The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action for employment discrimination brought pursuant to 42 U.S.C. § 1981 and the New York Human Rights Law ("NYHRL"). Now before the Court is Defendants' motion for judgment on the pleadings. (Docket No. [#8]). The application is granted.
In 1989, Plaintiff began working for the Rochester City School District as a "Driver and Mover." Plaintiff was born in Puerto Rico. Although English is his second language, he speaks it fluently. Plaintiff has an accent, but maintains that it never caused him any difficulty during his twenty years of employment at the school district. Complaint ¶ 31; see also, id. at ¶ 11 ("[Plaintiff] has always maintained an above average work record with no personnel issues.")
In 2007, Defendant Glen Dunford became Plaintiff's immediate supervisor. Plaintiff always spoke English to Dunford, but spoke Spanish with Spanish-speaking co-workers, which bothered Dunford. Complaint ¶ 33, 35. Plaintiff indicates that between 2007 and 2011, Dunford made a number of comments that suggest a discriminatory animus.
In 2008, Plaintiff apparently*fn1 was speaking to Dunford on the telephone, when Dunford angrily stated, "I need to speak with someone who knows how to speak English!" Complaint ¶ 14. After Plaintiff gave the phone to a co-worker, Dunford allegedly said, "Great, now I can speak to someone who actually knows English." Id. at ¶ 16. Also in 2008, on "several occasions," Dunford told Plaintiff, "I hope you didn't blow your bridges from where you came from." Id. at ¶ 17. Plaintiff purportedly inferred from such comments that he "might be fired and sent back to Puerto Rico." Id.
Later in 2008, while Plaintiff and another employee, James Cover, were working in a warehouse, Dunford told Plaintiff, "Go ahead and do something stupid, so I can take care of your wife." Id. at ¶ 21. After this comment, Plaintiff and Cover "requested a meeting" with another supervisor to complain about Dunford's "harassing and racially motivated comments." The Complaint, however, does not detail any comments being made to Cover, nor does it indicate whether a meeting actually took place, but does indicate that "the harassment continued." Id. at ¶ ¶ 22-23.
During 2009, the Complaint does not allege that Dunford made any derogatory comments.
In August 2010, on the Monday following the Puerto Rican Festival in Rochester, New York, Dunford said to Plaintiff, "Oh, you are here?" Plaintiff replied, "Yes, why [wouldn't I be]?" Dunford responded, "Oh, I thought that you were not going to be here because maybe you were one of the men who got arrested at the Puerto Rican festival last night,*fn2 that's why I'm surprised to see you here." Complaint ¶ ¶ 24-26. Dunford allegedly made several other "degrading and harassing comments about Plaintiff's Puerto Rican heritage," though the Complaint does not indicate what was said. Id. at ¶ 28.
On March 23, 2011, during a "performance evaluation meeting," Plaintiff told Dunford, "I am tired of your racial comments, whenever you have something to say, tell me and let me know instead of telling other people that you have issues with my communication skills. I know its probably hard because of my accent, but I have never had a problem with the 20 plus years I have been working with the department." Complaint ¶
31. Dunford responded, "I'm getting tired of you speaking Spanish with your co-workers, this is America, you gotta speak English when you live in America." Id. at ¶ 33.*fn3 Later that day Dunford apologized to Plaintiff for the remark.
After the apology, though, Plaintiff maintains that Dunford attempted to retaliate against him, by monitoring him more closely:
Dunford started to monitor Plaintiff's work more closely and put extra pressure on Plaintiff. Supervisor Dunford began sneaking up on Plaintiff while he was working to purposefully try to catch Plaintiff doing something wrong, however Plaintiff ...