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Enio R. Rivera v. Rochester Genesee Regional Transportation Authority

December 21, 2012


The opinion of the court was delivered by: Lohier, Circuit Judge:


Rivera v. Rochester Genesee Regional Transportation Authority

Submitted: March 1, 2012

Before: KEARSE, LOHIER, and DRONEY, Circuit Judges.

32 Enio Rivera and Michael Talton, employees of the Rochester Genesee Regional 33 Transportation Authority ("RGRTA"), sued that agency and a supervisory employee, John 34 Tiberio, alleging that they were subjected to a hostile work environment on the basis of race and 35 national origin and were retaliated against for complaining about the hostile work environment.

36 The District Court granted summary judgment to the defendants-appellees on all claims. 37 Because we conclude that genuine issues of material fact exist as to plaintiff-appellant Rivera's 38 hostile work environment claims against RGRTA and as to all of plaintiff-appellant Talton's 39 claims, we VACATE in part the grant of summary judgment and REMAND to the District Court 1 for further proceedings as to these claims. However, we AFFIRM the judgment of the District 2 Court as to plaintiff-appellant Rivera's remaining claims, including his claims of retaliation.

13 Plaintiffs Enio Rivera and Michael Talton, employees of Lift Line, Inc., a subsidiary of 14 Rochester Genesee Regional Transportation Authority ("RGRTA"), appeal from a judgment of 15 the United States District Court for the Western District of New York (Larimer, J.), granting the 16 summary judgment motions of RGRTA and a supervisor, John Tiberio, and dismissing the 17 plaintiffs' claims of discrimination and retaliation under Title VII of the Civil Rights Act of 18 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 1981, and the New York State Human 19 Rights Law ("NYSHRL").*fn2 On appeal, Rivera, who is of Puerto Rican descent, and Talton, an 20 African American, contend that they proffered sufficient evidence that they were subjected to a 21 hostile work environment based on national origin and race, respectively, and thereafter were 22 retaliated against for complaining about it.*fn3 For the reasons that follow, we affirm the judgment 23 of the District Court as to Rivera's § 1981 claim against Tiberio as well as his retaliation claims, 24 but vacate the judgment of the District Court as to plaintiffs' remaining claims and remand to the 25 District Court for further proceedings.


2 In reviewing the District Court's grant of summary judgment in favor of RGRTA and 3 Tiberio, "we construe the evidence in the light most favorable to the plaintiff[s], drawing all 4 reasonable inferences and resolving all ambiguities in [their] favor." In re Omnicom Grp., Inc. 5 Sec. Litig., 597 F.3d 501, 504 (2d Cir. 2010) (quotation marks omitted).

1. Rivera

7 Lift Line is an RGRTA subsidiary that provides door-to-door public transportation 8 services for elderly and disabled persons. Rivera, a Hispanic of Puerto Rican descent, started 9 working for Lift Line as a bus driver in 1994 and remained in that position at all relevant times. 10 Sometime in 2001, Dominic Folino, the senior mechanic at Lift Line, began an affair with 11 Rivera's then-wife, Kimberly. Kimberly and Rivera divorced in 2002 or 2003, after Rivera 12 learned about the affair, and Kimberly married Folino. Rivera also remarried, in 2006. Other 13 than a brief period in 2006, Rivera's son lived with Folino and Kimberly from 2002 onward. 14 The affair predictably ignited a deep personal conflict between Rivera and Folino at work. 15 As relevant to his claims of discrimination, Rivera testified that between 2003 and 2007 16 Folino called him a "spic" twice and a "Taco Bell" at least five times. Rivera testified that there 17 were several occasions on which he pulled into the Lift Line garage to find Folino and Tim 18 Driscoll, another Lift Line mechanic, chanting "What's that smell, look at the fat f***, there is 19 Taco Bell." During his deposition, Talton confirmed that Folino openly referred to Rivera as a 20 "spic" and a "nigger spic" outside of Rivera's presence on at least one occasion. Talton further 21 testified that Folino "looked at me and he said, 'Mike, I'm not talking about you. A nigger can 22 mean anybody. I'm talking about that spic, Ralph Rivera.'" 23 Rivera also presented extensive contemporaneous evidence suggesting that Folino and 24 several other Lift Line mechanics regularly harassed and bullied him throughout this period, but 25 without using ethnic slurs. Rivera reported many of these instances of harassment to RGRTA 26 shortly after they occurred. For example, on April 23, 2003, Rivera filed an "Incident Report" in 1 which he asserted that mechanic John Stiggins and another employee stopped and confronted 2 him as he was driving out of the Lift Line parking lot after work. In May 2003 he followed up 3 with a letter to Lift Line's Human Resources Department, claiming that Folino and another 4 mechanic had cursed and stared at him menacingly. In another letter four months later, Rivera 5 complained that Folino had cursed at him again and tampered with his time card slot. Rivera 6 also alleged that Lift Line had ignored his complaints of harassment. None of these 2003 7 complaints referred to the use of ethnic slurs or harassment motivated by Rivera's national 8 origin.

The following year, in June 2004, Folino filed an internal complaint of his own, claiming 10 that Rivera had threatened him. In September 2004 Robert Bilsky, Lift Line's Vice President for 11 Human Resources, informed Rivera that he had become aware of conflicts between Rivera and 12 Folino due to "problems in [their] personal home lives." Bilsky said that he could "find no proof 13 of exactly who is right or wrong in this harassment complaint," but that he was "extremely 14 concerned" about the ongoing hostility between Folino and Rivera.

15 Although a change in shift times in late 2004 apparently reduced the frequency of 16 interactions between Rivera and Folino at work, the conflicts between the two men resumed in 17 2005. Between March 2005 and September 2007, Rivera filed seven complaints about Folino's 18 conduct, again accusing Folino of threatening and harassing him. For example, Rivera claimed 19 that Folino sprayed Rivera with paint thinner, posted photos in the workplace of lavish gifts he 20 had purchased for Rivera's son, stared menacingly at Rivera, swerved his car toward Rivera in 21 the parking lot, and generally undermined Rivera's ability to do his job. Rivera's internal 22 complaints employed the terms "prejudice," "harassment," and "discrimination," but they did not 23 mention or suggest that Folino's conduct involved ethnic slurs or was otherwise on account of 24 Rivera's national origin. In his September 2005 complaint, Rivera attributed Folino's behavior 25 to their personal conflict, asserting that Folino "insist[ed] to bring these very personal issues to 26 work . . . causing a very uncomfortable and hostile work environment." Talton testified, 1 however, that it was during this time period that Folino referred to Rivera as a "spic" and "nigger 2 spic."

3 Rivera first formally accused Folino of harassment on account of national origin in 4 March 2007, when he filed a complaint with the New York State Division of Human Rights 5 ("NYSDHR"). The NYSDHR complaint attributed the harassment to "an old boys club, 6 specifically of Italian American descent that have a conspiracy against me and are trying to have 7 me fired from Lift Line." As with Rivera's earlier internal complaints, the complaint alleged that 8 Folino, Stiggins, Tiberio, and others had engaged in boorish or harassing behavior directed at 9 Rivera, but failed to mention the use of ethnic slurs by any of his co-workers.

10 NYSDHR notified Lift Line of Rivera's complaint by letter dated March 7, 2007. Rivera 11 claims that Lift Line retaliated against him thereafter. He testified that (1) he was disciplined for 12 insubordination twice in approximately 2008 or 2009; (2) Lift Line rejected his request for a half 13 day off for a doctor's appointment, in violation of a collective bargaining agreement; (3) he was 14 assigned particularly "dirty buses" to drive; (4) he once received his overtime pay two weeks 15 late; and (5) after he was involved in a minor ...

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