The opinion of the court was delivered by: Hurley, Senior District Judge
This action is one of several pending before this Court in which a former employee of Defendants Hustedt Chevrolet, Hustedt Chevrolet Inc. ("Chevrolet Inc."), Hustedt Hyundai, and/or Hustedt Hyundai, Inc. (collectively "Dealership Defendants") is seeking redress for the alleged discriminatory and retaliatory practices of Defendant Charles Chalom ("Chalom"),*fn1 owner of Dealership Defendants, and hostile work environment created by him. In the instant case, Plaintiff Frank Ventimiglia ("Plaintiff" or "Ventimiglia") asserts the following claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the New York Executive Law § 296: (1) hostile work environment based on his national origin, Italian; (2) hostile work environment based sex; (3) hostile work environment based on race; and (4) retaliation for opposing Chalom's sexual harassment of Caronia. In addition, Ventimiglia asserts common law tort claims, including one for defamation. Presently before the Court is Defendants' motion for summary judgment on the Title VII claims, the New York State Executive Law claims, and the defamation claim. For the reasons set forth below, the motion is granted in part and denied in part.
Dealership Defendants are engaged in the sale and lease of cars and trucks. Ventimiglia was employed by Chevrolet Inc. as the general sales manager from approximately May 2004 to October 4, 2004. His average earnings per month were approximately $30,000.00. Chalom owns 100% of the stock of Chevrolet Inc.*fn2 and was Ventimiglia's supervisor. Chalom has the final decision-making authority for the Dealership Defendants.
Josephine Caronia ("Caronia") was also employed by Chevrolet Inc. and held the position of Controller. Other co-workers of Plaintiff and Caronia were Kevin Pratt ("Pratt"), Andrew Levy ("Levy") and Paul Weiss ("Weiss"). Caronia, Weiss, Pratt and Levy all commenced actions against Defendants alleging discrimination.*fn3 It is alleged that "Chalom was given to constant outbursts of unlawful and inappropriate epithets against different racial and ethnic groups." (Pl.'s Mem. in Opp. at 6.)
Ventimiglia claims he was subject to a hostile work environment as a result of his Italian heritage. At his deposition, he testified that Chalom would call him "guinea" and "goomba," and he heard numerous Italian references and slurs that Chalom directed at Caronia. One incident recounted by Ventimiglia occurred when in front of the office staff Chalom grabbed his arm, threatened to "kick his f---ing ass" and said that he was the only "guinea" Chalom had ever met with no honor. At her deposition, Caronia testified to an incident in Chalom's office when Chalom grabbed Ventimiglia by the throat and said that Plaintiff was the "first guinea he ever met with no balls." The parties dispute whether these are two different instances or different versions of the same instance.
Ventimiglia also claims he was subjected to a hostile work environment based on sex. According to Plaintiff, Chalom was obsessed with Caronia and continually demanded she engage in a relationship with him. Caronia refused these requests and when she did so, Chalom did not react well. For example, he accused her of having sex with other men at the dealership including Ventimiglia. He would accuse and "interrogate" Ventimiglia about having a sexual relationship with Caronia. (Ventimiglia Aff. at ¶9.) Despite Ventimiglia's denials, Chalom's accusations did not stop. According to Ventimiglia, he was "placed in the middle of [Chalom's] harassment of Caronia by [Chalom's] constantly accusing [Ventimiglia] of having an affair with her and forcing [him] to defend [him]self against these ridiculous accusations. (Id. at ¶ 19.) Ventimiglia also witnessed Chalom calling Caronia offensive names like whore, making lecherous remarks about her body, and actually grabbing her and touching various areas of her body while she struggled to get free. (Id. at ¶¶11-12.) According to Ventimiglia, Chalom's remarks were not limited to Caronia; he made lecherous and inappropriate remarks about other female employees, such as talking about their "tits," as well as Plaintiff's wife and women who came into the dealership. (Id. at ¶¶18, 20.)
Ventimiglia avers that he told "Chalom that his remarks, accusations and behaviors were offensive" but Chalom said "he could do whatever he wanted to do." (Id. at ¶21.) He testified that in 2004 he spoke to Chalom about his treatment of Caronia more than a dozen times. (Ventimiglia Dep. at 74.) In addition, he told Chalom not to make remarks about other women, both employees and customers.
Defendants dispute that Ventimiglia "opposed" any discrimination, pointing to Ventimiglia's deposition testimony concerning a sexual harassment training seminar held by the Dealership sometime in 2004. Ventimiglia testified that he questioned Chalom about the seminar because he had concerns about the training and the damaging and incriminating information about Chalom and the dealership that was being discussed at the seminar. Ventimiglia further testified that at the seminar Caronia was asking questions that he thought were putting Chalom in a very bad light and asked Chalom "Do we need to continue this training? She's burning you in these meeting in front of everybody that works for us." (Ventimiglia Dep. at 132.) According to Ventimiglia's deposition testimony he was "concerned with what was happening and [he] was in a room full of employees and [he] was considered to be a supervisor and she [Caronia] was just airing stuff that was more incriminating than helping and [he] couldn't see the logic. From the standpoint of protecting the company it was terrible what was happening in the room, and there was way too may witnesses for the conversation to be taking place, and I was directed to continue." (Id. at 134.)
According to Chalom, in October 2004 he decided to place one Patrick Maguire in the position of co-general sales manager with Plaintiff to address a deficiency in Plaintiff's performance. Chalom asserts that Ventimiglia would as a matter of course approve sale prices that failed to include lucrative "after sale" items, like a car alarm or an extended warranty, leaving it to the finance department to then "pump" the customer on the established price. Ventimiglia denies any deficiencies in his performance and asserts that the dealership's finances improved as a result of his efforts. Ventimiglia claims Chalom first fired him and then later gave him the option of coming back at one-third his prior compensation. Ventimiglia asserts that his position was taken away as a result of his constantly imploring Chalom to stop harassing Caronia. (Ventimiglia Dep. at 236.)
Scant information is provided as to Ventimiglia's claim of hostile work environment due to race. Ventimiglia asserts that "Chalom made insulting references to African Americans. I had hired Kevin Pratt, an African American salesman, and Chalom asked me who the schvartze was. My understanding of that word is that it is derogatory reference . . . ." (Ventimiglia Aff. at ¶ 28.) Ventimiglia also asserts that Chalom regarded him as associated with Pratt, an African American: "Chalom referred to the fact that Ventimiglia hired Pratt, and accused Pratt of loyalty to Ventimiglia. Chalom stated of Pratt, 'I know he's going to lie on behalf of Ventimiglia.
Ventimiglia got his number.' . . . Chalom further testified that Pratt was 'intimidated' between [Chalom] and Ventimiglia, and further testified that he [Pratt] should stop being a friend to Ventimiglia." (Pl.'s Response to Def.s' 56.1 Statement at ¶ 83 (brackets in original) (citing Chalom Dep. at 102-03, 213).)
Additional factual information shall be discussed to the extent relevant to the issues at hand.
I. Summary Judgment Standard
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates both the absence of a genuine issue of material fact and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. See Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing Fed. R. Civ. P. 56(c)).
To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. See Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence," Del. & Hudson Ry. Co. v. Cons. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt as to the material facts," Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), and cannot rely on the allegations in his or her pleadings, conclusory statements, or on "mere assertions that affidavits supporting the motion are not credible." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citations omitted). Affidavits submitted in opposition to summary judgment must be based on personal knowledge, must "set forth such facts as would be admissible in evidence," and must show that the affiant is "competent to testify to the matters stated therein." Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004) (citing Fed. R. Civ. P. 56(e)). "Rule 56(e)'s requirement that the affiant have personal knowledge and be competent to testify to the matters asserted in the affidavit also means that an affidavit's hearsay assertions that would not be admissible at trial if testified to by the affiant is insufficient to create a genuine issue for trial." Patterson, 375 F.3d at 219 (citing Sarno v. Douglas Elliman-Gibbons & Ives, Inc.,183 F.3d 155, 160 (2d Cir. 1999)).
When determining whether a genuinely disputed factual issue exists, "a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability," or "the substantive evidentiary standards that apply to the case." Anderson, 477 U.S. at 254-55. A district court considering a summary judgment motion must also be "mindful of the underlying standards and burdens of proof," Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252), because the evidentiary burdens that the respective parties will bear at trial guide the district court in its determination of a summary judgment motion. See Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). Where the non-moving party will bear the ultimate burden of proof on an issue at trial, the moving party's burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an essential element of the non-movant's claim. See id. at 210-11. Where a movant without the underlying burden of proof offers evidence that the non-movant has failed to establish her claim, the burden shifts to the non-movant to offer "'persuasive evidence that [her] claim is not 'implausible.'" Brady, 863 F.2d at 211 (citing Matsushita, 475 U.S. at 587).
In deciding a summary judgment motion, a court must resolve all factual ambiguities and draw all reasonable inferences in favor of the non-moving party. See Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). That being said, it is well-established that a non-movant cannot defeat summary judgment with nothing more than "unsupported assertions," Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995), or the allegations in its pleadings. See Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996); see also Fed. R. Civ. P. 56(e). More particularly, although "summary judgment should be used sparingly" in cases where the material fact at issue is the defendant's intent or motivation, the plaintiff must nevertheless offer some "concrete evidence" in his favor, and is "not entitled to a trial simply because the determinative issue focuses upon the defendant's state of mind." Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988). "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." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).
II. Hostile Work Environment
"Title VII creates a cause of action based on the presence of a hostile working environment when the workplace is 'permeated with discriminatory intimidation, ridicule, and insult that is sufficiently pervasive to alter the conditions of the victim's employment. . . .'" Brennan v. Metro. Opera Ass'n, 192 F.3d 310, 318 (2d Cir. 1999) (quoting Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993)).
To establish a hostile work environment claim, a plaintiff must prove " that the harassment was 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' and  that a specific basis exists for imputing the objectionable conduct to the employer." Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). The plaintiff must "show that the complained of conduct: (1) 'is objectively severe or pervasive - that is, creates an environment that a reasonable person would find hostile or abusive'; (2) creates an environment 'that the plaintiff subjectively perceives as hostile or abusive'; and (3) 'creates such an environment because of the plaintiff's sex [or color or race or religion or national origin].'" Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (ellipses in original omitted) (quoting Gregory v. Daly, 243 F.3d 687, 691-92 (2d Cir. 2001)). In other words, the plaintiff "must show that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of [his/]her employment were thereby altered." Alfano, 294 F.3d at 373 (internal citations omitted).
"This test has objective and subjective elements: the misconduct shown must be 'severe or pervasive enough to create an objectively hostile or abusive work environment,' and the victim must also subjectively perceive that environment to be abusive." Id. at 374 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). In analyzing a plaintiff's case, "courts examine the case-specific circumstances in their totality and evaluate the severity, frequency, and degree of the abuse." Id. (citing Harris, 510 U.S. at 23). Relevant factors include "'the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Id. (quoting Harris, 510 U.S. at 23). "But it is well settled in this Circuit that even a single act can meet the threshold if, by itself, it can and does work a transformation of the plaintiff's workplace." Alfano, 294 F.3d at 374 (citing Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000) and Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 437 (2d Cir. 1999)).
"Because the crucial inquiry focuses on the nature of the workplace environment as a whole, a plaintiff who [him]self experiences discriminatory harassment need not be the target of other instances of hostility in order for those incidents to support [his] claim." Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000). "Nor must offensive remarks or behavior be directed at individuals who are members of the plaintiff's own protected class. Remarks targeting members of other minorities, for example, may contribute to the overall hostility of the working environment for a minority employee." Id.
Finally, it is axiomatic that in order to establish a hostile work environment under Title VII, a plaintiff must demonstrate that the conduct occurred because of his membership in a protected class. In other words, an environment which is equally harsh for both men and women or for both young and old does not constitute a hostile working environment under the civil rights statutes." See Brennan, 192 F.3d at 318.*fn4 See also Alfano, 294 F.3d at 374 ("in order to establish a sex-based hostile work environment under Title VII, a plaintiff must demonstrate that the conduct occurred because of her sex").
Ventimiglia has raised three hostile work environment claims. They are (1) hostile work environment based on his national origin, to wit: Italian; (2) a hostile work environment based on sex; and (3) a hostile work environment based on race. Defendants' have moved to dismiss these claims arguing (1) Ventimiglia has failed to adduce facts to support his claim of a hostile work environment based on his national origin, and (2) Ventimiglia does not have standing to pursue hostile work environment claims based on discrimination against others who belong to a protected class of which the he is not a member. The Court shall first address Plaintiff's hostile work environment claim based on his own national origin.
B. Plaintiff's National Origin Discrimination Claim
Defendants' motion for summary judgment on Plaintiff's hostile work environment claim based on his own national origin is premised on three arguments. First, Plaintiff was not subjected to severe and pervasive anti-Italian comments. Second, Plaintiff's terms and conditions were not affected by any of the alleged comments. Third, Plaintiff cannot support his claim of a hostile work environment based on his national origin by reference ...