The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiff Monday Ezeocha ("Plaintiff") brought the present action against Defendant Industrial Threaded Products Corp. ("Defendant") for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the New York State Human Rights Law ("NYSHRL") § 296, claiming he was discriminated against on the basis of his national origin. Defendant now move for summary judgment on the ground that Plaintiff "cannot make out a prima facie case of discrimination" as a matter of law. (Def.'s Mem. at 3; see also Def.'s Reply at 4.) Plaintiff opposes the motion. For the reasons set forth herein, Defendant's motion for summary judgment is GRANTED in part and DENIED in part.
The following summary of facts is drawn from the parties' Local 56.1 statements, and the parties submissions. The facts are undisputed unless otherwise noted. Plaintiff was born in Nigeria, and is in the United States with a permanent visa. Defendant is a corporation involved in the manufacturing of various custom metal products, with its primary place of business in Bay Shore, New York.
Defendant employs approximately twenty employees who perform various functions such as welding and the fabrication of products. Plaintiff was employed by Defendant as a shop helper from November 2000 until his termination on July 6, 2001. A shop helper performs manual labor tasks, and Plaintiff's duties entailed painting, cleaning, and assisting other employees as necessary.
In the course of his employment, Plaintiff alleges that he was the frequent victim of hostile behavior by his co-workers. He alleges that co-workers repeatedly joked that they would have him deported or that they would call the police on him and make phony drug charges. These co-workers were "predominantly" of "Puerto Rican descent." (See Pl.'s 56.1 Counterstatement ¶ 12.) Plaintiff alleges that Angel Liciaga, a foreman, and Luis Liciaga, his son and a welder, were the worst of his oppressors.
Plaintiff complained a number of times about mistreatment by other employees. Plaintiff asserts that on four isolated occasions, he complained to the shop manager, Mosser (see Dep. of Monday Ezeocha, dated Feb. 15, 2005 ("Pl.'s Dep.") at 30), regarding the mistreatment. Mosser testified that Plaintiff had complained "two or three times . . . [t]hat people were picking on him." (See Dep. of Donald "Gus" Mosser, dated Feb. 7, 2005 ("Mosser Dep."), at 22.) Mosser testified that he never took any affirmative action to prevent other employees from picking on Plaintiff: "I said that you have to try and do your job and I will talk to people. People are people. You're not going to stop them." (Id. at 23.) Nevertheless, Mosser did not recount or recall the incidences with any particularity. Consequently, Plaintiff's account is virtually undisputed.
The first incident involved Luis Liciaga telling Plaintiff to "go back to [your] F country," and, on the same day, Luis throwing a cigarette in front of Plaintiff as Plaintiff walked by. (See Pl.'s Dep. at 31-32.) At that point, Luis "brought out the white substance. He said it was marijuana. He said if I should live in this country I should hold this, he would call the cops and the next day I would be in my country." (Id. at 32.) The second incident involved Luis pulling the plug on the machine that Plaintiff was using and then "cussing" Plaintiff in Spanish. (See id. at 36.) Plaintiff is uncertain whether Luis actually swore at him, but he assumed that he was swearing because "I don't think he would use a language I don't understand if he was saying something good about me." (Id.).
The third incident involved welders being told to hide from "inspectors." According to Plaintiff, "there was a day some inspectors came to the shop--I don't know what they came to inspect--and [Mosser] asking the workers to hide in the back." (Id. at 39.) Angel Liciaga approached Plaintiff and told him "to hide like all the welders" or else he would be fired. (Id.) Plaintiff perceived hostility in Angel's tone and demeanor. It is undisputed, however, that Angel Liciaga, despite his statements, had no authority to fire Plaintiff. (See Mosser Dep. at 25.)
The fourth incident occurred when Angel told Plaintiff to go outside and paint in the cold. Plaintiff complained to his supervisors, who told him to ignore Angel and to do some other task until the weather was better. (Pl.'s Dep. at 42-45.) Nothing further happened at that time.
The incident that stands at the center of this suit occurred on July 6, 2001. Unfortunately, the parties had great difficulty providing a straightforward account of the incident, undisputed or not. As best the Court can surmise, Plaintiff was outside, painting. Apparently, Plaintiff observed Luis Liciaga and Angel Liciaga writing on a piece of pipe that Plaintiff was using, "You don't know what the F you are doing. Go back to your F country." (Id. at 46.) Plaintiff testified, however, that he "wasn't bothered" by the note. (Id. at 47.)
Sometime later, however, Plaintiff alleges that Luis "came out and started telling me that I'm doing nothing, I'm too slow, that I"m just playing, that I should look for something to do." (Id.) Plaintiff began to argue with Luis. Plaintiff alleges that, at that point, Angel came to his son's defense. It is unclear where this confrontation took place. Plaintiff first alleges that Luis "came out" (id.), but just a moment later indicates that Angel "push[ed] me out of the shop" (id. at 48.) Plaintiff later stated that it took place "[j]ust inside, but almost at the gate." (Id. at 57.) Plaintiff does not explain how the incident ended, but indicates that he immediately went to speak with Mosser. Mosser told him to go back to work and try to avoid further conflict. Mosser specifically directed Plaintiff not to enter the metal shop area. At this point, Plaintiff and Defendant's accounts diverge.
Plaintiff acknowledges that Mosser "told me to stay outside and work," but admitted that he reentered the shop "to take the material I work with." (Id. at 50.) Thus, he was working outside, but re-entered the workshop to obtain more paint. When he did so, another shouting match erupted between Plaintiff and Angel Liciaga, during which Plaintiff said that he would report Angel to the union. (Id. at 55.) At that moment, Plaintiff contends, he was approached and punched by Ivan Reyes, a welder who had been with the company since October 2000 (see Decl. of Ivan Reyes, dated July 29, 2005, ¶ 1), who was apparently upset by Plaintiff's threat to Angel. "[H]e decided to come and punch me. I had nothing to do with him that day." (Pl.'s Dep. at 62.) After Reyes allegedly threw a punch, striking Plaintiff on the chin, Plaintiff "rushed into him and he fell down." (Id. at 64.) According to Plaintiff, Reyes immediately got back up. (Id. at 65.) "That was when Gus [Mosser] came out."
Defendants' account is slightly different. After the first argument, Mosser told Plaintiff to stay out of the shop. Mosser contends that a short while later, he came out of his office to see Plaintiff in an argument in the shop area: "All I know is that he was told to stay outside and he was back inside. The argument wasn't outside. The argument was inside. He was supposed to be outside." (Mosser Dep. at 31.)
Defendants contend that Mosser "tried to talk Plaintiff into leaving the metal shop area," but that Plaintiff "pushed Mr. Mossler [sic] away and ran towards another employee and attacked the employee with a rage." (Def.'s 56.1 Statement ¶¶ 30-31; see also Mosser Dep. at 32.) It is unclear from Defendants' account who "the employee" was. Nevertheless, Defendants assert that Plaintiff attempted to attack the "shop foreman" (Def.'s 56.1 Statement ¶ 32) -- which the Court assumes to be Angel -- but that Reyes intervened. (See Mosser Dep. at 32 ("I think he charged Angel . . . Ivan jumped in between them.").) Reyes declared that Plaintiff "started threatening me, ...