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Enio R. Rivera v. Rochester Genesee Regional Transportation Authority

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011


December 21, 2012

ENIO R. RIVERA, MICHAEL TALTON, PLAINTIFFS-APPELLANTS,
v.
ROCHESTER GENESEE REGIONAL TRANSPORTATION AUTHORITY, JOHN TIBERIO, DEFENDANTS-APPELLEES.*FN1

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

11-762-cv

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.

1 BACKGROUND

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 driving accident, Folino unsuccessfully urged the 16 Lift Line road supervisor to drug test him, even though company policy did not mandate it.

2. Talton

18 Talton was hired by Lift Line in 2004 as a "fueler-washer" responsible for refueling, 19 cleaning, and servicing the buses when the drivers returned from their runs. Talton alleges that 20 co-workers taunted him with racial slurs. During discovery, Talton testified about two specific 21 incidents in which John Stiggins, a white mechanic, called him a "nigger." He also presented 22 evidence that his white supervisor, defendant-appellee Tiberio, used the same racial slur. 23 In the first of two incidents involving Stiggins's conduct on the Lift Line premises, 24 Stiggins told Talton, "I thought you was my boy," and, "You know what I'm talking about, 25 nigger. You were supposed to look out for us." The statement apparently referred to Talton's 26 failure to cover for Stiggins when a Lift Line dispatcher was looking for him. When Talton 1 responded, "Who . . . are you calling nigger?," Stiggins aggressively approached Talton and said 2 "We could do this right here." In the second incident, Talton and Stiggins were talking casually 3 when Stiggins abruptly announced that he had been "out drinking with Mingo [Sanhueza, a co- 4 worker] last night" and that Sanhueza had "started talking about niggers." Stiggins claimed that 5 Sanhueza had said that he "wished all you niggers died."

6 Talton further testified that his supervisor, Tiberio, called him a "nigger," and also told 7 him to "[g]et over it" when he complained that his co-workers had used the slur. This testimony 8 is consistent with a charge that Talton filed with the Equal Employment Opportunity 9 Commission ("EEOC") in May 2006, which asserted that his supervisor -- presumably Tiberio 10 -- responded to Talton's complaint about racial harassment by laughing and then telling Talton 11 that he "should just 'suck it up and get over it, nigger!'" In support of the defendants' summary 12 judgment motion, Tiberio submitted an affidavit in which he denied that he ever used that or any 13 other racial slur and similarly denied that Talton complained to him about racial harassment.

14 Talton also claims that he was racially harassed after he told Lift Line's management that 15 Sanhueza, a bus driver, kept a gun on one of the buses. After discovering the gun while cleaning 16 the bus, Talton immediately called Tiberio, who retrieved the gun and started an investigation. 17 Upset by the disciplinary hearing that followed, Sanhueza threatened Talton by shaping his hand 18 in the form of a gun and saying, "I'm going to kick your ass, nigger." Sanhueza was initially 19 terminated as a result of the gun incident. In September 2005, however, Sanhueza's union 20 settled with RGRTA, and Sanhueza was reinstated as a fueler-washer rather than a driver. 21 Somewhat ironically, Talton was made responsible for training Sanhueza in his new position. In 22 October 2005 Talton, Tiberio, and Sanhueza met to discuss the fact that some of the buses were 23 not adequately cleaned. After the meeting, according to Talton, Sanhueza threatened Talton and 24 again called him a "nigger." Talton complained to Tiberio, who sought disciplinary action, and 25 Sanhueza was permanently terminated sometime, it appears, in autumn 2005.

1 In May 2006 Talton filed his first charge of discrimination with the EEOC. The charge 2 primarily recounted his encounters with Sanhueza, but also reported that other co-workers -- 3 including Tiberio, as described above -- had called Talton a "nigger." In both his EEOC charge 4 and in his deposition during discovery in this case, Talton asserted that he had complained in 5 hand-delivered letters to management about the incidents described above, but that Lift Line had 6 failed to take remedial action.

7 After the initial May 2006 charge, Talton filed two more EEOC charges of 8 discrimination. The first of these charges, filed in August 2006, alleged that Tiberio warned 9 Talton that he could lose his job for filing the initial EEOC charge. The last EEOC charge was 10 precipitated by internal complaints against Talton that were filed by Stiggins and Edwin Ayala, a 11 fueler-washer, claiming that Talton had made various menacing comments and "false 12 accusations" in the workplace. Their complaints quickly culminated in Talton meeting with 13 RGRTA's Vice President of Regional Operations, Debie Himmelsbach, who told Talton that she 14 had "received reports from several employees . . . regarding behavior he had exhibited which 15 made them uncomfortable" and that he "needed to be more careful in his relationships with other 16 employees." Talton charged that this counseling meeting with Himmelsbach was held in 17 retaliation for his first two EEOC charges.

18 Talton also points to at least four other acts of retaliation, not all of which were described 19 in his EEOC charges. First, he testified that he was disciplined three times for insubordination 20 after filing his EEOC charges. Second, he claims Tiberio distributed copies of at least one of 21 Talton's EEOC charges to co-workers and directed the other fueler-washers not to interact with 22 him. Third, Talton submitted an affirmation from a co-worker asserting, among other things, 23 that Talton had been forced to clean buses containing blood and vomit after other employees had 24 refused to do so. Fourth, approximately one month after Talton filed his first EEOC charge, an 25 unidentified person called him a "nigger" and threw a brick at him.

3. District Court Proceedings

2 Rivera and Talton jointly filed an amended complaint in May 2008 and, after discovery, 3 Tiberio and RGRTA moved jointly for summary judgment. The District Court granted the 4 motion as to both plaintiffs, concluding that the harassment that Rivera allegedly experienced 5 arose from a personal conflict rather than Rivera's national origin, and that Talton had presented 6 evidence only of "isolated incidents of crude and offensive language taking place over a period 7 of several years." Rivera v. Rochester Genesee Reg'l Transp. Auth., 761 F. Supp. 2d 54, 58 8 (W.D.N.Y. 2011). After concluding that the plaintiffs could not "establish adverse employment 9 actions, or a causal connection between those actions and their protected activity," the court also 10 dismissed both plaintiffs' retaliation claims. Id.

Both plaintiffs timely appealed.

DISCUSSION

1. Standard of Review

14 We review an award of summary judgment de novo. See Gorzynski v. JetBlue Airways 15 Corp., 596 F.3d 93, 101 (2d Cir. 2010). Summary judgment is appropriate "only where, 16 construing all the evidence in the light most favorable to the non-movant and drawing all 17 reasonable inferences in that party's favor, 'there is no genuine issue as to any material fact and . 18 . . the movant is entitled to judgment as a matter of law,'" McBride v. BIC Consumer Prods. 19 Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009) (quoting Fed. R. Civ. P. 56(c)); see Guilbert v. 20 Gardner, 480 F.3d 140, 145 (2d Cir. 2007) ("A genuine issue exists for summary judgment 21 purposes where the evidence, viewed in the light most favorable to the nonmoving party, is such 22 that a reasonable jury could decide in that party's favor.") (quotation marks omitted). Although 23 summary judgment is proper where there is "nothing in the record to support plaintiff's 24 allegations other than plaintiff's own contradictory and incomplete testimony," Jeffreys v. City 25 of New York, 426 F.3d 549, 555 (2d Cir. 2005), district courts should not "engage in searching, 1 skeptical analyses of parties' testimony in opposition to summary judgment," Rojas v. Roman 2 Catholic Diocese of Rochester, 660 F.3d 98, 106 (2d Cir. 2011).

2. Hostile Work Environment

4 "In order to establish a hostile work environment claim under Title VII, a plaintiff must 5 produce enough evidence to show that 'the workplace is permeated with discriminatory 6 intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of 7 the victim's employment and create an abusive working environment.'" Gorzynski, 596 F.3d at 8 102 (quoting Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006)).*fn4 In considering whether a 9 plaintiff has met this burden, courts should "examin[e] the totality of the circumstances, 10 including: the frequency of the discriminatory conduct; its severity; whether it is physically 11 threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes 12 with the victim's [job] performance." Hayut v. State Univ. of N.Y., 352 F.3d 733, 745 (2d Cir. 13 2003) (quotation marks omitted). Moreover, the "test has objective and subjective elements: the 14 misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive 15 work environment, and the victim must also subjectively perceive that environment to be 16 abusive." Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (quotation marks omitted). Of 17 course, "[i]t is axiomatic that mistreatment at work, whether through subjection to a hostile 18 environment or through [other means], is actionable under Title VII only when it occurs because 19 of an employee's . . . protected characteristic," such as race or national origin. Brown v. 20 Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (emphasis added).

21 With these principles in mind, and recognizing that there is no genuine dispute that 22 Rivera and Talton each subjectively perceived his environment to be hostile and abusive, we 23 review the hostile work environment claims of each plaintiff.

a. Rivera

2 Rivera presented evidence that Folino, sometimes alone and sometimes with other Lift 3 Line mechanics, harassed him based on his national origin and in a manner that interfered with 4 his ability to do his job. We therefore disagree with the able and experienced District Judge that 5 Rivera did not present any genuine dispute of material fact regarding whether the mistreatment 6 included ethnic slurs or otherwise reflected ethnic animus.

7 We recognize, however, that this is a close call. From 2003 to 2007, Rivera filed several 8 complaints with RGRTA's Human Resources Department regarding Folino's conduct, none of 9 which referenced Folino's use of ethnic slurs or harassment based on national origin. Indeed, 10 Rivera's testimony that Folino and others chronically directed ethnic slurs at him is somewhat 11 belied by his early assertions that the "hostile work environment" he experienced was a result of 12 his personal conflict with Folino. For example, one of Rivera's complaints explicitly attributed 13 Folino's harassment to their personal conflict, and criticized Folino for "bring[ing] these very 14 personal issues to work . . . causing a very uncomfortable and hostile work environment." 15 Rivera's NYSDHR complaint, which, in contrast to prior complaints, asserted that Folino's 16 conduct constituted national origin discrimination, again made no reference to Folino's use of 17 ethnic slurs or other ethnically based harassment. If the instances of ethnic name-calling were 18 "sufficiently severe or pervasive to alter the conditions of [Rivera's] employment and create an 19 abusive working environment," Gorzynski, 596 F.3d at 102 (quotation marks omitted), it is 20 reasonable to expect Rivera to have adverted to them at least once in his lengthy correspondence 21 with RGRTA's Human Resources Department as well as the NYSDHR. 22 Still, this issue is left for the jury to decide at trial, since Rivera's deposition testimony 23 about Folino's use of ethnic slurs was not conclusory, and a reasonable jury could credit Rivera's 24 testimony on this point, and discount the evidence demonstrating that Folino's harassment was 25 not on account of Rivera's national origin. See Redd v. N.Y. Div. of Parole, 678 F.3d 166, 178 26 (2d Cir. 2012). We arrive at this conclusion for three reasons.

1 First, Rivera testified that Folino or Driscoll called him "spic" "probably like three 2 times." Although Rivera was unable to provide information about the specific timing and 3 circumstances of these "spic" slurs, he testified more specifically that Folino and Driscoll 4 together chanted another slur -- "What's that smell . . . there is Taco Bell" -- at least once after 5 Rivera pulled into a Lift Line garage. Rivera variously testified that he heard the same chant 6 anywhere from "[e]very time" he pulled into the garage to "about five" times. We are obliged to 7 consider the defendants' alleged uses of slurs "cumulatively in order to obtain a realistic view of 8 the work environment," Aulicino v. N.Y.C. Dep't of Homeless Servs., 580 F.3d 73, 83 (2d Cir. 9 2009) (quotation marks omitted), and to determine whether they "alter[ed] the conditions of 10 [Rivera's] employment and create[d] an abusive working environment," Gorzynski, 596 F.3d at 11 102 (quotation marks omitted). Second, Rivera's testimony was corroborated by Talton's 12 deposition testimony, and that of other non-party witnesses who provided evidence about 13 ethnically and racially hostile comments made outside of Rivera's presence, both about Rivera 14 and about Talton. See Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) ("The 15 district court appears to have reasoned that because only the first four incidents occurred 'in the 16 plaintiff's presence,' only those four are relevant to this action. The district court's failure to 17 consider the totality of the circumstances in this case, including its selective treatment of the 18 evidence in the record, was in error and necessitates reversal." (internal citations omitted)); Perry 19 v. Ethan Allen, Inc., 115 F.3d 143, 150-51 (2d Cir. 1997) ("Since one of the critical inquiries 20 with respect to a hostile environment claim is the nature of the environment itself, evidence of 21 the general work atmosphere is relevant."). Third, in addition to the evidence of the use of 22 ethnic slurs, Rivera offered detailed testimony about extensive bullying and physical harassment 23 by Folino and others that occurred during the relevant period. A reasonable jury could conclude 24 that the alleged incidents of harassment in the record, including the slurs, constituted more than 25 "mere offensive utterance[s]." Hayut, 352 F.3d at 745; see Richardson v. N.Y. State Dep't of 1 Corr. Serv., 180 F.3d 426, 437 (2d Cir. 1999), abrogated on other grounds by Burlington N. & 2 Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) ("Burlington Northern").*fn5

Rivera's harassment claim does not present circumstances like those found appropriate 4 for summary judgment in Jeffreys and Rojas. In Jeffreys, for example, we held that summary 5 judgment was proper where the plaintiff's case relied entirely on self-serving testimony and, 6 prior to giving that testimony, the plaintiff made "multiple admissions" that were "inconsistent 7 with his later testimony" and that he "failed to explain away" with "any plausible explanation." 8 426 F.3d at 555 n.2 (quotation marks omitted). The plaintiff, Percy Jeffreys, brought suit against 9 several police officers who allegedly assaulted him with a flashlight before throwing him out of a 10 third-story window. Jeffreys's account of the incident at his deposition differed on all points 11 from several accounts that Jeffreys gave shortly after the incident happened. On at least three 12 occasions Jeffreys "confessed to having jumped out of the third-story window," and made "no 13 mention of any police misconduct." Id. at 552. Similarly, "[a]t his arraignment, guilty plea, and 14 sentencing, Jeffreys . . . made no mention of any beating or defenestration," id., and medical 15 records also appeared to belie his claim, id. at 552-53. During his deposition testimony, 16 moreover, Jeffreys was unable to provide any specific details about the incident, and the 17 testimony was corroborated only by two family members who submitted affidavits that 18 established, at best, what Jeffreys had told them about the incident sometime after it occurred. 19 Id. at 553. We concluded that "[i]n the circumstances presented in the instant case -- where (1) 20 the District Court found nothing in the record to support plaintiff's allegations other than 21 plaintiff's own contradictory and incomplete testimony, and (2) the District Court, even after 22 drawing all inferences in the light most favorable to the plaintiff, determined that no reasonable 1 person could believe Jeffreys'[s] testimony, . . . the District Court did not err by awarding 2 summary judgment." Id. at 555 (alteration in original) (quotation marks omitted); see also 3 Rojas, 660 F.3d at 105 (summary judgment properly granted to defendants where plaintiff 4 "relied almost entirely on her own testimony," which was contradicted by "contemporaneous 5 letters and meeting notes" suggesting that the plaintiff had complained only of "general friction" 6 with her supervisor, as opposed to sexual harassment).*fn6 7 Here, by contrast, Rivera does not allege the occurrence of something that he previously 8 described as not happening. He claimed ethnic discrimination in his 2007 complaint to the 9 administrative agency, as was required for purposes of exhaustion. In his administrative and 10 court assertions he has not been inconsistent in claiming that he was subjected to ethnic slurs.

11 Any variance in those assertions has been in the number of times he was subjected to such slurs. 12 That Rivera did not complain of ethnic slurs to RGRTA may lead a factfinder to find that claim 13 not credible, but there is no real, unequivocal, and inescapable contradiction of the sort we 14 contemplated in Jeffreys and Rojas, and matters of credibility are not to be determined on a 15 motion for summary judgment. In addition, unlike in Jeffreys or Rojas, Rivera's testimony was 16 corroborated by other independent evidence, including the testimony of Talton. 17 Further, although RGRTA and Tiberio suggest that Rivera lacked detailed direct 18 evidence of a hostile work environment based on his national origin, his testimony and Talton's 19 testimony provided that evidence. We have cautioned that a hostile work environment claim 20 need not be supported by direct evidence of explicit racial harassment. Circumstantial evidence 21 may do. See Raniola v. Bratton, 243 F.3d 610, 621-22 (2d Cir. 2001) (explaining that a hostile 22 work environment plaintiff may prevail by adducing "circumstantial proof that . . . adverse 23 treatment that was not explicitly sex-based was, nevertheless, suffered on account of sex"). Nor 1 was Rivera required to demonstrate that his national origin was the only motivating factor. He 2 needed to show only that "a reasonable fact-finder could conclude that race [or national origin] 3 was a motivating factor in the harassment." See Terry v. Ashcroft, 336 F.3d 128, 150 (2d Cir. 4 2003) (emphasis added). Here, there was (barely) enough evidence -- both the use of of ethnic 5 slurs and the broader bullying and physical harassment -- from which a reasonable jury could 6 find that Folino harassed Rivera not merely because of their personal history, but also because 7 Rivera was Puerto Rican.*fn7 Raniola, 243 F.3d at 622. Considering that evidence, together with 8 the evidence of a racially hostile work environment for Talton, his co-worker, in the light most 9 favorable to Rivera, and resolving all ambiguities in his favor, we conclude that the District 10 Court erred in granting summary judgment to the RGRTA on Rivera's hostile work environment 11 claim.

b. Talton

13 Talton gave detailed and uncontradicted testimony indicating both that his supervisor 14 directed the word "nigger" at him, and that co-workers directed the word at him in a physically 15 threatening manner. For example, he specifically recounted that his co-worker, John Stiggins, 16 called him a "nigger" on at least two occasions, and that both times Stiggins threatened him with 17 physical violence, once by saying, "We could do this right here," and another time by 18 referencing a co-worker's statement that he "wished all you niggers died." Similarly, Talton 19 testified that another co-worker, Mingo Sanhueza, called him a "nigger" and threatened him 20 physically by shaping his hand in the form of a gun. In addition, Talton testified that Tiberio, his 21 supervisor, called him a "nigger," and that Tiberio also told him to "get over it" when Talton 22 complained about racial harassment by co-workers. The claim involving Tiberio was consistent 23 with Talton's May 2006 EEOC charge, in which he alleged that Tiberio had responded to his 24 complaints of racial harassment by telling him to "suck it up and get over it, nigger!"

1 The defendants contend that Talton's hostile work environment claim was properly 2 dismissed because, among other things, he was unable to provide enough details regarding 3 Tiberio's use of any racial slur. We disagree. Although it is true that Talton could not recall 4 certain details of this incident during his deposition testimony, he provided enough details, 5 which were supported by contemporaneous evidence in the form of an EEOC charge filed 6 against Lift Line. A reasonable factfinder could conclude that Tiberio and other RGRTA 7 employees directed the racial slur at Talton. See Richardson, 180 F.3d at 439-40 (vacating grant 8 of summary judgment where plaintiff presented detailed evidence that her supervisor and several 9 co-workers used racial slurs); cf. Singletary v. Mo. Dep't of Corr., 423 F.3d 886, 893 (8th Cir. 10 2005) (supervisor's use of racial epithets not sufficient to create racially hostile work 11 environment in violation of Title VII when none of the comments were made directly to African- 12 American employee). We emphasize that "[p]erhaps no single act can more quickly alter the 13 conditions of employment and create an abusive working environment than the use of an 14 unambiguously racial epithet such as 'nigger' by a supervisor in the presence of his 15 subordinates." Richardson, 180 F.3d at 439 (quoting Rodgers, 12 F.3d at 675) (quotation marks 16 omitted). The use of racially offensive language is particularly likely to create a hostile work 17 environment when, as here, it is presented in a "physically threatening" manner. Hayut, 352 18 F.3d at 745.

With that in mind, whether the conduct taken together created a work environment that 20 was sufficiently hostile to violate Title VII is a question of fact for the jury. Redd, 678 F.3d at 21 178. Taking the evidence in the light most favorable to Talton and accepting his version of the 22 events as true, we conclude that the District Court erred in dismissing Talton's hostile work 23 environment claims against RGRTA pursuant to Title VII and against Tiberio pursuant to 42 24 U.S.C. § 1981. See Patterson v. Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (recognizing 1 that individuals may be held liable under § 1981 for intentionally discriminatory acts, including 2 those giving rise to a hostile work environment).*fn8

3. Retaliation Claims

4 Rivera and Talton also appeal the District Court's dismissal of their retaliation claims. 5 At the outset, we note that in order to prevail on a retaliation claim, "the plaintiff need not prove 6 that h[is] underlying complaint of discrimination had merit," Lore v. City of Syracuse, 670 F.3d 7 127, 157 (2d Cir. 2012), but only that it was motivated by a "good faith, reasonable belief that 8 the underlying employment practice was unlawful," Reed v. A.W. Lawrence & Co., 95 F.3d 9 1170, 1178 (2d Cir. 1996) (quotation marks omitted). The good faith and reasonableness of the 10 plaintiffs' beliefs that they were subjected to discrimination is not an issue on this appeal. 11 Title VII's antiretaliation provision prohibits an employer from discriminating against an 12 employee for opposing any practice made unlawful by Title VII. Burlington Northern, 548 U.S. 13 at 59-60. To establish a prima facie case of unlawful retaliation under Title VII, "an employee 14 must show that (1) []he was engaged in protected activity; (2) the employer was aware of that 15 activity; (3) the employee suffered a materially adverse action; and (4) there was a causal 16 connection between the protected activity and that adverse action." Lore, 670 F.3d at 157. The 17 requirement of a materially adverse employment action reflects the principle that "Title VII does 18 not protect an employee from 'all retaliation,' but only 'retaliation that produces an injury or 19 harm.'" Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 569 (2d Cir. 2011) 20 (quoting Burlington Northern, 548 U.S. at 67).

1 In Burlington Northern, the Supreme Court described a "material adverse action" as 2 follows: "a plaintiff must show that a reasonable employee would have found the challenged 3 action materially adverse, which in this context means it well might have dissuaded a reasonable 4 worker from making or supporting a charge of discrimination." Burlington Northern, 548 U.S. 5 at 68 (citation and quotation marks omitted); see also Kessler v. Westchester Cnty. Dep't of Soc. 6 Servs., 461 F.3d 199, 207 (2d Cir. 2006) (noting that Burlington Northern announced a different 7 standard of material adversity than that previously employed in this Circuit in, for example, 8 Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004)). Still, "[a]ctions that are 9 'trivial harms' -- i.e., 'those petty slights or minor annoyances that often take place at work and 10 that all employees experience'--are not materially adverse." Tepperwien, 663 F.3d at 568 11 (quoting Burlington Northern, 548 U.S. at 68).*fn9

12 In reviewing a grant of summary judgment, therefore, we are mindful that material 13 adversity is to be determined objectively, based on the reactions of a reasonable employee. 14 Burlington Northern, 548 U.S. at 69-70. But "'[c]ontext matters,' as some actions may take on 15 more or less significance depending on the context," Tepperwien, 663 F.3d at 568 (quoting 16 Burlington Northern, 548 U.S. at 69), and "[a]lleged acts of retaliation must be evaluated both 17 separately and in the aggregate, as even trivial acts may take on greater significance when they 18 are viewed as part of a larger course of conduct," id.

19 As a threshold matter, we note that in concluding that both plaintiffs' retaliation claims 20 should be dismissed because neither "allege[d] any adverse employment action occurring prior 21 to his initial engagement in protected activity," Rivera, 761 F. Supp. 2d at 58, the District Court, 22 no doubt inadvertently, misstated the applicable law. Title VII does not require that a causal 23 connection exist between a protected activity and an adverse employment action that occurred 24 before that activity. In any event, the defendants do not dispute that both Rivera and Talton 1 engaged in protected activity -- Rivera by filing a complaint with the NYSDHR,*fn10 and Talton by 2 complaining to management and filing a series of EEOC charges -- and that they at least alleged 3 that some material adverse employment action occurred thereafter.

a. Rivera

5 Despite the District Court's misstatement, we conclude that Rivera's retaliation claim 6 was properly dismissed. Rivera did not present evidence of any discrete actions that "well might 7 have dissuaded a reasonable worker from making or supporting a charge of discrimination" after 8 he filed his charge of discrimination with the New York State Department of Human Resources 9 in March 2007. In urging otherwise, Rivera points to two disciplinary citations he received for 10 insubordination over a two-year period, his assignment to drive particularly "dirty buses," one 11 late overtime payment, and Lift Line's one-time refusal to give him a half-day off for a doctor's 12 appointment.

13 Although there is some dispute about whether Rivera received one or two citations for 14 insubordination,*fn11 he presented no evidence that they reflected anything other than RGRTA's 15 "enforce[ment] [of] its pre-existing disciplinary policies in a reasonable manner." See Brown v. 16 City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012) (quotation marks omitted). Rivera testified 17 that one of the citations came about after he refused to attend a meeting with RGRTA managers 18 without his preferred union representative, rather than a union representative who had been 19 selected for him. Rivera also testified that he received the second citation after he again refused 1 to attend a meeting with one or more of his supervisors. Without more, no reasonable jury could 2 conclude that these acts of discipline, either alone or in conjunction with the other acts of 3 retaliation Rivera alleges, represented a departure from Lift Line's normal disciplinary practices, 4 such that they might have "dissuaded a reasonable worker from making or supporting a charge of 5 discrimination." Burlington Northern, 548 U.S. at 68 (quotation marks omitted).*fn12 6 Accordingly, we affirm the District Court's grant of summary judgment to the defendants 7 on Rivera's retaliation claim.

b. Talton

9 By contrast, we disagree with the District Court insofar as it also granted summary 10 judgment to the defendants on Talton's retaliation claim. Talton presented evidence, in the form 11 of deposition testimony, that Tiberio suggested that he could lose his job for filing complaints of 12 discrimination. Talton's testimony echoed a previously filed EEOC charge in which he alleged 13 that Tiberio had once indicated "that [Talton] could get fired for the filing of the EEOC charge" 14 and "said that 'this is you[r] job too.'" A reasonable juror could find both that Tiberio threatened 15 Talton with the loss of his job, and that this threat would "dissuade[] a reasonable worker from 16 making or supporting a charge of discrimination." Burlington Northern, 548 U.S. at 68 17 (quotation marks omitted).

18 Talton also presented evidence that when he complained to Tiberio about his co-workers' 19 use of racial slurs, Tiberio told him to "suck it up and get over it, nigger!" In our view, such 20 discriminatory harassment from a supervisor may alone suffice to establish an adverse 21 employment action, as "unchecked retaliatory co-worker harassment, if sufficiently severe, may 22 constitute adverse employment action so as to satisfy the [third] prong of the retaliation prima 23 facie case." Richardson, 180 F.3d at 446.

1 In contrast to the evidence of Tiberio's harassing response to Talton's complaints was the 2 evidence of Lift Line's almost immediate response to Stiggins's and Ayala's complaints that 3 Talton had made disturbing comments and "false accusations" in the workplace. Very shortly 4 after those complaints were made against Talton, who had recently filed his EEOC charges, 5 Himmelsbach, the Vice President of Regional Operations for RGRTA, arranged a meeting 6 during which she admonished Talton. A record of the meeting was maintained in Talton's 7 personnel file. Based on the disputed record before us, a reasonable juror could infer that 8 RGRTA's swift response to the complaints by Talton's co-workers was designed to, and did, 9 send a message that Talton's employment at Lift Line was in serious jeopardy as a result of the 10 EEOC charges. See Burlington Northern, 548 U.S. at 72-73 (action is materially adverse where 11 plaintiff "fac[es] the choice between retaining her job . . . and filing a discrimination 12 complaint").

13 Accordingly, we vacate the District Court's grant of summary judgment in favor of the 14 defendants on Talton's retaliation claim against RGRTA, and also vacate its grant of summary 15 judgment dismissing Talton's retaliation claim against Tiberio under Section 1981. See Hicks v. 16 Baines, 593 F.3d 159, 162-64 (2d Cir. 2010) (retaliation claims may also be asserted against 17 individuals pursuant to Section 1981). 18 4. Supplemental Jurisdiction over State Law Claims 19 Because, as discussed above, we vacate the District Court's dismissal of Talton's federal 20 claims under Title VII and Section 1981, we also vacate the judgment of the District Court 21 dismissing Talton's state law claims. "[W]e have held that 'the discretion to decline 22 supplemental jurisdiction is available only if founded upon an enumerated category of [28 23 U.S.C. § 1367(c)].'" Treglia v. Town of Manlius, 313 F.3d 713, 723 (2d Cir. 2002) (quoting 24 Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 448 (2d Cir. 1998) 25 (alteration in Treglia)). In view of our decision, we see no basis under that statute for declining 26 to exercise supplemental jurisdiction: the state-law discrimination claim does not "raise[] a novel 1 or complex issue of State law," does not "substantially predominate[] over the claim or claims 2 over which the district court has original jurisdiction," and does not present "exceptional 3 circumstances" leading to "other compelling reasons for declining jurisdiction." 28 U.S.C. § 4 1367(c)(1), (2) & (4). Under these circumstances, "[t]he district court . . . should retain 5 jurisdiction over the state discrimination claim." Treglia, 313 F.3d at 723. For the same reasons, 6 we vacate the summary dismissal of Rivera's state law hostile work environment claim. But we 7 affirm the judgment of the District Court dismissing Rivera's claim of retaliation under state law 8 for the same reasons that we do so with respect to his federal retaliation claim. See Salamon v. 9 Our Lady of Victory Hosp., 514 F.3d 217, 226 n.9 (2d Cir. 2008) ("We typically treat Title VII 10 and NYHRL discrimination claims as analytically identical, applying the same standard of proof 11 to both claims."); Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 609 (2d Cir. 2006).

13 For the foregoing reasons, we AFFIRM the District Court's judgment with respect to 14 Enio Rivera's claims of retaliation, VACATE the District Court's judgment with respect to 15 Rivera's hostile work environment claims and Michael Talton's claims, and REMAND for 16 further proceedings consistent with this opinion.

CONCLUSION


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