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Malcolm Hayes v. Cablevision Systems New York City

March 30, 2012


The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.


Plaintiff Malcolm Hayes ("plaintiff" or "Hayes") filed this action against Cablevision Systems New York City Corporation ("defendant" or "Cablevision"), for discrimination and retaliation pursuant to 42 U.S.C. § 1981. Plaintiff claims that defendant terminated his employment because he is African American, and because he complained about discriminatory treatment. Presently before the Court is defendant's motion for summary judgment pursuant to Fed. R. Civ. P. 56(c). For the reasons set forth below, defendant's motion is GRANTED.


Plaintiff, who self-identifies as African American, began employment with Cablevision as a technician in 1995, and in 2005 was promoted to the position of Field Service Supervisor. (Def. Rule 56.1 Statement (Doc. No. 82) ¶¶ 3, 5.) In January of 2006, plaintiff received his first annual evaluation as a supervisor, in which his performance was rated as satisfactory. (Id. ¶¶ 18-19.) In September 2006, Robert Weismann ("Weismann"), a Cablevision "Area Operations Manager" ("AOM") and plaintiff's immediate supervisor at the time, indicated in an email to all Field Service Supervisors that plaintiff had not completed his performance reviews of the subordinate technicians who reported to plaintiff. Also in September, plaintiff was disciplined for an altercation with a subordinate, Alremi Walcott, during which plaintiff told Walcott "I'm sick of you f***ing me around." (Id. ¶¶ 21, 27-31.) In December 2006, Weismann prepared plaintiff's annual evaluation. (Id. ¶¶ 35-36, 42.)

Plaintiff received unsatisfactory scores in this evaluation. Weismann gave Hayes a score of "2" ("Partially Achieved Expected Performance") in three of the nine categories in the 2006 evaluation. (Weismann Decl. (Doc. No. 84) ¶ 20, Ex. C.) Under the category "Plans Effectively," Weismann stated that plaintiff "[fell] short in his planning to ensure reviews are completed on time" and "continued to miss review dates throughout the year." (Id. ¶ 22, Ex. C.) Under the category "Makes Results Happen," Weismann stated that plaintiff's "results fail to meet expectation. His record in completing monthly task assignments . . . was poor" and that despite being advised of the need for improvement, plaintiff's "performance only improved marginally." (Id. ¶ 23, Ex. C.) Under the category "Supports Company Values and Policies," Weismann stated that plaintiff "enforces attendance adherence with his technicians [and] is known to be trustworthy and reliable," but cited plaintiff's altercation with Walcott and stated that plaintiff "does need to improve when he is involved with a confrontational situation." (Id. ¶ 24, Ex. C.) Hayes' overall rating was 2.67 out of 5, which was below Cablevision's standard of 3. (Id. ¶¶ 25, 27.)

As a result of these failing, Hayes was placed on a "Performance Improvement Plan" ("PIP"). (Id. ¶¶ 42, 45.) Cablevision's policy was to place employees on a "Performance Improvement Plan" ("PIP") when they received an overall rating below a "3" on an annual evaluation. (Id. ¶ 27.) A PIP is a 90-day review period during which employees are expected to comply with the goals and objectives outlined in the previous annual evaluation, with bi-weekly review by a supervisor. (Id. ¶ 31,32.) Plaintiff's PIP was prepared by Weismann, and included the requirement that plaintiff submit the following reports and documentation in a timely manner: performance evaluations of plaintiff's technicians; Quality Control Inspections; Safety Roll-Up Inspections, Vehicle Inspections, and confirmation of Tool Box Meetings.*fn2 (Id.)

At the time of the events at issue in 2006-2007, Michael Louisor, who is African American, was the Human Resources Manager. (Id. ¶ 10.) Sam Magliaro was the Managing Director, Alex Torres was the Director of Field Operations, and William Entenmann was the Director of Administration. (Louisor Decl. (Doc. No. 83) ¶ 10.)

Plaintiff and Weismann first met to review the December 2006 evaluation and resultant PIP on January 13, 2007. (Id. ¶43.) The PIP included a 90-day review period, during which Hayes was expected to timely complete the reports required thereby. (Id. ¶¶ 47, 49.) In February 2007, Christopher Connor, who is white, transferred to the Brooklyn Facility as an AOM and became plaintiff's supervisor. (Id. ¶ 52.) As part of his position, Connor became responsible for oversight of Hayes' progress through the PIP. (Id. ¶ 54.) Connor, Weismann and plaintiff met on February 16, 2007, to discuss the requirements of the PIP. (Id. ¶¶ 55-57.) Plaintiff was required to prepare and submit to Connor performance evaluations of Hayes' Technicians; Quality Control Inspections; Safety Roll-Up Inspections, Vehicle Inspections, and confirmation of Tool Box Meetings. (Id. ¶ 48.) Hayes was reminded that he had to submit documentation and reports in a timely fashion so that Connor could verify he was meeting the PIP requirements. (Id. ¶¶ 56-57.)

Thereafter, Connor met with plaintiff on a bi-weekly basis to discuss the documentation plaintiff was required to submit, and his completion of the goals of the PIP. (Id. ¶¶ 55, 61-69, 81-86, 99-106, 118-122.) Connor prepared summaries of these meetings, as well as the documentation submitted by Hayes, and reviewed them with Michael Louisor. (Id. ¶¶ 59-60, 63-64, 68-69, 85-86, 105-106, 121-122.) These summaries were reviewed at the close of plaintiff's PIP, to evaluate his progress and completion of the goals of the PIP. (Id. ¶ 128.) The summaries of every meeting reflect that required documentation was missing or incomplete, in addition to other problems with plaintiff's performance, such as his failure to complete "check-in" duties when required.*fn3 (Connor Decl. (Doc. No. 85) Ex. A, B, C, E, F & H.)

On March 19, 2007, plaintiff was assigned to be the "Single Point of Contact" ("SPOC") for the day at the Brooklyn Facility. (Def. Rule 56.1 Statement (Doc. No. 82) ¶¶ 70-72.) This was an assignment rotated among the supervisors at the Brooklyn Facility, requiring the "SPOC" to address all customer complaints and technician problems arising in the Facility that day. (Id. ¶¶ 71.) SPOC duty meant being "responsible for all daily operations of the company that day." (Hoey Decl., (Doc. No. 82) Ex. A, Pl. Dep. 163.) Instead of overseeing daily operations as assigned, plaintiff instead went out into the field. Plaintiff received three phone calls from the Brooklyn Facility: one call from Supervisor Temaine Peltzer, directing him to return to the Facility, which plaintiff did not do; a second call from AOM Arnold Carroll, indicating that Carroll would contact Director Alex Torres regarding plaintiff's absence; and a third call from Torres, directing plaintiff to return, in response to which plaintiff did return to the Facility. (Id. ¶¶ 73-77.)

On March 19, 2007, AOM Carroll wrote a memorandum to Director Torres and Connor reporting the SPOC incident. (Def. Rule 56.1 Statement (Doc. No. 82) ¶ 78; Connor Decl. (Doc. No. 85) Ex. D.) Torres and Entenmann (Director of Administration, Brooklyn) decided to give plaintiff a written reprimand for the incident, which was viewed as insubordinate and a dereliction of his duties. (Connor Decl. (Doc. No. 85) Ex. G.) Plaintiff admitted in his deposition that he did not properly perform his SPOC duties, and does not believe the warning had anything to do with his race. (Def. Rule 56.1 Statement (Doc. No. 82) ¶ 80.) Connor made a note regarding the pending corrective action in his report of the March 23 PIP meeting, (id. ¶ 84.), which indicated plaintiff's failure to complete SPOC duties as assigned on March 19. (Connor Decl. (Doc. No. 85) Ex. E.)

On March 30, 2007, Torres and Connor held a regularly scheduled Supervisors' meeting with all eleven of the Supervisors at the Brooklyn Facility (ten of whom were African American.) (Id. ¶¶ 87-88.) At the meeting, Connor raised the issue of compliance with Cablevision's uniform policy and reminded the supervisors that Cablevision policy required them to wear Red Wing brand boots. (Id. ¶¶ 89-90.) Plaintiff was sitting next to Connor, wearing Timberland brand boots, with the laces of one boot untied. (Id. ¶¶ 91-92.) Connor asked Hayes to "stand in the corner." (Id. ¶ 93.) Connor then stepped over to Hayes and tried to lift Hayes' pant leg. (Id. ¶ 94.)

Connor told those present that Timberland boots did not comply with uniform policy, and that it was unsafe for a supervisor to walk around with a boot untied. (Id. ¶ 95.) Plaintiff testified that "[Connor] said that [I] was wearing my Timberlands with the tag hanging out looking like a thug." (Hayes Decl. (Doc. No. 89) ¶ 47.) Connor denies using the term "thug." (Mem. Supp. Def.'s Mot. Summ. J. (Doc. No. 82) ¶ 19.) Nigel Williams, a supervisor present at the meeting, testified at his deposition that untied boots are not generally in compliance with dress code, and that he did not feel that Hayes was singled out in the March 30 meeting because he is African American. (See Hoey Decl. (Doc. No. 86) Ex. O.) Williams also reported that he could see that Hayes' boots were untied ("the tongue was hanging down") from where he was sitting at the table. (See id.)

On April 2, 2007, plaintiff received the formal written notice of the reprimand issued to him by Connor following the SPOC incident. (Def. Rule 56.1 Statement (Doc. No. 82) ¶ 107; Connor Decl. (Doc. No. 85) Ex. G.) On the same day, plaintiff also complained to Entenmann about Connor's behavior at the March 30 meeting. (Id. ¶ 108.) Hayes testified at his deposition that he told Entenmann that he was "upset," "embarrassed," and felt "humiliated" by Connor. (Id.) Plaintiff further stated that Connor used a "harsh, mean voice," and that plaintiff was baffled, shocked, humiliated and embarrassed by the incident. (Hayes Decl. (Doc. No. 89) ¶¶ 44-48.) In his later declaration, Hayes reported that he was concerned about protecting his employment and wanted Connor to be disciplined for what Hayes perceived as clear racial bias; Hayes also claimed that he told Entenmann that he felt that he had been the victim of racial discrimination, and that he felt like a slave and like Connor was a slave owner. (Hayes Decl. (Doc. No. 89) ¶¶ 49-59.) Entenmann's contemporaneous records of this meeting reflect that Hayes complained merely of feeling humiliated by "the singling out and the unwanted physical contact." (Def. Rule 56.1 Statement (Doc. No. 82) Ex. M). Hayes asked that he not report to Connor, but Entenmann declined this request. (Def. Rule 56.1 Statement (Doc. No. 82) ¶ 113.)

There were two complaints from customers related to Hayes' performance during his PIP period. The first occurred on April 7, 2007. (See id. ¶¶ 114-17.) Weismann had instructed Hayes to ensure a specific customer's problem be addressed in the morning of April 7. (Id. ¶ 115.) The customer called at 2 pm and reported that no one had shown up for the appointment. (Id. ¶ 116.) Weismann sent an Email to Connor reporting the complaint on the same day, indicating that he expected the supervisor (Hayes) to ensure a particular Technician was sent to do the job, and that a supervisor follow up, but neither was done. (Id. ¶ 117.) Hayes stated that he assigned the call to Modeste, one of his Technicians, but that dispatch ignored the assignment and sent a contractor, who failed to show up. (Hayes Decl. (Doc. No. 89) ¶ 63.)

A second customer complaint occurred on April 20, 2007. (See Def. Rule 56.1 Statement (Doc. No. 82) ¶¶ 123-25), which was relayed to Connor by a call center supervisor. (Id. ¶ 123.) The customer ("Wagner") had initially left a message for Hayes on Monday evening, but since Hayes' work schedule is Friday through Monday, Hayes did not return Wagner's call before Wagner called to complain on Thursday afternoon. (Def. Rule 56.1 Statement (Doc. No. 82) ¶¶ 124-25; Hayes Decl. (Doc. No. 89) ¶ 64.) Upon his return to work on Friday, April 20, Hayes addressed Wagner's service concerns to Wagner's satisfaction. (Hayes Decl. (Doc. No. 89) ¶ 64; LeBow Decl. (Doc. No. 88) Ex. B.)

Hayes' 90-day PIP period ended on April 27, 2007. (Def. Rule 56.1 Statement (Doc. No. 82) ¶ 126.) As is Cablevision's practice, at the end of the PIP, Hayes' performance was reviewed by the management team: William Entenmann, Susan Crickmore from Human Resources, and Sam Magliaro, the Managing Director for the Brooklyn Facility. (Id. ¶¶ 127- 128.) The team considered Connor's reports on Hayes' progress through his PIP, the formal written reprimand Hayes received while on the PIP, and the two complaints from customers, and determined that Hayes had not met all of the goals in his PIP. (Id. ¶¶ 128-29.) In light of his unsatisfactory 2006 evaluation and subsequent job performance, the management team (Entenmann, Crickmore, and Magliaro) decided to terminate Hayes' employment. (Id. ¶¶ 129-30.) Dargyle Campbell, who is African American, was promoted to replace Hayes as Field Service Supervisor. (Id. ¶ 134.)

Plaintiff does not dispute that defendants set forth the foregoing reasons as justification for his termination. However, he contends that Connor's reports were false, the written reprimand for the SPOC incident occurred after Torres had indicated Hayes would not be disciplined, and the customer complaints were not his fault; therefore, he reasons, discrimination and retaliation by Connor for plaintiff's April 2 complaint are the most likely explanations for his termination. (Hayes Decl. (Doc. No. 89) ¶ 65.)


Summary judgment is appropriate where "there is no genuine issue as to any material fact" such that the moving party is entitled to "judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248 (1986). In deciding a summary judgment motion, a district court must draw all reasonable inferences in favor of the non-moving party. See id. at 249 (citing Adickes v. S.H. Kress & Co.,398 U.S. 144, 155-59 (1970)). The court must not "weigh the evidence, but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2007) (quoting Weyant v. Okst,101 F.3d 845, 854 (2d Cir. 1996)).

Courts are obliged to exercise particular caution in determining whether to grant summary judgment dismissing claims of discrimination, because direct evidence of an employer's discriminatory intent is rare and "must often be inferred from circumstantial evidence." Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006). "A trial court must be cautious about granting summary judgment to an employer where, as here, its intent is at issue." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994) (internal quotation marks omitted). "Affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Id. However, as the Second Circuit has noted, it "is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases." Abdu-Brisson v. Delta Air Lines, Inc.,239 F.3d 456, 466 (2d Cir. 2001).

Despite the caution required of courts in deciding a motion for summary judgment, a plaintiff cannot defeat such a motion simply by presenting "conclusory allegations or unsubstantiated speculation." Scotto v. Almenas,143 F.3d 105, 114 (2d Cir. 1998). Even in the discrimination context, "a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment... and show more than some metaphysical doubt as to the material facts." Gorzynski v. JetBlue Airways Corp.,596 F.3d 93, 101 (2d Cir. 2010). "Conclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact." Shannon v. N.Y. City Transit Auth.,332 F.3d 95, 99 (2d Cir. 2003) (internal quotation marks omitted); see also Anderson, 477 U.S. at 256-57 (non-moving party cannot rely on mere allegations, denials, conjectures or conclusory statements, but must present affirmative and specific evidence showing that there is a genuine issue for trial); Weinstock v. Columbia Univ.,224 F.3d 33, 41 (2d Cir. 2000) ("[U]nsupported ...

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