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. ("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 Kevin Pratt ("Plaintiff" or "Pratt") asserts the following claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., Section 1981, 42 U.S.C. § 1981, and the New York Executive Law § 296: (1) termination of his employment as a result of race discrimination; (2) a hostile work environment based on his race; (2) hostile work environment based sex; and (3) retaliation for opposing Chalom's discriminatory practices and harassment against himself and his co-worker Josephine Caronia. Presently before the Court is Defendants' motion for summary judgment. 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. Pratt, an African American male, was employed by Chevrolet Inc. and Hyundai Inc. as a car salesperson from approximately June 2004 to May 2005 when he was terminated. Chalom owns 100% of the stock of Chevrolet Inc. and Hyundai Inc. and was Pratt's supervisor. Chalom has the final decision-making authority for the Dealership Defendants.
Josephine Caronia was also employed by Chevrolet Inc. and held the position of Controller. Other co-workers of Plaintiff and Caronia were Frank Ventimiglia ("Ventimiglia"), Andrew Levy ("Levy") and Paul Weiss ("Weiss"). Caronia, Weiss, Ventimiglia, and Levy all commenced actions against Defendants alleging discrimination. It is alleged, among other things, that Chalom was given to constant outbursts of unlawful and inappropriate epithets against different racial and ethnic groups and sexually harassed Caronia.
According to Pratt, Chalom directed racial comments and racial slurs at Pratt, including the term nigger several times, as well using spic to refer to Hispanics . The following deposition testimony provides one example:
I [Pratt] came and said [to Chalom] listen, Tom Malis just spat in my direction while I was working with customers and he called me a nigger. [Chalom responded] you are a nigger, he is a sand nigger, he pointed out somebody that was Arab and he call them a sand nigger. He'd just start talking from right there, just like that, whatever he felt like saying he said it. I even had the extent to where a customer was like did he say what I thought he said, who was that, or if Tom Malis would call me a nigger they would say who is that guy right there. (Pratt Dep. at 142.) Other employees at the dealerships also heard Chalom use the word nigger; in fact, Chalom admitted using the word nigger once in the dealership. (See, e.g., Caronia Dep. at 368; Chalom Dep. at 171.) Pratt further testified about another verbal exchange between himself and Chalom about co-worker Tom Malis:
I'd say Charlie, listen, Tom keeps calling me a nigger, he keeps spitting in my direction, he keeps challenging me to a fist fight and telling me he was going to break my legs, he's going to do this and he's going to do that. Then [Chalom would] go over there and tell Tom don't let him beat you, don't let that nigger win, you let him win every month, you let him do this, you let him do that. (Pratt Dep. at 146.) Pratt also testified as to the following incident:
Harry and Joey thought it was funny one day to tell me to stop complaining and I got what I deserve already or what I should be entitled to. I said what is that, they said 40 acres and a mule. Joey specifically said it himself. He thought it was funny. I went to the desk and complained and when I got back from the desk Joey said it again in front of several other employees he said it. . . . . I complained to the manager, I told Mr. Chalom his son just told me that I got what I was entitled to, 40 acres and a mule. [Chalom said] nothing. (Id. at 152-53.)
According to Pratt, in response to one of his complaints about a racial slur used by a fellow salesman, the following occurred: "he [Chalom] told me that, you know you complain all the time, you should be glad to be working. I said he called me a nigger, he said you are a nigger, he says you're not African American, you call yourself African American, you're not, your [sic] black . . . ." (Id. at 150.)
Regarding his being fired, Pratt avers that he was called into a meeting with Chalom and asked by Chalom:
"to prove my loyalty" to him by signing an affidavit saying that Ms. Caronia and Frank Ventimiglia had been having an affair, and also making accusations against Frank of stealing. I had no knowledge of such things and I completely refused to sign this affidavit. Chalom told me that because I would not prove my "loyalty" to him by signing the affidavit, I was fired. I couldn't believe it, but it was true. . . . I do not believe the actual reason for my firing was because of loyalty. I believe that Chalom thought he could take advantage of me because of my race, and that he fired me at least in part because I am African American and he considered me to be inferior to others. He said himself several times when I complained about the racial slurs at Hustedt that I should be glad to be working there. . . . I also believe that Chalom fired me because he did not like the idea that I had protested his accusations against Ms. Caronia and Frank Ventimiglia and that I had complained so frequently about the racial remarks at Hustedt. (Pratt Aff. at ¶¶29-31.)
With regard to his claim of a hostile work environment based on sex, he states:
My desk was situated right near the stairs that led down to the general office area where Ms. Caronia worked, and near one of Chalom's offices. . . . On a frequent basis, I heard Chalom yelling at Ms. Caronia that she was a bitch, an ungrateful whore, that she was "cheating on him," that she was having sex with various men (including Frank Ventimiglia) and similar insults. Ms Caronia would deny these accusations and would sometimes end up in tears. I heard these exchanges because they occurred a few feet away from my desk . . . . On one occasion, Chalom had Ms. Caronia cornered against the office wall while he screamed epithets at her. Ms. Caronia was denying Chalom's accusations and crying. Chalom was not a reasonable man and I knew by that point that directly interfering in this incident would probably result in my being fired. But I objected to the manner that Chalom was treating Ms. Caronia, and so I approached them, looked directly at Chalom to let him know I was there, and offered to clean snow off Ms. Caronia's car. I considered this to be an unspoken form of communication to Chalom to stop what he was doing. . . . But as long as Ms. Caronia worked at the dealership, Chalom never stopped his inappropriate behavior towards her or his screaming at her. After Caronia left Hustedt, Chalom never stopped talking about her. . . . Although I told Chalom that I did not want to be in the middle of the situation, Chalom called me into his office nearly every day and asked me to contact Frank or Josephine and make them offers to return . . . . Chalom went on and on about how he wanted Caronia back at the dealership and in his life. I had to sit there and listen to Chalom because he was my boss. . . . At the same time Chalom said he wanted Caronia back, he also continued to call her awful names, like whore and bitch. I considered these terms extremely offensive and I urged Chalom to stop calling her these names over and over again during our conversations. (Id. at ¶¶17-27.)
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 ...