The opinion of the court was delivered by: Paul A. Engelmayer, District Judge
Plaintiff Adolfo Mendez-Nouel, a former clothing salesperson at Gucci America, Inc. ("Gucci"), claims that during his employment he was subjected to a hostile work environment on account of his sex and sexual orientation, and that he was retaliated against for complaining about that environment, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y. City Admin. Code § 8-101 et seq. Gucci now moves for summary judgment against Mendez-Nouel's complaint. For the following reasons, the Court grants Gucci's motion for summary judgment as to MendezNouel's Title VII and NYSHRL claims and declines to exercise supplemental jurisdiction over his NYCHRL claims.
I.Background and Undisputed Facts*fn1
On November 12, 2007, Mendez-Nouel was hired by Gucci as a Sales Associate in the Women's Ready-to-Wear ("WRTW") Department in Gucci's flagship Fifth Avenue, Manhattan Store. Def. 56.1 ¶ 1; Pl. 56.1 ¶ 1. Mendez-Nouel initially reported to Ami Garbiras; in September 2008, after Garbiras was promoted, David Gray was hired as the WRTW manager. Def. 56.1 ¶ 2; Pl. 56.1 ¶ 2. The WRTW manager, in turn, reported to the store manager, who was Mark Mitsukawa at the time Mendez-Nouel was hired; in summer 2008 Michael Daly replaced Mitsukawa. Def. 56.1 ¶ 3; Pl. 56.1 ¶ 3.
During Mendez-Nouel's tenure, at least four documented incidents occurred as to which he was either formally reprimanded or informally spoken to about his conduct at or in relation to the workplace. These incidents, the facts of which are undisputed, are as follows:*fn2
In March 2008, Mendez-Nouel was extensively quoted in a New York Times article about Gucci; Mendez-Nouel's then-manager, Mitsukawa, spoke to him, and cautioned him to refrain from speaking to the press about internal corporate matters. Def. 56.1 ¶¶ 4--6; Pl. 56.1 ¶ 4.a.
In May or June 2008, Mendez-Nouel became embroiled in a dispute with a co-worker. Def. 56.1 ¶ 7; Pl. 56.1 ¶ 7. This disagreement led the co-worker to request a meeting between Mendez-Nouel, the co-worker, and the WRTW assistant manager, at which the dispute was resolved. Id.
In summer 2008, Mendez-Nouel had another dispute with a co-worker, this time about the proper crediting for a clothing sale. Def. 56.1 ¶ 8; Pl. 56.1 ¶ 8. Although Mendez-Nouel did not raise the issue directly with the co-worker, he approached managers to dispute how a sale was credited as between him and the co-worker. Id. During the episode, Mendez-Nouel said he "just want[ed] to go home"; the assistant manager told him that if he did not want to remain in Gucci's employ, he could leave. Id.
In September 2008, during a store inventory, Mendez-Nouel shouted "Mets suck!" over a balcony in the store, yelling to a co-worker below. Def. 56.1 ¶ 9; Pl. 56.1 ¶ 9. Daly, the store manager, heard this outburst, as did an outside auditor. Id. Gray, Mendez-Nouel's direct supervisor, reprimanded him for this incident and placed a "Memo to File" in his personnel file. Id. Mendez-Nouel concedes that this incident merited discipline by Gray; he apologized to Daly for his conduct. Def. 56.1 ¶ 10; Pl. 56.1 ¶ 10.
In addition, during early 2009, Mendez-Nouel was warned several times about other incidents, including hanging up the phone on a customer, shoving a garment at a customer in a rude fashion, and appearing dejected on the sales floor. See, e.g., Def. 56.1 ¶¶ 11--15; Pl. 56.1 ¶¶ 11--15. Mendez-Nouel concedes that management approached him and raised concerns about these incidents; however, he disputes that the incidents themselves occurred. Mendez-Nouel instead claims that the underlying incidents were fabricated as a pretext to justify terminating him. See, e.g., Pl. 56.1 ¶¶ 13--15. Mendez-Nouel does admit, however, that on February 20, 2009, immediately after he allegedly hung up on the customer, he left his post on the sales floor, retired to the employee locker room, and broke down in tears. Def. 56.1 ¶ 16; Pl. 56.1 ¶ 16. He also admits that he feared for his job at this time. Pl. 56.1 ¶ 15.
On February 23, 2009, Mendez-Nouel attended a meeting with his manager, Gray, a Gucci HR representative, and the store's assistant manager. Def. 56.1 ¶ 17; Pl. 56.1 ¶ 17. At that meeting, management discussed the incidents for which Mendez-Nouel had recently been disciplined (those which Mendez-Nouel claims did not occur), and asked Mendez-Nouel whether he was committed to his job at Gucci. Def. 56.1 ¶¶ 17, 21; Pl. 56.1 ¶¶ 17, 21. Mendez-Nouel stated that he was distracted by personal issues outside work, including a recent unsuccessful audition for a movie and a possibility that his wife was pregnant, but he stated that he was committed to his job. Def. 56.1 ¶¶ 19--20; Pl. 56.1 ¶¶ 19--20.*fn3
Three days later, on February 26, 2009, Mendez-Nouel sent an email to Lori StroberLewin, the HR representative who had been present at the February 23 meeting, to formally complain about alleged harassment by his immediate supervisor, Gray, and the store manager, Daly. Def. 56.1 ¶ 25; Pl. 56.1 ¶ 25. Mendez-Nouel claimed that he was (1) touched by Daly, (2) subjected to inappropriate comments by Gray, and (3) retaliated against for failing to accept the touching or to participate in inappropriate conversations. Id. Although Mendez-Nouel asserts that he had once made an offhand remark to a co-worker to the effect that Daly had touched him in an unwelcome manner, see Pl. 56.1 ¶ 22, the February 26, 2009 complaint was his first formal statement to HR about alleged harassment. Def. 56.1 ¶ 22; Pl. 56.1 ¶ 22.
Gucci quickly launched an investigation into Mendez-Nouel's complaint. Def. 56.1 ¶ 26; Pl. 56.1 ¶ 26. On March 4, 2009, as part of that investigation, Mendez-Nouel met with StroberLewin, Gucci's HR representative, and Gucci's regional manager (Daly's immediate supervisor). Id. Strober-Lewin took notes at this meeting. These reflect that Mendez-Nouel acknowledged that business was slow, and that he felt he was "next in line" to be terminated. Def. 56.1 ¶ 28; Pl. 56.1 ¶ 28.
After the meeting, Mendez-Nouel went to lunch; upon his return, he was observed to be shaking and out of breath. Def. 56.1 ¶¶ 30--31; Pl. 56.1 ¶¶ 30--31. A fellow employee called an ambulance, and Mendez-Nouel was diagnosed with a panic attack. Id.
On March 5, 2009-the day after Mendez-Nouel's panic attack at the store-a co-worker, Meryam Kabsy, called HR representative Strober-Lewin. Kabsy expressed concern over Mendez-Nouel's condition and behavior. Def. 56.1 ¶ 33; Pl. 56.1 ¶ 33. Kabsy stated that she believed Mendez-Nouel's recent agitation was creating a dangerous situation at the workplace. Def. 56.1 ¶ 34; Pl. 56.1 ¶ 34.*fn4
Kabsy also told HR that Mendez-Nouel had said to her that "something big was going to happen" but he "couldn't tell her" what it was. Def. 56.1 ¶ 35; Pl. 56.1 ¶ 35. Kabsy also informed HR that Mendez-Nouel had related to her a story from his childhood in which he had shot somebody with a BB gun. Def. 56.1 ¶ 36; Pl. 56.1 ¶ 36.
Strober-Lewin also interviewed two other co-workers of Mendez-Nouel's. As reflected in her report, these co-workers related other provocative statements that Mendez-Nouel had made in the workplace. These included that: (1) "People are ungrateful and something big is going to happen and he knows about it but they don't"; (2) "people had become bad towards each other and people don't understand life until something bad happens" and "something big should happen so people will care about each other"; (3) Mendez-Nouel "would make jokes about shooting and would point his finger to himself. He would talk about shooting people and he would read the internet and talk about the world and how it should end and start over. He said somebody should be shot"; and (4) Mendez-Nouel had made comments about the world coming to an end, or the destruction of the world, around the time of the 2008 presidential election. Def. 56.1 ¶ 40; Pl. 56.1 ¶ 40.*fn5
On March 6, 2009, after speaking with various employees, Gucci's HR department determined that numerous employees were concerned about Mendez-Nouel's references to shooting and violence. It decided to suspend Mendez-Nouel pending further investigation. Def. 56.1 ¶ 44; Pl. 56.1 ¶ 44. A contemporaneous e-mail from Gucci's global HR director, explaining the decision, stated:
[W]e have had three employees inform us today that they are seriously concerned about their safety as Adolfo has made numerous comments about shooting people (not employees but people in general) and that Michael Daly, David Gray and Gucci will "get what's coming to them and something big is going to happen." He sounds seriously disturbed and I made the decision at this time to suspend him until further notice.
After the suspension, HR continued investigating Mendez-Nouel's behavior. Def. 56.1¶ 45; Pl. 56.1 ¶ 45. Strober-Lewin, the HR employee, spoke with three other co-workers who had not previously been interviewed. Her investigation report reflects that those witnesses attributed the following statements to Mendez-Nouel: (1) two co-workers stated, consistent with the earlier interviews, that Mendez-Nouel had said that "something big was going to happen"; and (2) another co-worker also stated that Mendez-Nouel went on "tirades" and "if you disagreed with him you were on his list." Def. 56.1 ¶ 45; Pl. 56.1 ¶ 45. A third co-worker expressed "relief" that Mendez-Nouel was no longer on the sales floor. Id.
On March 18, 2009, Strober-Lewin interviewed Mendez-Nouel by telephone as part of the investigation. Pl. 56.1 ¶ 126.
On March 19, 2009, following the additional interviews, Gucci terminated MendezNouel's employment.*fn6 Id. ¶ 127.
After his termination, Mendez-Nouel filed an administrative complaint with the Equal Employment Opportunity Commission, claiming that his rights under Title VII had been violated. Compl. ¶ 4. On March 15, 2010, the EEOC issued plaintiff a "right to sue" letter. Id.
On April 22, 2010, Mendez-Nouel filed this lawsuit. Dkt. 1. Mendez-Nouel claims that he was subject to a hostile work environment on account of his sex (male) and sexual orientation (heterosexual) when: (1) Gray, his direct manager, made a number of sexually-charged comments on the sales floor, see Compl. ¶¶ 13--16; and (2) Daly, the store manager, touched him on the shoulders and back, see Compl. ¶¶ 11--12.
As to Gray, Mendez-Nouel alleges that Gray said on at least two occasions that MendezNouel was "gay inside" and that Gray "bet [Mendez-Nouel was] gay." Compl. ¶ 13. MendezNouel also asserts that Gray would say that men in the store were "hot" and that he would "do that guy." Id. ¶ 14. Gray also allegedly would relate stories of his nights out at gay clubs, including at least one episode where Gray was "pole dancing" or engaging in other sexualized behavior. Id. ¶ 15. Mendez-Nouel also complains of an instance in which Gray described a YouTube video he had seen. In that video, Anna Nicole Smith is drawn as a smurf character and said "you should smell my smurph"; Mendez-Nouel states that he understood this to be a reference to female genitalia. Id. ¶ 24. Mendez-Nouel states that he was uncomfortable when Gray made such comments, and that he did not participate in the sexualized banter. Id. ¶ 16.
As to Daly, Mendez-Nouel asserts that in or around September 2008, Daly, whom Mendez-Nouel alleges to be homosexual, approached him from behind, grabbed his shoulders, and gave them a brief massage; Mendez-Nouel alleges that at the conclusion of the massage, Daly ran his hand down Mendez-Nouel's back, stopping above the buttocks. Id. ¶ 11. MendezNouel also alleges that, also in or about September 2008, Daly gave him a second brief shoulder rub. Id. ¶ 12.
In addition to claiming a hostile work environment, Mendez-Nouel also claims that he was retaliated against, in two ways. First, he claims that he was denied a day off during the Christmas season, but that a co-worker who did join in Gray's sexual banter was given a day off during that time period. Id. ¶ 17. Second, he claims that he was terminated in March 2009 in retaliation for his February 26, 2009 complaint about his alleged harassment at the hands of Gray and Daly. Id. ¶ 36.
On May 4, 2012, following discovery, the Court held a pre-motion conference regarding Gucci's proposed motion for summary judgment. On June 8, 2012, Gucci filed the instant motion. Dkt. 29--35. On July 13, 2012, Mendez-Nouel filed his opposition. Dkt. 37--39. On July 27, 2012, Gucci filed its reply. Dkt. 40. On September 4, 2012, the Court held oral argument on this motion.
III.The Parties' Arguments
In moving for summary judgment, Gucci makes three arguments. First, as to MendezNouel's claims of discrimination, Gucci argues that Mendez-Nouel was not harassed based on his sex or sexual orientation, because (1) the alleged conduct and comments were not directed at him because of these characteristics, and (2) the conduct alleged does not rise to the level of a hostile work environment. Def. Br. 15, 18--19. Second, as to his retaliation claims, Gucci argues that Mendez-Nouel was not retaliated against for engaging in protected activity, because (1) his decision not to engage with Gray's sexual banter is not itself a protected activity, and (2) although Mendez-Nouel's complaint was a protected activity, Gucci had a neutral justification for his termination which he has not shown to be pretextual--his "erratic and frightening conduct" in the workplace, as related to Gucci during its investigation. Def. Br. 22. Third, as to MendezNouel's state law claims under NYSHRL and NYCHRL, Gucci asks that the Court, to the extent it does not dismiss those claims as deficient, not exercise supplemental jurisdiction over them. Def. Br. 24.
In response, Mendez-Nouel argues that discovery has revealed triable issues of fact on both his discrimination and retaliation claims, as brought ...