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LUMHOO v. HOME DEOPOT USA

September 26, 2002

KENNETH C. LUMHOO AND JEMEL ANDERSON, PLAINTIFFS
V.
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

          MEMORANDUM AND ORDER

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 as moot.

FACTUAL BACKGROUND

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. 1999).

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." (Compl. 45).

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 ¶ 43).

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 dismissed the 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 & B).

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.

DISCUSSION

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 omitted).

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:

1. I am Black.

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.

(Morway Aff., Exh. M).

Similarly, Anderson's administrative charge states in pertinent part:

1. I am Black.

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.
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.

(Morway Aff., Exh. M).

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.

With the exception of Plaintiffs' allegations of disparate treatment with respect to disciplinary measures and Anderson's reinstatement to part-time employment, nothing in Plaintiffs' administrative filings suggests that Defendants subjected Plaintiffs to disparate treatment with respect to promotions. wages or other work-related benefits, (see Compl. ¶ 75), or that Defendants terminated Anderson in retaliation for earlier alleged complaints of discrimination, (see Compl. ¶ 67), or that Defendants subjected Plaintiffs to a hostile work environment and pervasive racial harassment prior to September 19, 1999, (see Compl. ¶ 81). Rather, Plaintiffs' administrative complaints consist of a recitation of the alleged discriminatory incident that occurred on September 19, 1999 and charge defendant Home Depot with an unlawful employment discriminatory practice based on (1) Home Depot's failure to discipline an employee supervisor who made a racial comment because of Lumhoo's race and color; and (2) a Home Depot supervisor using a racial slur against Anderson. thereafter resulting in Anderson's termination and subsequent reinstatement to a part-time employment position because of Anderson's race and color.

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. 2000).

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 inferences 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 ...


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