The opinion of the court was delivered by: Gershon, United States District Judge
Jaime Chavez brings this action against Iberia Foods Corp. ("Iberia") and Brooklyn Bottling Co. of Milton, N.Y., Inc. ("Brooklyn Bottling") alleging: (1) discrimination and retaliation based on race and ethnicity under 42 U.S.C. § 1981, New York State Human Rights Law §§ 290 et seq. ("NYSHRL"), and New York City Human Rights Law, Administrative Code §§ 8-101 et seq. ("NYCHRL") and (2) discrimination and retaliation based on national origin and age under NYSHRL and NYCHRL. Defendants Iberia and Brooklyn Bottling move for summary judgment pursuant to Federal Rule of Civil Procedure 56 on all of Mr. Chavez's claims.
Unless otherwise indicated, the following facts are undisputed.
Plaintiff Jaime Chavez was born in Lima, Peru in 1960. Mr. Chavez has a Bachelor's Degree in Business Administration, a Masters of Science Degree in Community Economic Development, and has finished three years of post graduate studies in International Marketing. Chavez Dep. 12-13. In 1994, Mr. Chavez began working for Iberia, a company that sells and distributes ethnically-based food products to South American and Central American communities located in, among other areas, the metropolitan New York area. Miller Aff. ¶ 5; Chavez Dep. 19. One year later, in 1995, Mr. Chavez was promoted to the position of Area Sales Manager. Chavez Dep. 20.
In January 2003, PDM Holding Corp. ("PDM") purchased the stock and certain assets of Iberia. Miller Aff. ¶ 1. PDM is wholly owned by Eric Miller, who also owns and is president of several other companies that specialize in the business of distributing ethnically-based food and beverages catering primarily to South American, Central American, and Caribbean communities throughout the metropolitan New York area, Florida, and various other states. Miller Aff. ¶ 2, 3, and 4.
As part of Iberia's sale, PDM retained Mr. Chavez, as well as other employees, to work as Area Sales Managers. When Mr. Chavez applied to be retained by PDM, he asked for a salary of $45,000. Groh Aff. Ex. F. As part of the Iberia purchase agreement, Mr. Chavez claims that PDM agreed to provide the same benefits and bonuses to the employees as they had received before.
Mr. Chavez's direct supervisor both before and immediately after the sale of Iberia was Mr. Estelio "Steve" Cabarcus, who is of Columbian national origin. Chavez Dep. 31, 70; Miller Aff. ¶ 11. Mr. Cabarcus's direct supervisor after Iberia's sale was Mel Feldman. Miller Aff. ¶ 11. In February 2003, Mr. Cabarcus gave notice of his resignation. Miller Aff. ¶ 12; Feldman Dep. 21; Feldman Aff. ¶ 15. When Mr. Chavez learned of Mr. Cabarcus's resignation, Mr. Chavez told Mr. Feldman that he was interested in filling Mr. Cabarcus's position. Chavez Dep. 73-75; Feldman Dep. 105-106.
In March 2003, Mr. Feldman, a self-described white anglo, gave Mr. Cabarcus's old job to Carlos Diaz instead of Mr. Chavez. Feldman Dep. 15, 25-26. Mr. Diaz is Uruguayan by birth and has a high school education. Diaz Dep. 7. Like Mr. Chavez, Mr. Diaz was an Area Sales Manager with Iberia prior to Iberia 's sale in January 2003. Chavez Dep. 107. Mr. Diaz became an area sales manager for Iberia in 1998 and was trained by Mr. Chavez for several weeks when Mr. Diaz first started work. Chavez Dep. 106; Diaz Dep. 61-62.
Mr. Feldman explained in his March 13, 2006 deposition that he chose Mr. Diaz over Mr. Chavez because he believed that Mr. Diaz was more responsive and had a better attitude. However, in an affidavit dated November 15, 2006, the sole reason that Mr. Feldman offered for choosing Mr. Diaz instead of Mr. Chavez was that Mr. Diaz was better suited geographically to supervise the other New York area sales managers. Feldman Aff. ¶ 17. Mr. Diaz lived in Leonia, New Jersey, at the time while Mr. Chavez lived in Hartford, Connecticut. Miller Aff. ¶ 15. As in his complaint, Mr. Chavez states in his affidavit that living in Connecticut never prevented him from performing his job duties in New York. Chavez Aff. ¶ 5.
When Mr. Feldman told Mr. Chavez that he had decided to give the job to Mr. Diaz, Mr. Chavez complained to Mr. Feldman that he felt discriminated against based on age.*fn1 Mr. Chavez was upset that Mr. Diaz, a person whom Mr. Chavez had helped to train, would be promoted ahead of him. During this conversation, Mr. Feldman and Mr. Chavez discussed promoting Mr. Chavez to a position in Connecticut that would be comparable to Mr. Diaz's position in New York.*fn2 Chavez Dep. 79-81. During the first week of April 2003, however, Mr. Miller chose Andre Madero for the position in Connecticut instead of Mr. Chavez.*fn3 Miller Aff. ¶ 19. Mr. Madero is of Colombian national origin and was born in 1966. Madero Dep. 14. Prior to working at Iberia, Mr. Madero worked at a company called MASAS, a distributing company where Mr. Madero had connections to Price Right, Stop & Shop, Shaws, and Expect Discount. Madero Dep. 8.*fn4 Mr. Madero also had five years experience as a district sales manager for Coca Cola in Connecticut. Madero Dep. 11, 16. Mr. Miller claims that he chose Mr. Madero over Mr. Chavez so that Iberia could get access to the accounts that Mr. Madero said he had access to during his previous employment. Miller Aff. ¶ 19.
In April 2003, Mr. Chavez wrote two letters to Mr. Feldman complaining that the area sales managers were not getting the bonuses and benefits that PDM had promised them at the time that PDM had purchased Iberia. Chaiet Aff. Ex. B, D. Neither of these letters mention discrimination, nor do they claim that some area sales managers were receiving benefits and bonuses while other area sales managers were not. Moreover, Mr. Chavez has presented no evidence that any area sales manager--even the sales managers who were promoted instead of him--received bonuses or benefits in 2003.
Mr. Chavez claims that Mr. Feldman retaliated against him in response to his complaint about not getting a promotion and in response to his complaints about bonuses and benefits. According to Mr. Chavez, Mr. Feldman retaliated by unreasonably increasing the scope of Mr. Chavez's employment activities, without an increase in pay, to include sales solicitations, management, and distribution of products in the Bronx and Manhattan. Notably, however, the increase in Mr. Chavez's employment responsibilities began sometime at the end of January or the first two weeks of February, Chavez Dep. 64, 112, well before Mr. Chavez made his first complaints to Mr. Feldman at the end of February. Chavez Dep. 78. Mr. Chavez also claims that Mr. Feldman retaliated by calling him late at night, outside business hours. Mr. Matos, one of Mr. Chavez's co-workers, claims that Mr. Feldman never called him late at night. Matos Aff. ¶ 16. However, Mr. Diaz and Mr. Madero, the two employees who were promoted instead of Mr. Chavez, both testified that Mr. Feldman called them about business late at night and early in the morning. Diaz Dep. 138-39; Madero Dep. 39-40.
Mr. Chavez further claims that Mr. Feldman and some other employees joked about his accent and pronunciation and called him "F----g Peruvian" or "Stupid Peruvian" at least three times in response to his complaints about not being promoted. Chavez Dep. 130-31, 149; Chavez Aff. ¶ 21. Mr. Matos, one of Mr. Chavez's co-workers, also heard these comments and testified ...