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).
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 ...