The opinion of the court was delivered by: Glasser, United States District Judge:
Plaintiff Fernando Marrero ("Marrero" or "plaintiff") brought this action against his former employer, R-Way Moving & Storage, Ltd. ("R-Way" or "defendant"), alleging race-based discrimination, a hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296 et seq. (McKinney 2010). Before the Court is defendant's motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, defendant's motion is granted in part and denied in part.
The following facts are undisputed, unless otherwise noted. R-Way is a
moving company based in Maspeth, New York, owned by Joseph and
Christopher Rooney. Defendant's Local Rule 56.1 Statement of
Undisputed Material Facts ("Def.'s 56.1") ¶¶ 1-2. During the relevant
time period, R-Way had four full-time employees: Joseph
Rooney, Christopher Rooney, and their wives. Id. ¶ 17. R-Way also
employed a part-time bookkeeper, Ed Vecchio. Id. ¶ 16. The parties
dispute the number of movers employed, but they agree that these
movers are divided into full-time or "regular" movers,*fn1
who were contacted every time there was a moving job, id. ¶¶
3-4, and numerous part-time workers who are contacted when the regular
workers are unavailable or when a moving job requires additional
workers, id. ¶ 5; Plaintiff's Local Rule 56.1 Statement of Undisputed
Material Facts ("Pl.'s 56.1") ¶ 10.
R-Way employed plaintiff as a part time worker from July 6, 2006 to April 15, 2010. Def.'s 56.1 ¶ 6; Compl. ¶ 2. Plaintiff alleges he initially worked as a "shaper," meaning he called R-Way each morning and was given assignments based on R-Way's needs. Compl. ¶ 14. In the spring of 2007, plaintiff alleges he was promoted to "elevator," meaning that he was paid more, was given better assignments, and worked more regularly than a "shaper." Compl. ¶ 15. At approximately the same time, plaintiff alleges he began to be subjected to harassment based on his race and skin color. Plaintiff self-identifies as non-White Hispanic. Pl.'s 56.1 ¶¶ 1-2; Compl. ¶ 2.
Plaintiff alleges he was subjected to daily racial harassment at R-Way. This harassment allegedly began in July 2007 when two regular workers, Montefusco and Lee, called him a "monkey" and placed a banana near him. Affidavit of Ferdinand Marrero dated April 30, 2012 ("Marrero Aff.") ¶ 23. Later that day, they allegedly called plaintiff at home on his cell phone and made monkey noises, which plaintiff's children overheard. Id.; Affidavit of Susan B. Egan dated April 2, 2012 ("Egan Aff.") Ex. 1 ("Marrero Dep."), at 47. Montefusco admitted that he called plaintiff "monkey" but testified that the nickname originated with plaintiff, who referred to himself as a "silver-back gorilla" due to his grey hair. Affidavit of Michael Resko dated April 30, 2012 ("Resko Aff.") Ex J ("Montefusco Dep."), at 29-31.
From that day onward, R-Way employees allegedly referred to plaintiff almost exclusively as "monkey." Marrero Aff. ¶ 25. Plaintiff also alleges R-Way employees repeatedly taunted him with monkey and gorilla toys or stuffed animals, which sometimes were dressed in an R-Way t-shirt with plaintiff's name written on it. Marrero Aff. ¶ 26; see also Affirmation of Joseph Amadiz dated April 23, 2012 ("Amadiz Aff.") ¶ 13; Marrero Dep. at 52-53, 68. When plaintiff removed the toys, they were quickly replaced. Marrero Dep. at 66. On one occasion, R-Way employees allegedly induced a customer's child to throw a monkey toy at plaintiff. See Marrero Dep. at 45; Amadiz Aff.
¶ 13. On another occasion, Montefusco allegedly said to plaintiff, "Hey monkey, turn around," and then threw a small red cloth monkey at plaintiff. Marrero Dep. at 69. RWay employees also allegedly posted a depiction of a chimpanzee inside a company truck, with plaintiff's name written on it. Id. at 68.*fn2
In the late summer of 2009, R-Way employees allegedly hung a poster in the RWay warehouse, depicting a monkey drinking from a bottle of alcohol. Handwritten across the top of the poster was the message, "Have you seen our monkey? Reward if found $$$." Next to the monkey is plaintiff's first name, "Fernando," and across the monkey's chest is written "R-Way." See Resko Aff. Ex. C. Plaintiff alleges at least 10 copies of the poster were hung in the R-Way warehouse and offices. Marrero Aff. ¶ 28; see also Amadiz Aff. ¶ 19 (stating he saw the poster hanging in the R-Way warehouse);
Resko Aff. Ex. K (Vecchio Dep.), at 47-48 (testifying he saw the poster in the R-Way warehouse). Near the posters, at the entrance to the warehouse, a stuffed purple monkey was hung from the ceiling. Marrero Dep. at 59-60. Plaintiff took down many of the posters, but alleges the purple monkey and some of the posters were too high for him to reach and were still hanging when he stopped working there on April 19, 2010. Marrero Dep. at 58-59.
Plaintiff alleges that he complained several times to Chris Rooney about being called "monkey," which he interpreted to be racially derogatory. Marrero Aff. ¶ 29. The first time he allegedly complained was the morning after Montefusco and Lee called him and made monkey noises. Marrero Dep. at 51. Plaintiff testified that he was so angry, he attempted to physically confront the two men but Chris Rooney intervened and told him "you got to roll with the punches." Id. Plaintiff also submitted an affidavit from Joseph Amadiz, a part-time worker at R-Way, who stated that in November 2007 he was riding back from a moving job with Marrero and heard Marrero complain to one of the Rooney brothers about being called "monkey." Amadiz Aff. ¶ 17. Plaintiff alleges he also complained to Chris Rooney in October 2008 regarding the monkey comments and stated he considered the comments "racial." Marrero Dep. at 88. Rooney allegedly again told plaintiff to "roll with the punches" and "just deal with it." Id. Defendant denies plaintiff ever complained or that Chris or Joe Rooney were aware of the taunts.
Plaintiff alleges that on March 10, 2010 he again complained to Chris Rooney about the harassment. Compl. ¶ 24; Marrero Aff. ¶ 22. Plaintiff alleges that during this conversation, Rooney called him a "fucking monkey." Compl. ¶ 24; Marrero Aff. ¶ 22. Following this exchange, plaintiff alleges his hours were severely reduced and his employment was constructively terminated. Compl. ¶ 25; Marrero Aff. ¶ 22 ("I was called to work on only 4 days in the 6 weeks immediately following my complaint to Chris Rooney on March 10, 2010."). Plaintiff recounted that during that time, he had an argument with Angel Lopez, another Hispanic employee, who participated in the harassment. Lopez allegedly sent plaintiff a text message with a picture of a case of bananas and the message, "Chris says there is no work, he ordered some food, go unload this." Marrero Dep. at 92. Plaintiff then called Lopez: "I told him straight up, 'You're an Uncle Tom. Why are you following them? This is not a joke to me. You know as well as I know that I'm taking this very -- like it is being discriminated.'" Marrero Dep. at 100.
On April 19, 2010, the last day plaintiff worked for R-Way, plaintiff confronted Chris Rooney regarding his reduced hours and the harassment he suffered. Marrero Aff.
¶ 30; Affidavit of Christopher Rooney dated April 2, 2010 ("Rooney Aff.") Ex. 1 (Transcript). Plaintiff recorded that conversation, using his mobile phone:
CHRIS: Fernando? Some, some of the guys are telling me that you're unhappy, that, you know, things that they say and everything like that, you know. If you don't want to work here, I understand. . . . But they said something that's bothering me, you know, they said you were going to sue me and I don't know . . . . . . .
FERNANDO: I'm getting tired of this shit, all right Chris? I gave you five years, five years and you're tellin' me that you got no work for me but you got a whole line of cars sittin' outside that I have seniority over them, okay? Right or wrong Chris? Right or wrong? I have seniority over 'em. And it took five years, three years of that dealing with fuckin' monkey this and fuckin' monkey that. Right or wrong? Right or wrong?
CHRIS: Fernando, listen. I had talked to you about-if that's what's still bothering you, okay, you handle that amongst the men. You handle it with, with, with the guys. I'm not gonna tell 'em to do this or don't do that. I spoke my piece about it when it first started, I said knock it off, okay? And then you were fine with it and you were jokin' back and forth with it.
FERNANDO: Well, I had no choice, 'cause uh, um, I mean even you said it a couple times, even you said it like I heard you, and you handed me a banana like it's a joke, it's not a joke to me. It's seriously, seriously it bothers me, it really bothers me but I have to, I have to fuckin' sit on the sidelines, keep my mouth shut, while you yelled at me like
I'm some little kid? I dealt with this shit, I get sick. You used to yell, you yelled at me like I was some little kid, you just humiliate me in front of the guys, like I'm some little child.
I'm not a little child, I'm 40 years old. . . . I bit my tongue because I needed the job, but then I'm gonna sit down and then I come here and I see, every time I come here, I see somebody, people that ...