensation and recognition, or which claims a hostile work environment
prior to September 19, 1999 or which alleges that Anderson's termination
was in retaliation for earlier complaints of discrimination is not
reasonably related to the claims Plaintiffs filed with the EEOC and the
NYSDHR. Conversely, that portion of Plaintiffs' claims which arise out of
the September 11, 1999 incident, including but not limited to Plaintiffs'
claims of disparate treatment with respect to disciplinary measures
surrounding that event and Anderson's reinstatement from an allegedly
full-time position to a part-time position as well as Plaintiffs'
retaliation claim and hostile work environment claims which directly
relate to the alleged discriminatory incident would fall within the scope
of Plaintiffs' administrative charges.
II. Employment Discrimination Claims
Title VII of the Civil Rights Act of 1964 provides,
in pertinent part:
It shall be an unlawful employment practice for an
employer (1) to fail or refuse to hire or to
discharge any individual, or otherwise to
discriminate against any individual with respect to
his compensation, terms, conditions, or privileges
of employment, because of such individual's race,
color, religion, sex or national origin.
42 U.S.C. § 2000e-2(a); see James v. New York Racing Ass'n,
233 F.3d 149, 153-55 (2d Cir. 2000).
Section 1981 states in relevant part, that "[a]ll persons within the
jurisdiction of the United States shall have the same right in every
State . . . to make and enforce contracts, . . . and to the full and
equal benefit of all the laws and proceedings for the security of persons
and property as is enjoyed by white citizens." 42 U.S.C. § 1981(a).
In analyzing a § 1981 claim based on employment discrimination,
courts employ the same standards as applied in Title VII.*fn12 See St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742 (1993);
Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir.
The New York State employment discrimination laws are likewise analyzed
under the same framework as governs Title VII and 1981 claims.*fn13 See
Leopold v. Baccarat, Inc., 174 F.3d 261, 264 & n. 1 (2d Cir. 1999);
Van Zant v. K.L.M Royal Dutch Airlines, 80 F.3d 708, 714-15 & n. 6
(2d Cir. 1996).
The Supreme Court has "established an allocation of the burden of
production and an order for the presentation of proof on . . .
discriminatory treatment cases." St. Mary's Honor Ctr., 509 U.S. at 506,
113 S.Ct. at 2746. Accordingly, under the pretext framework outlined in
McDonnell Douglas and Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 101 S.Ct. 1089 (1981),*fn14 first, a plaintiff must prove
by a preponderance of the evidence a prima facie case of discrimination.
St. Mary's Honor Ctr., 509 U.S. at 506, 113 S.Ct. at 2746. If the
plaintiff meets this burden, the burden shifts to the defendant, and the
defendant must produce evidence that the adverse employment actions were
taken "for some legitimates nondiscriminatory reason." Id. at 509, 113
S.Ct. at 2742
(quoting Burdine, 450 U.S. at 252-54, 101 S.Ct. at
1093-94); see James, 233 F.3d at 153-54.
Finally, if the defendant articulates a legitimate, nondiscriminatory
reason for the employment actions, "the presumption raised by the prima
facie case is rebutted, and drops from the case." St. Mary's Honor Ctr.,
509 U.S. at 507, 113 S.Ct. at 2747. The plaintiff then has the burden to
prove by a preponderance of the evidence that the employer's stated reason
was merely a pretext for discrimination. See Burdine, 450 U.S. at
252-53, 101 S.Ct. at 1093; James, 233 F.3d at 156 ("[O]nce a minimal
prima facie case is proved and the employer's nondiscriminatory
explanation has been given, the McDonnell Douglas presumptions disappear
from the case, and the governing standard is simply whether evidence,
taken as a whole, is sufficient to support a reasonable inference that
prohibited discrimination occurred."); Lanzo v. City of New York, 2000 WL
804628, at *6 (E.D.N.Y. May 18, 2000) ("The plaintiff must then show,
without the benefit of any presumptions, that it is more likely than not
that the employer's decision was motivated at least in part by a
discriminatory reason. Because the defendant has at this point offered a
nondiscriminatory reason for its actions, the plaintiff must show that
the proffered reason is in reality a pretext for unlawful
discrimination."). The Court must apply a case-by-case approach,
"examining the entire record to determine whether the plaintiff could
satisfy his ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff." Roge v. NYP
Holdings, Inc., 257 F.3d 167-68 (2d Cir. 2001) (internal quotation marks
and citation omitted).
Notwithstanding these shifting burdens. "[t]he ultimate burden of
persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the
plaintiff." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143.
120 S.Ct. 2097, 2106 (2000) (quoting Burdine, 450 U.S. at 253-54, 101
S.Ct. at 1089).
The Court will apply these principles to Plaintiffs' employment
discrimination claims of (1) discriminatory discharge; (2) retaliation;
(3) disparate treatment and (4) a hostile work environment.
(1) Discriminatory Discharge
In Counts 1, 2 and 4 of the complaint, Plaintiff Anderson alleges that
Defendants terminated his employment on the basis of his race and color
in violation of Title VII, § 1981 and the NYSHRL.
In order to establish a prima facie case of discriminatory discharge,
Anderson must demonstrate that (1) he is a member of a protected class;
(2) he was qualified for the position; (3) he suffered an adverse
employment action; and (4) the adverse employment action occurred under
circumstances giving rise to an inference of discrimination. See Stern
v. Trustees of Columbia Univ., 131 F.3d 305, 311-12 (2d Cir. 1997)
(citing Burdine, 450 U.S. at 253 & n. 6, 101 S.Ct. at 1094 n. 6);
Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994). The
plaintiff's burden of demonstrating a prima facie case is de minimus. See
Kerzer v. Kingly Mfg., 156 F.3d 396, 401 (2d Cir. 1998). "In determining
whether the plaintiff has met the de minimus initial burden of showing
circumstances giving rise to an inference of discrimination, the function
of the court on a summary judgment motion is to determine whether the
proffered admissible evidence shows circumstances that would be sufficient
to permit a rational finder of fact to infer a discriminatory motive. It
is not the province of the summary judgment court itself to decide what
should be drawn." Cronin v. Aetna Life Ins. Co., 46 F.3d 196,
204 (2d Cir. 1995) (internal quotation marks and citation omitted).
(a) First and Second Elements
There is no dispute that Anderson is a member of a protected class and
that he was qualified for his position. Accordingly, to determine whether
Anderson has proved a prima facie case, the real issues in dispute are
whether he suffered an adverse employment action and whether he was
treated differently than similarly-situated non-minority employees for
the same or similar conduct. The record in this case demonstrates ...