United States District Court, S.D. New York
August 12, 2005.
JEAN-CLAUDE FRANCHITTI, Plaintiff,
BLOOMBERG, L.P., and SANDRA HUTCHINS, Defendants.
The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
REPORT AND RECOMMENDATION
Jean-Claude Franchitti brings this employment discrimination
action pursuant to Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq. ("Title VII"); 42 U.S.C. § 1981; the New
York State Human Rights Law, N.Y. Exec. Law § 296 et seq.; and
the New York City Human Rights Law, N.Y. City Admin. Code § 8-101
et seq. He alleges that his former employer, Bloomberg, L.P.
("Bloomberg"), and former supervisor, Sandra Hutchins,
discriminated against him because he is French, created a hostile
work environment, and retaliated against him for complaining. The
defendants now move for summary judgment pursuant to Rule 56 of
the Federal Rules of Civil Procedure. For the reasons that
follow, I recommend that the defendants' motion be granted in
part and denied in part.
Unless otherwise stated, the following facts are either
uncontested or construed most favorably to the plaintiff. Dr.
Franchitti, a French citizen and legal permanent resident of the United States, began working for Bloomberg in April 2002.
(Amended Complaint ("Am. Compl."), ¶¶ 11, 34). He was hired as a
computer scientist and trainer, responsible for training
employees and updating Bloomberg's technology. (Am. Compl., ¶ 35;
Plaintiff's Reply to Defendants' Local Rule 56.1 Statement, dated
May 18, 2005 ("Pl. Reply 56.1 Statement"), ¶ 6).
Upon joining Bloomberg, Dr. Franchitti signed a confidentiality
agreement that prohibited employees from using company equipment
for personal purposes, participating in any competing entity, or
attempting to induce company workers to leave Bloomberg.
(Bloomberg Employee Confidentiality Agreement, dated April 22,
2002, at 2, attached as Exh. 7 to Affidavit of Thomas H. Golden
("Golden Aff.")). Bloomberg's employee handbook provides that an
employee may be terminated for dishonesty, performing non-company
work during business hours, improper use of company equipment,
and excessive absence or tardiness. (Bloomberg's Employee
Resources and Information Guide at 9-11, attached as Exh. 8 to
A. Hostile Work Environment
Dr. Franchitti identifies Mark Mandell as the chief protagonist
in his hostile work environment claim. (Plaintiff's Reply and
Objections to Defendants' First Set of Contention Interrogatories
("Pl. Interrog. Ans."), dated Feb. 28, 2005, at 2, included as
Exh. 13 in Plaintiff's Appendix of Exhibits ("Pl. App.")). Mr. Mandell's responsibilities included preparing work
schedules, or timetables, for the classes taught by Dr.
Franchitti. (Deposition of Mark Mandell, dated Nov. 3, 2004
("Mandell Dep."), at 9-10, included as Exh. 8 in Pl. App.). Dr.
Franchitti claims that Mr. Mandell's offensive conduct was more
frequent and pervasive than the conduct of any other employee.
(Pl. Interrog. Ans. at 2).
The offensive conduct attributed to Mr. Mandell includes: (1)
Mr. Mandell's continued misspelling and misuse of French words in
ten to fifteen e-mails sent to Dr. Franchitti, despite Dr.
Franchitti's initial attempts to correct him and subsequent
requests that Mr. Mandell address him only in English (Deposition
of Jean-Claude Franchitti, dated Sept. 27, 2004 and Oct. 7, 2004
("Pl. Dep."), at 90, 98, 105, included as Exh. 1 in Pl. App.);
(2) Mr. Mandell's statement in August 2002 that it would be funny
if he and Dr. Franchitti had a comedy show together in which the
plaintiff would answer Mr. Mandell's questions with a French
accent (Pl. Dep. at 102-03, 246); (3) Mr. Mandell's statement in
September 2002 that Dr. Franchitti was not capable of preparing
the work timetables because he is French (Pl. Dep. at 111); (4)
Mr. Mandell's amazement that students would applaud after a
lecture by Dr. Franchitti (Pl. Dep. at 267-68); (5) Mr. Mandell's
comment that if Dr. Franchitti could teach, then so could he (Pl.
Dep. at 268); and (6) Mr. Mandell's questioning of Dr.
Franchitti's wife at a business dinner about whether "French guys go out a lot" or "do
anything better than American guys[.]" (Deposition of Marianna
Vertsman, dated Nov. 17, 2004, at 151-52, attached as Exh. 5 to
Dr. Franchitti also accuses other Bloomberg employees of
engaging in discriminatory conduct. One co-worker feigned an
inability to understand the plaintiff, constantly asked him to
repeat himself because of his French accent, and belittled his
degree from the University of Colorado and teaching position at
New York University. (Pl. Dep. at 249-50). A second employee
frequently greeted the plaintiff "bonjour, missieu,"*fn1
even after being asked by the plaintiff to address him only in
English. (Pl. Dep. at 251-52). A third employee repeatedly
addressed the plaintiff as "Frenchie" with a mocking expression
on her face. (Pl. Dep. at 255, 257). Finally, several co-workers
questioned the plaintiff about the French government's position
on the war in Iraq. (Pl. Dep. at 254).
Lastly, the plaintiff claims that his former supervisor, Dr.
Hutchins, discriminated against him by asking students whether
they could understand his accent and by stating that he "should
really speak English" while teaching. (Pl. Dep. at 268-69). Other
claims of harassment by Dr. Hutchins are connected with her purported
retaliation. (Pl. Dep. at 281). These incidents are described
Dr. Franchitti testified that his work environment made him
feel humiliated. (Pl. Dep. at 353-54). While the plaintiff says
his performance never declined, he does assert that his "feeling
about being there suffered." (Pl. Dep. at 353).
According to Dr. Franchitti, Dr. Hutchins was the key player in
efforts to retaliate against him. (Pl. Interrog. Ans. at 2). Dr.
Franchitti states he twice complained to Dr. Hutchins about the
hostile work environment. (Pl. Dep. at 399). He claims that Dr.
Hutchins then began a "retaliatory campaign" that "searched for
grounds to recommend [his] termination." (Plaintiff's Memorandum
of Law in Opposition to Defendants' Motion for Summary Judgment
("Pl. Memo.") at 18-19).
The first instance of alleged retaliation was the plaintiff's
October 2002 performance appraisal, which was written by Dr.
Hutchins. In the appraisal, Dr. Hutchins spoke highly of Dr.
Franchitti's performance but was critical of his interpersonal
skills. (R&D Performance Appraisal dated Oct. 23, 2002
("Appraisal"), at 2-3, included as Exh. 16 in Pl. App.). Dr.
Hutchins wrote that the plaintiff should take a communications
course and improve his teamwork. (Appraisal at 5). Dr. Franchitti objected to the report because he thought the criticisms were
false and retaliatory. (Pl. Interrog. Ans. at 4). Dr. Franchitti
also believed the communications course was a discriminatory
reference to his French accent.*fn2 (Pl. Dep. at 281). The
plaintiff claims he only signed the report after Glenn Jacoby, a
manager at Bloomberg, promised Dr. Franchitti that he would
investigate the complaints of discrimination. (Pl. Interrog. Ans.
at 4). The plaintiff asserts that Dr. Hutchins and Mr. Jacoby
then had an argument, during which Dr. Hutchins complained about
Dr. Franchitti's discrimination claims. (Deposition of Joanna
Gilberti, dated Dec. 6, 2004 ("Gilberti Dep."), included as Exh.
4 in Pl. App., at 25). Dr. Franchitti says this sequence of
events led Dr. Hutchins to intensify her campaign against him.
(Pl. Memo. at 18).
In October 2002, Dr. Hutchins was told that Dr. Franchitti
frequently came in late, left early, was absent, asked assistants
to cover his classes, and seemed to be doing outside work during
business hours. (Hutchins Dep. at 86, 95, 97-98). Dr. Hutchins
then asked the Human Resources Department to investigate the
plaintiff. (Hutchins Dep. at 92). The investigation was performed by Lisa Jennings. (Hutchins Dep. at 93).
Ms. Jennings first met with the plaintiff in early November to
discuss possible conflicts with work he was performing at New
York University. (Pl. Dep. at 399). At this meeting, Dr.
Franchitti says he informed Ms. Jennings of what he perceived to
be a hostile work environment. (Pl. Dep. at 401).
In November 2002, Dr. Hutchins discovered a document on the
local hard drive of a Bloomberg computer that contained a to-do
list created by the plaintiff. (Hutchins Dep. at 144). After
reading portions of the list, Dr. Hutchins gave it to Ms.
Jennings. (Hutchins Dep. at 149-50). The list contained dates and
times for various meetings. ("To-do List," included as Exh. 22 in
Pl. App., at BLP02401-03). Since several of these meetings were
scheduled on workdays, Ms. Jennings inferred that Dr. Franchitti
missed work to attend the meetings. (Deposition of Lisa Jennings
dated Dec. 7, 2004 ("Jennings Dep."), included as Exh. 2 in Pl.
App., at 91). The list also mentioned other Bloomberg employees,
one of whom told Ms. Jennings that he was asked by the plaintiff
to join a start-up company. (To-do List at BLP02401-03; Affidavit
of Jon Edward Steiner, dated April 29, 2003, attached as Exh. 17
to Golden Aff., ¶ 3).
The plaintiff eventually learned that he was being investigated
for attempting to hire people away from Bloomberg and demanded a
meeting with Ms. Jennings. (Pl. Dep. at 413-14). At the meeting, Ms. Jennings questioned the plaintiff about the
To-do List, (Pl. Dep. at 417-18), and he was unable to answer
some of the questions. (Pl. Reply 56.1 Statement at 23).
Ms. Jennings reported her findings to Pamela Morris, a manager
in Human Resources. (Affidavit of Pamela Morris, dated March 30,
2005 ("Morris Aff."), ¶¶ 1, 3-4). Ms. Morris concluded that the
plaintiff may have been involved in an outside business and may
have solicited other Bloomberg employees to work on non-Bloomberg
projects. (Morris Aff., ¶ 6). She also concluded that Dr.
Franchitti was not forthcoming when asked about the To-do List.
(Morris Aff., ¶ 8). After Ms. Morris discussed the matter with
Linda Norris, Bloomberg's global manager of Human Resources, it
was decided that Dr. Franchitti should be terminated. (Morris
Aff., ¶ 10). The plaintiff was informed of his termination on
November 19, 2002. (Pl. Dep. at 430-31). Dr. Franchitti believes
that Dr. Hutchins also recommended his firing. (Pl. Memo. at 32).
C. Procedural History
In March 2003, Dr. Franchitti filed a charge of discrimination
with the Equal Employment Opportunity Commission. (Am. Compl., ¶
9). It was dismissed on June 25, 2003, and the plaintiff was
provided notice of his right to sue. (Dismissal and Notice of
Rights, attached as Exh. 29 to Golden Aff.). Dr. Franchitti filed
a pro se complaint in the instant action on September 24,
2003. (Am. Compl., ¶ 9). Since then, he retained counsel, and I
granted the plaintiff's motion to amend his complaint on October 20,
Subsequent discovery has produced additional evidence of the
plaintiff's extracurricular activities while employed at
Bloomberg. First, the plaintiff admits he met with a nonprofit
group during Bloomberg business hours to explore the commercial
viability of a software program he had designed with several
students. (Pl. Reply 56.1 Statement at 11, 13; Pl. Interrog. Ans.
at 6-7). Second, Dr. Franchitti admits he set up a corporation in
Nevada so it could purchase real estate in Catskill, New York.
(Pl. Reply 56.1 Statement at 8-9). Third, the plaintiff concedes
he spoke with a co-worker about creating documentation for a
project. (Pl. Dep. at 224-25).
The defendants now move for summary judgment pursuant to Rule
56 of the Federal Rules of Civil Procedure. They assert that Dr.
Franchitti's allegations of harassment do not constitute a
hostile work environment. The defendants also claim that Dr.
Franchitti has failed to demonstrate that the reasons they offer
for his dismissal are a pretext for discrimination or
A. Standard for Summary Judgment
Summary judgment shall be granted "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 the moving party is
entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In reviewing
the record, all evidence must be assessed in the light most
favorable to the nonmovant and all reasonable inferences must be
drawn in his favor. See Delaware & Hudson Railway Co. v.
Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990).
"[T]he trial court's task at the summary judgment motion stage
of the litigation is carefully limited to discerning whether
there are any genuine issues of material fact to be tried, not to
deciding them." Gallo v. Prudential Residential Services, Ltd.
Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994). "[S]ummary
judgment must be rejected if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
partying." Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456,
465 (2d Cir. 2001) (quotation marks and citation omitted).
Summary judgment is also generally inappropriate where the
defendant's state of mind is at issue. See Gelb v. Board of
Elections of the City of New York, 224 F.3d 149, 157 (2d Cir.
2000). Therefore, it should be granted with caution in employment
discrimination cases. See Gallo, 22 F.3d at 1224. However,
the "impression that summary judgment is unavailable to
defendants in discrimination cases is unsupportable." McLee v.
Chrysler Corp., 38 F.3d 67, 68 (2d Cir. 1994). Instead, "the
salutary purposes of summary judgment avoiding protracted,
expensive and harassing trials apply no less to discrimination
cases than to . . . other areas of litigation." Abdu-Brisson, 239 F.3d at 466; Meiri v.
Dacon, 759 F.2d 989, 998 (2d Cir. 1985).
To survive summary judgment, the nonmoving party cannot rely on
mere allegations or denials. Fed.R.Civ.P. 56(e). Instead, it
must present affirmative evidence showing a genuine issue for
trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257
(1986). Where a party relies on its own pleadings, testimony or
affidavits to oppose summary judgment, these statements must be
made on personal knowledge. See Patterson v. County of
Oneida, 375 F.3d 206, 219 (2d Cir. 2004). Conclusory assertions
and statements made upon information and belief are insufficient
to create a genuine issue of material fact. Id.
B. Claims Against Defendant Bloomberg
1. Hostile Work Environment
Title VII makes it "an unlawful employment practice for an
employer . . . to fail or refuse to hire or to discharge any
individual or otherwise 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)(1). This
language reaches not only economic discrimination, but also the
creation or tolerance of a discriminatory hostile environment.
See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
A work environment is considered hostile if it is "permeated
with discriminatory intimidation, ridicule, and insult . . . that
is sufficiently severe or pervasive to alter the conditions of
the victim's employment and create an abusive work environment."
Id. at 21 (citation omitted). The conduct in question must have
created an environment that was both subjectively and objectively
hostile. See id. at 21-22.
For an employer to be held liable for permitting a hostile work
environment, the plaintiff must also demonstrate that the
offensive conduct should be imputed to the employer. See
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 70-71 (1986);
Kotcher v. Rosa & Sullivan Appliance Center, Inc., 957 F.2d 59,
63 (2d Cir. 1992). The plaintiff can do so by proving that the
employer knew of the harassment but failed to address it. See
Faragher v. City of Boca Raton, 524 U.S. 775, 789 (1998);
Kotcher, 957 F.2d at 63.
Dr. Franchitti's complaints of discrimination show he
subjectively perceived that his work environment was hostile.
Therefore, the questions that remain are whether the environment
was objectively hostile and, if so, whether Bloomberg can be held
liable for permitting such a situation to exist. To determine whether a workplace was objectively hostile, a
court must examine the case-specific circumstances in their
totality. See Harris, 510 U.S. at 23. In doing so, factors to
consider include: (1) the frequency of the discriminatory
conduct; (2) its severity; (3) whether it was physically
threatening or humiliating, or merely an offensive utterance; (4)
whether it unreasonably interfered with the employee's work
performance; and (5) its effect on the employee's psychological
well-being. Id. A plaintiff can succeed with such a claim by
demonstrating either that "a single incident was extraordinarily
severe or that a series of incidents were `sufficiently
continuous and concerted' to have altered the conditions of his
working environment." Cruz v. Coach Stores, 202 F.3d 560, 570
(2d Cir. 2000) (quoting Perry v. Ethan Allen, Inc.,
115 F.3d 143, 149 (2d Cir. 1997)).
"While the standard for establishing a hostile work environment
is high, [the Second Circuit has] repeatedly cautioned against
setting the bar too high, noting that . . . the test is whether
the harassment is of such quality or quantity that a reasonable
employee would find the conditions of her employment altered for
the worse." Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003)
(quotation marks, citations, and emphasis omitted). "The
environment need not be unendurable or intolerable." Id.
(quotation marks and citation omitted).
Dr. Franchitti has testified that his work performance did not suffer as a result of the discriminatory acts, and he presents no
evidence that they were physically threatening or affected his
psychological well-being. These factors, however, are not
required to find an objectively hostile work environment. See
Harris, 510 U.S. at 23 ("[N]o single factor is required.").
Dr. Franchitti's allegations of discriminatory harassment break
down as follows. Three accusations were isolated events in which
the plaintiff's national origin was directly insulted: Mr.
Mandell's comedy show and timetabling comments, as well as his
questioning of Dr. Franchitti's wife. Five others were repeated
events dealing with Dr. Franchitti's national origin: Mr.
Mandell's e-mails to the plaintiff, another co-worker's feigned
inability to understand the plaintiff's accent, frequent
derogatory greetings by a third employee, a fourth individual's
addressing the plaintiff as "Frenchie," and several co-workers'
questioning of Mr. Franchitti about the French government's
position on the war in Iraq. Three allegations were isolated
events that did not directly relate to Dr. Franchitti's national
origin: Mr. Mandell's amazement at applause received by the
plaintiff after a lecture, Mr. Mandell's disparaging remarks
about the plaintiff's teaching skills, and the deprecation of the
plaintiff's education and teaching position by the co-worker who
constantly asked the plaintiff to repeat himself because of his French accent.*fn4 The plaintiff also alleges
that the Human Resources investigation of his outside activities
contributed to the hostile work environment. For Dr. Franchitti's
claim to survive summary judgment, a reasonable jury must be able
to find that these allegations were continuous enough to alter
the conditions of the plaintiff's work environment.
The defendants attempt to separate Dr. Franchitti's allegations
of harassment and undermine them individually. While it is true
that several of the plaintiff's claims would fall short if viewed
in isolation, I must consider them as a whole. Dr. Franchitti
asserts that he faced almost daily harassment because of his
national origin. Although most of Dr. Franchitti's allegations
are not severe, a reasonable jury could conclude that the
frequency of the harassment altered the plaintiff's work
environment. See Macri v. Newburgh Enlarged City School
District, No. 01 Civ. 1670, 2004 WL 1277990, at *11-12 (S.D.N.Y.
June 8, 2004) (denying summary judgment when comparatively mild
comments were frequently repeated).
Liability for the plaintiff's work environment can also be
imputed to Bloomberg. For the purposes of summary judgment, I
must accept the plaintiff's testimony that he informed his superiors
and other officials of the harassment he faced, as required by
the Bloomberg employee handbook. As such, the knowledge of these
officials can be imputed to Bloomberg. See Distasio v. Perkin
Elmer Corp., 157 F.3d 55, 64 (2d Cir. 1998) ("An official's
knowledge will be imputed to an employer when . . . the official
is charged with a duty to inform the company of the
Since the harassment is alleged to have persisted throughout
the plaintiff's employment, and since the defendants offer no
proof that they investigated Dr. Franchitti's complaints, they
can be held liable for his hostile work environment. While the
defendants present a question of fact regarding the veracity of
the plaintiff's testimony, the resolution of this question turns
on credibility assessments that are inappropriate at this stage.
Therefore, summary judgment should be denied on the hostile work
2. Discriminatory Discharge and Disparate Treatment
Title VII employment discrimination claims based on
circumstantial evidence are examined under the burden shifting
model first established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). The plaintiff must first establish a prima
facie case of discrimination. Id. at 802. To do so, he must
show that: (1) he belongs to a protected class; (2) he was
qualified for the position held; (3) he suffered an adverse
employment action; and (4) the circumstances surrounding the adverse employment action
give rise to an inference of discrimination. See Cruz,
202 F.3d at 567. At the summary judgment stage, the burden of
establishing a prima facie case is minimal. See Roge v. NYP
Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001). Once a prima
facie case is made out, the law creates a presumption that the
employer unlawfully discriminated against the plaintiff. See
Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997).
The burden then shifts to the defendants to articulate a
nondiscriminatory reason for the adverse employment action. See
Cruz, 202 F.3d at 567; McDonnell Douglas, 411 U.S. at 802.
This burden is one of production, not persuasion; it can involve
no credibility assessment. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 142 (2000). If the defendants'
burden is met, the McDonnell Douglas framework disappears.
See id. at 142-43. All that remains is for the plaintiff to
demonstrate, by a preponderance of the evidence, that the
employer's legitimate reasons were merely a pretext for
discrimination. See id. at 143.
Dr. Franchitti is able to meet the minimal burden of
establishing a prima facie case: (1) he belongs to a protected
class; (2) he was qualified for the position held, as evidenced
by his hiring and largely positive performance review; (3) his
termination qualifies as an adverse employment action; and (4)
the alleged instances of discriminatory harassment occurred under circumstances giving rise to an inference of discrimination.
Accordingly, the plaintiff has created a presumption that
Bloomberg unlawfully discriminated.
The defendants, however, have eliminated this presumption by
articulating legitimate reasons for Dr. Franchitti's termination.
The defendants contend that the plaintiff was fired for lying
about his creation of the To-do List, conducting outside business
during working hours, and attempting to induce Bloomberg
employees to leave their positions within the company. The
plaintiff is unable to rebut these legitimate reasons by showing
that they are pretextural and that the real reason was
discriminatory. His conclusory statements of discrimination and
unsupported allegations of disparate treatment are not enough to
prevent summary judgment.
Bloomberg presents evidence that, prior to Dr. Franchitti's
termination, it was informed that the plaintiff frequently missed
work and appeared to be doing outside work during business hours.
Bloomberg subsequently discovered the plaintiff's To-do List,
which provided independent confirmation that Dr. Franchitti held
outside meetings during working hours. Bloomberg was then told
that the plaintiff had asked another employee to create
documentation for an outside project. This led Bloomberg to
believe that the plaintiff was inducing co-workers to leave the
company. According to its employee handbook, employment can be
terminated for any of these violations. Subsequent discovery has corroborated Bloomberg's beliefs. Dr.
Franchitti concedes that he missed work to attend a meeting where
he explored the commercial viability of a software program. He
also admits he spoke to a co-worker about creating documentation
for an outside project. These admissions weigh against a finding
of pretext. See Gant v. Wallingford Board of Education,
195 F.3d 134, 147 n. 17 (2d Cir. 1999) ("When a factfinder considers
whether a defendant's asserted nondiscriminatory reason was a
true basis for its decision, whether the asserted
nondiscriminatory reason was true at all is highly relevant.").
Dr. Franchitti attempts to rebut the defendants' proffered
reasons and to prove discrimination by introducing a disparate
treatment argument. (Pl. Memo. at 38). The plaintiff presents
evidence that Jon Steiner, another Bloomberg employee who
violated company policy, only received a warning for his conduct.
(Pl. Memo. at 38-39; Hutchins Dep. at 185). Mr. Steiner's
violation was improper internet usage. (Hutchins Dep. at 185).
Dr. Franchitti asserts that his own termination, when contrasted
with Mr. Steiner's warning, shows disparate treatment. (Pl. Memo.
at 39-40). This argument fails.
When a plaintiff seeks to show he was subjected to disparate
treatment, he must show he was similarly situated in all material
respects to the individuals with whom he seeks to compare
himself. Graham v. Long Island Rail Road, 230 F.3d 34, 39 (2d
Cir. 2000). This "all material respects" standard requires the plaintiff to
show that similarly situated employees who went undisciplined
engaged in comparable, although not necessarily identical,
conduct. Id. at 40.
Dr. Franchitti's disparate treatment claim falls short because
the plaintiff has not shown that he was similarly situated to Mr.
Steiner in all material respects. It is clear that the plaintiff
and Mr. Steiner violated several of the same policies, including
improper personal use of company equipment and performing other
than company work during working hours. However, that was the
full extent of Mr. Steiner's violations and just the beginning of
Dr. Franchitti's. The plaintiff was also suspected of lying,
having a spotty attendance record, and having attempted to induce
another employee to leave the company. The conduct of the two is
therefore not comparable.
The plaintiff is also unable to point to any evidence that
discrimination motivated his dismissal. The defendants present
evidence that the termination decision was made by Pamela Morris,
with the approval of Linda Norris and Bloomberg's Chief Executive
Officer. (Morris Aff., ¶¶ 10, 11). The plaintiff presents no
evidence that any of these officers bore discriminatory animus
against him. Instead, he merely asserts that the termination
decision was actually made by Dr. Hutchins. (Pl. Reply 56.1
Statement at 25). Such a statement, made solely upon information and belief, is insufficient to defeat summary judgment. See
Weinstock v. Columbia University, 224 F.3d 33, 41 (2d Cir.
2000) ("[U]nsupported allegations do not create a material issue
Since the plaintiff offers no affirmative evidence to rebut as
pretextual the legitimate reasons for his termination, the
defendants' motion for summary judgment with respect to Dr.
Franchitti's claims of discriminatory discharge and disparate
treatment should be granted.
Title VII also makes it unlawful "for an employer to
discriminate against any of his employees . . . because he has
opposed any practice made an unlawful employment practice by this
[subchapter]." 42 U.S.C. § 2000e-3(a). This section is violated
when "an employer is motivated by a retaliatory animus, even if
valid objective reasons for the discharge exist." Cosgrove v.
Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993). The
retaliatory motive, however, must be at least a substantial or
motivating factor for the adverse action. See Mt. Healthy City
School District Board of Education v. Doyle, 429 U.S. 274, 287
(1977); Raniola, 243 F.3d at 625.
The allocation of burdens of proof in retaliatory discharge
claims is determined by McDonnell Douglas. See Cosgrove,
9 F.3d at 1038. To establish a prima facie case of retaliation, the plaintiff must demonstrate that: (1) he was engaged in an
activity protected under Title VII; (2) the employer was aware of
the plaintiff's participation in the protected activity; (3) the
employer took adverse action against the plaintiff; and (4) a
causal connection existed between the plaintiff's protected
activity and the adverse action. See Mack v. Otis Elevator
Co., 326 F.3d 116, 129 (2d Cir. 2003).
"To prove that he engaged in [a] protected activity, the
plaintiff need not establish that the conduct opposed was in fact
a violation of Title VII." Manoharan v. Columbia University
College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.
1988). (citation omitted). Instead, he must only demonstrate that
he had a good faith, reasonable belief that the underlying
challenged actions of the employer violated the law. See id.
The requisite causal connection can be established directly
through evidence of retaliatory animus directed against the
plaintiff. See DeCintio v. Westchester County Medical Center,
821 F.2d 111, 115 (2d Cir. 1987). The causal connection can also
be established indirectly, either by showing temporal proximity
between the protected activity and the adverse action or by
offering evidence of disparate treatment of others engaged in
similar conduct. See id.
Dr. Franchitti asserts that retaliation can be inferred from
the negative comments in his performance review, from the investigation launched by Human Resources, and from his
The plaintiff satisfies the first requirement of the prima
facie case by demonstrating a good faith, reasonable belief that
his hostile work environment violated the law. See Macri,
2004 WL 1277990, at *17 (finding plaintiff's belief to be
reasonable because her claims were substantial enough to survive
summary judgment). Therefore, the plaintiff's complaints to
Bloomberg officials can be considered protected activity. See
Gregory v. Daly, 243 F.3d 687, 700 (2d Cir. 2001) ("The law
protects employees in the filing of formal charges of
discrimination as well as in the making of informal protests of
discrimination[.]"). Likewise, Dr. Franchitti's complaints
satisfy the second requirement of the prima facie case employer
awareness since those officials were charged with the
responsibility to investigate such claims.
Dr. Franchitti's negative performance review, however, fails to
qualify as an adverse action. Dr. Franchitti was not fired,
reassigned or otherwise tangibly affected by the performance
report. He only alleges that the review contributed to his
hostile work environment. By itself, however, the comments in the
review are too isolated to have altered the plaintiff's work
environment. Since "[r]eprimands that do not lead to materially
adverse employment consequences are generally not considered
actionable forms of retaliation," Brierly v. Deer Park Union
Free School District, 359 F. Supp. 2d 275, 300 (E.D.N.Y. 2005), the
plaintiff's retaliation claim based on his performance review
fails as a matter of law.
The investigation of the plaintiff and his subsequent
termination, on the other hand, do satisfy the adverse action
requirement. Dr. Franchitti also indirectly establishes a causal
connection by showing that his complaints about discrimination
were followed closely by the investigation and termination.
Having done so, the plaintiff has established a prima facie case
of retaliation with respect to the investigation and termination.
The burden then shifts to the defendants to articulate a
nondiscriminatory rationale for their actions. The defendants do
so by stating that the plaintiff was investigated following
reports of his frequent absences and was fired for dishonesty,
for performing outside work during business hours, and for
inducing employees to leave the company. The defendants have also
produced evidence that the employees to whom Dr. Franchitti
complained about harassment played no role in the decision to
terminate him. (Morris Aff., ¶¶ 14-15). Moreover, one of the
managers who did make the decision has stated that she did not
know of Dr. Franchitti's complaints prior to his termination.
(Morris Aff., ¶ 13).
To survive summary judgment, Dr. Franchitti need not disprove
the defendants' proffered rationale. See Holtz v. Rockefeller
& Co., 258 F.3d 62, 78-79 (2d Cir. 2001); Fields v. New York
State Office of Mental Retardation & Developmental Disabilities,
115 F.3d 116, 120 (2d Cir. 1997). Instead, he must only offer
sufficient evidence to allow a reasonable jury to find that the
defendants intentionally retaliated against him for engaging in
protected activity. See Gordon v. New York City Board of
Education, 232 F.3d 111, 117 (2d Cir. 2000); Cosgrove,
9 F.3d at 1039; Kodenga v. International Business Machines Corp.,
88 F. Supp. 2d 236, 244 (S.D.N.Y. 2000).
The plaintiff has satisfied this burden by producing
independent evidence that Dr. Hutchins complained about Dr.
Franchitti's claims of discrimination during an argument with Mr.
Jacoby. Since the plaintiff has produced evidence that could
allow a reasonable jury to find a retaliatory motive in the
investigation that led to his termination, summary judgment
should be denied.
C. Claims Against Defendant Sandra Hutchins
While individuals may not be held personally liable under Title
VII, see Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir.
1995), they may be liable under 42 U.S.C. § 1981, the New York
City Human Rights Law and the New York State Human Rights Law.
See Ifill, 2005 WL 736151, at *3. Section 1981 states that
"all persons . . . shall have the same right . . . to make and
enforce contracts . . . and to the full and equal benefit of all
laws and proceedings for the security of persons and property as
is enjoyed by white citizens." 42 U.S.C. § 1981(a). The New York State Human Rights
Law provides that it is an unlawful discriminatory practice "for
any person to aid, abet, incite, compel or coerce the doing of
any of the acts forbidden under this article," including
employment discrimination on the basis of national origin. N.Y.
Exec. Law §§ 296(1)(a), 296(6). The language of the New York City
Human Rights Law is similar. See N.Y.C. Admin. Code § 8-107(6).
In order to make out a § 1981 claim against an individual, a
plaintiff must demonstrate an affirmative link causally
connecting the individual with the discriminatory action. See
Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75
(2d Cir. 2000). A claim of personal liability must be predicated
on the actor's personal involvement. See id. Similarly, the
Second Circuit has held that an individual can only be held
liable under the New York State and City aiding and abetting
provisions if that person actually participated in the conduct
giving rise to the discrimination claim. See Tomka,
66 F.3d at 1317; Sowemino v. D.A.O.R. Security, Inc.,
43 F. Supp. 2d 477, 487 (S.D.N.Y. 1999).
1. Hostile Work Environment
The allegations of Dr. Hutchins' involvement in Dr.
Franchitti's hostile work environment include her: (1)
questioning students about whether they could understand the
plaintiff's accent; (2) commenting that Dr. Franchitti should
speak English while teaching; (3) recommending that the plaintiff
take a communications course; and (4) initiating the Human Resources
investigation. (Pl. Memo. at 9-22). While the comments attributed
to Dr. Hutchins are mild and infrequent, her central role in the
allegedly retaliatory investigation qualifies as actual
participation in the plaintiff's hostile work environment.
Therefore, summary judgment on the hostile work environment claim
against Dr. Hutchins is inappropriate.
2. Discriminatory Discharge and Disparate Treatment
As stated above, Dr. Franchitti's statements made upon
information and belief are not enough to raise a triable issue
with respect to Dr. Hutchins' role in the decision to terminate
his employment. Since the plaintiff presents no evidence that Dr.
Hutchins was personally involved in the termination decision, she
cannot be held liable for claims of discriminatory discharge or
disparate treatment. Moreover, under the New York State and City
Human Rights Laws, liability must first be established as to the
employer before accessorial liability can be imposed upon an
alleged aider and abettor. See DeWitt v. Lieberman,
48 F. Supp. 2d 280, 293 (S.D.N.Y. 1999). Since summary judgement should
be granted with respect to the discriminatory discharge and
disparate treatment claims against Bloomberg, it should also be
granted with respect to the aiding and abetting claims against
Dr. Hutchins admits she was involved in the investigation that led to Dr. Franchitti's termination. (Hutchins Dep. at 92-93).
She disputes, however, that she was motivated by retaliatory
animus. Dr. Franchitti brings this into question by proffering
evidence that Dr. Hutchins was angered by his complaints about
discrimination. (Gilberti Dep. at 25). Since there is a genuine
issue of material fact as to Dr. Hutchins' motivation in
initiating the investigation of Dr. Franchitti, and retaliation
can be found even if some of the reasons for the investigation
were legitimate, summary judgment should be denied. This result
comports with the Second Circuit's admonition that summary
judgment is generally inappropriate where the defendant's state
of mind is at issue.
For the reasons stated above, I recommend that the defendants'
motion for summary judgment be granted with respect to Dr.
Franchitti's claims of discriminatory discharge, disparate
treatment, and retaliation related to his performance review.
Summary judgment should be denied, however, with respect to the
hostile work environment and remaining retaliation claims.
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of
the Federal Rules of Civil Procedure, the parties shall have ten
(10) days to file written objections to this report and
recommendation. Such objections shall be filed with the Clerk of
the Court, with extra copies delivered to the chambers of the
Honorable Lewis A. Kaplan, Room 1310, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York
10007. Failure to file timely objections with preclude appellate
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