The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiff Robert Raia ("plaintiff" or "Raia") commenced suit against his former employer, Illinois Tool Works, Inc., d/b/a Hobart Corporation ("defendant" or "Hobart"), under Title VII of the Civil Rights Act, 42 U.S.C. Section 2000e, and the New York State Human Rights Law ("NYSHRL"), N.Y. Executive Law Section 290 et seq., claiming that he was retaliated against for opposing alleged discriminatory actions taken by defendant against a former co-worker of plaintiff's.
The case was tried non-jury before me over the course of six days with the testimony being completed on August 19, 2009. At the close of plaintiff's case-in-chief, and again at the close of all the evidence, defendant moved to dismiss plaintiff's amended complaint pursuant to Federal Rule of Civil Procedure 52(c) ("Rule 52(c)"). The Court reserved decision on those applications, ordering the parties to file proposed findings of fact and conclusions of law which was done via their respective submissions in October of 2009.
The purpose of this decision is to provide the Court's findings of fact and conclusions of law pursuant to Rule 52(c).*fn1
Before doing so, however, a brief overview of the applicable law shall be provided.
LAW PERTAINING TO CLAIMS OF UNLAWFUL RETALIATION IN VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT AND THE NEW YORK STATE HUMAN RIGHTS LAW Title VII provides that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). The New York State Human Rights Law also prohibits retaliation for opposition to discriminatory practices. N.Y. Exec. Law § 290 et seq. The standards for liability under the NYSHRL are essentially the same as those under Title VII. See Ferraro v. Kellwood Co., 440 F.3d 96, 99 (2d Cir. 2006).
Typically in a non-jury Title VII employment discrimination case predicated solely on circumstantial evidence, the Court would employ the burden shifting analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-04 (1973). The purpose of the McDonnell Douglas framework is to require the employer in the absence of direct evidence of discrimination to join the fray by proffering non-discriminatory reasons for its actions if the employee first makes a prima facie showing of entitlement to relief. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56 (1981). Here, the defendant employer came forward at trial and explained its actions with respect to plaintiff's contentions, not only through cross-examination but also by calling to the stand a number of the individuals referenced in plaintiff's testimony. As a result, the Court will bypass the question of whether plaintiff established a prima facie case, and proceed directly to the ultimate issue, viz., whether he has proven the elements of his retaliation claim by a preponderance of the credible evidence. To do so, "plaintiff must show that: (1) he engaged in protected activity; (2) defendant was aware of that activity; (3) he suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse action." (Pl.'s Post Trial Mem. and Proposed Conclusions of Law at 2 (citations deleted).)
An "adverse employment action" for purposes of the third element "is not limited to discriminatory actions that affect the terms and conditions of employment." Thompson v. N. Am. Stainless, L.P., ___ U.S. ___, 131 S. Ct. 863, 868 (2011)(internal quotation marks and citation deleted). Rather, Title VII's antiretaliation provision prohibits any employer action that "'well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Kaytor v. Elec. Boat Corp., 609 F.3d 537, 555 (2d Cir. 2010) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 1405 (2006)). And finally as to the applicable law, a failure to prove any one or more of the four elements is fatal to plaintiff's claim.
PARTIES' POSITIONS A. Plaintiff's Position
Plaintiff contends that "[d]efendant retaliated against him for opposing alleged discriminatory actions taken by Hobart against its former employee Anthony Garnier" ("Garnier"), a co- worker of plaintiff of Haitian descent. (Pl.'s Proposed Findings of Fact at 2.) Such retaliation, plaintiff urges, took many forms, including (1) receiving negative performance reviews and unwarranted reprimands; (2) being given a personal development program ("PDP") on January 5, 2002 under which, absent improvement, he could have been discharged; (3) being the subject of a not-so-veiled threat of grievous bodily harm uttered by Glen Smyth ("Smyth"), the service advisor at defendant's Commack branch where plaintiff worked, and by Paul Todoro ("Todoro"), plaintiff's immediate supervisor at that location, immediately after plaintiff was given the PDP on January 5, 2002; (4) defendant failing to provide plaintiff with a performance review or a wage increase for two years; (5) defendant's failure to promptly repair a broken lock on the van door of plaintiff's service van; (6) defendant continuously refusing to provide plaintiff with a new ladder beginning in April 2003 which ultimately led to plaintiff being injured on December 12, 2003, while performing a service call at the Macaroni Grill, and (5) trashing his service van while plaintiff was on a medical leave of absence.
Plaintiff maintains that the subject acts of retaliation were primarily visited upon him by his immediate supervisor, Todoro.
Defendant maintains that plaintiff has failed to establish a prima facie case, no less to discharge his ultimate burden of proving his retaliation claim against Hobart by a fair preponderance of the credible evidence in that, inter alia, (1) "until April 2004, he did not properly put [defendant] on notice that he was engaging in a protected activity," (2) "he did not show that he suffered an adverse employment action," and (3) "he did not establish a link between his complaints and the legitimate actions taken by [defendant]." (See Def.'s Proposed Findings of Fact and Conclusions of Law at 31.)
Having set forth the elements that plaintiff must prove to prevail on his retaliation claim and the positions of the parties, the next subject to be addressed will be the Court's factual findings. By way of a preliminary comment, those findings will focus on the third and fourth elements of plaintiff's cause of action, those being whether plaintiff has established that he suffered one or more adverse employment actions and the causal connection between that action or actions and a protected activity. As to those elements, markedly divergent proof has been presented by the respective parties as to what transpired, thus requiring the Court to make a series of pivotal credibility determinations. Having done so, I find that some of the material claims made by plaintiff - such as the purported threat made by Smyth and Todoro on January 5, 2002 -are not credible. Certain other of his complaints - such as the claimed condition of his service van upon his return from medical leave - while perhaps troubling to plaintiff, do not meet the objective standard necessary to equate the incidents with actionable retaliation by Hobart. These deficiencies in plaintiff's proof, particularly with respect to his credibility, taint the remainder of his proof to the extent the Court concludes, as explained infra, that he has not, simply put, proven his case.
The Court's Findings of Fact are as follows:
Defendant sells and services commercial food equipment used in such facilities as schools, supermarkets and grocery stores (Tr. 472:21-473:9), with its corporate headquarters located in Troy, Ohio. (Tr. 481:21-22.) It employs service technicians to repair Hobart equipment, usually at customer's premises. (Tr. 473:12-20.)
Plaintiff began working for Hobart at its regional office in Commack, New York in November 1989 (Tr. 75:18-19), and continued in their employ until he resigned in April, 2005 after accepting a job at Cleanse Tech apparently a few days before. (Tr. 333:6-334:5.) From 1995 to 2000, plaintiff reported to Jim Psarudakis ("Psarudakis"), who was then the branch manager.
Performance Evaluations After Todoro
Became Plaintiff's Supervisor; Plaintiff Being Placed on PDP, and the Purported January 2002 Threat by Todoro and Smyth
As of May 1, 2000 Todoro replaced Psarudakis as branch manager of the Commack office.
Todoro's first performance evaluation of plaintiff is dated November 21, 2000. (Def.'s Ex. F.) Therein, plaintiff's MAJOR STRENGTHS are reported to be
Bob has been a dependable technician. In the first half of 2000, Bob helped out when man power (sic) was very low. When present health problems are resolved, (Bob expects to be back to normal the first of the year), I'm sure Bob will continue to be the help he has been in the past. I sincerely Thank You Bob, for all the good that you do, It is much appreciated. (Id.)
Plaintiff's DEVELOPMENT NEEDS were identified thusly: Bob needs to improve the execution of his technical skills. I do believe that this will positively effect many aspects of his job. Most notably, calls per day, call back ratio, and first call completion. I do believe that Bob's potential is above his present performance, and with focused intent, he can achieve that potential.
I also feel that if Bob would take the high road when it comes to his relationship with dispatch, he would see improved results in that area. (Id.)
A juxtapositioning of Todoro's first performance evaluation of plaintiff done on November 21, 2000 with Psarudakis's last evaluation (Pl.'s Ex. 39) indicates that Todoro viewed plaintiff's performance less favorably than his predecessor. However, the source of that disparity is independent of plaintiff engaging in a protected activity given that his complaints about the perceived improper treatment of Granier did not occur until May of 2001, i.e. six months later. (See Pl.'s Proposed Findings of Fact, under the caption "Plaintiff Engaged In Protected Activity" at 3-5.)*fn2 Which is to say, plaintiff's statement that "this criticism [contained in the November 21, 2001 performance evaluation] was in retaliation for Plaintiff's support of Granier" is erroneous. (See Pl.'s Proposed Findings of Fact at 6.)
Plaintiff also places considerable stock in pursuing his retaliation claim upon a document entitled "EMPLOYEE RIGHT OF REVIEW LETTER." (Pl.'s Ex. 15.) Via that letter, plaintiff was placed on a "PERSONAL DEVELOPMENT PROGRAM" under which his performance would be monitored every two weeks for a period of two months. Absent improvement in the areas designated, plaintiff faced the prospect of "disciplinary action up to and including discharge." (Id.)
Although the EMPLOYEE RIGHT TO REVIEW LETTER states that a copy of plaintiff's "Performance Appraisal and Personal Development Program" is attached thereto, Exhibit 15 is devoid of attachments. Plaintiff testified that Todoro gave him the PDP in that condition. (Tr. 366:18-367:4.) Smyth who was also present is reported to have said that plaintiff's "call per day" and "callback per day" were "greatly below standards" for a "Tech VI." (Tr. 367:5-11.) Todoro supposedly said nothing during the meeting beyond directing plaintiff to sign the document. That direction was met by plaintiff's refusal to do so, coupled with the comment that he "would like to contact [his] attorney before [he] signed anything because this is [his] livelihood." (Tr. 367:16-19.)
Todoro testified that the EMPLOYEE RIGHT TO REVIEW LETTER was given to plaintiff with the referenced attachments. (Tr. 505:3-7 (Def.'s J referred to in this transcript excerpt corresponds to Pl.'s Ex. 15).) Todoro also testified that he and Smyth explained in detail to plaintiff why he was being placed on PDP, with the goal of the process to assist him in addressing his weaknesses. (Tr. 720:25-722:22.) Plaintiff was non-receptive, and visibly upset by their presentation. (Id.)
The PDP meeting ended with plaintiff going "to [his] truck" to make a "service call." (Tr. at 179:22-24.) "Glenn and Paul followed [him] out ...