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Johnson v. IAC/Interactive Corp.

United States District Court, S.D. New York

February 25, 2014

IAC/INTERACTIVE CORP. and Connected Ventures, Defendants

Decided February 24, 2014

Page 505

For Plaintiff: Sandra D. Parker, Esq., Law Office of Sandra D. Parker, New York, NY.

For Defendants: Michele A. Coyne, Esq., Shelby A. Silverman, Esq., Kauff McGuire & Margolis LLP, New York, NY.


Page 506



Plaintiff Tiffani Johnson, a former employee of humor website, brings this action alleging racial

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discrimination in violation of 42 U.S.C. § 1981 (" § 1981" ) and the New York City Human Rights Law (" NYCHRL" ). Plaintiff specifically claims that defendants engaged in racial discrimination culminating in her termination, subjected her to a hostile work environment, and undertook unlawful retaliation. Now pending before the Court is defendants' motion for summary judgment. For the reasons stated herein, this Court grants defendants' motion as it relates to the claims brought pursuant to § 1981 and dismisses without prejudice the NYCHRL claims.


I. Rule 56.1 Statement

Local Civil Rule 56.1 calls for a summary judgment movant to submit " a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried," and for the opposing party to submit " a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried." If the opposing party then fails to controvert a fact set forth in the movant's Rule 56.1 statement, that fact will be deemed admitted pursuant to the local rule. Local R. 56.1(c); see also Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003).

Plaintiff's Rule 56.1 response fails to comply with the spirit, if not the letter, of the rule. Plaintiff's counter statement contains numerous unsubstantiated denials of incontrovertible material, such as the date of plaintiff's termination and direct quotations from contemporaneous documents. See, e.g., Pl. R. 56.1 Ctr. Stmt. ¶ ¶ 26-35, 45-46. Plaintiff also groundlessly denies basic and irrefutable information on the defendants' corporate structure, derived from the declaration of CollegeHumor's former General Counsel. Pl. R. 56.1 Ctr. Stmt. ¶ ¶ 1-3. Because plaintiff's response abounds with extensive extraneous argumentation that fails to properly controvert defendants' statements, the Court

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is unable to fully utilize it for its intended purpose. See Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 74 (2d Cir. 2001) (" The purpose of Local Rule 56.1 is to streamline the consideration of summary judgment motions by freeing district courts from the need to hunt through voluminous records without guidance from the parties." ). This Court is, however, mindful that " [t]he local rule does not absolve the party seeking summary judgment of the burden of showing that it is entitled to judgment as a matter of law, and a Local Rule 56.1 statement is not itself a vehicle for making factual assertions that are otherwise unsupported in the record." Giannullo, 322 F.3d at 140 (quoting Holtz, 258 F.3d at 74). Accordingly, to the extent the Court relies upon uncontroverted paragraphs of Defendant's Rule 56.1 Statement, we do so only where the record evidence duly supports defendants' contentions.

II. Factual Allegations

Plaintiff Tiffani Johnson is an African-American graphic designer and video editor based in New York City. She holds a Bachelor of Arts degree in Broadcast Journalism from Hampton University and a Master of Science Degree in Digital Imaging and Design from New York University. Johnson Decl. ¶ 3. Prior to the events at issue in the instant suit, Johnson had developed professional experience in the graphic design and video editing field via a number of industry engagements and had also held the position of adjunct professor at New York City College of Technology, of the City University of New York, for the spring 2010 semester, during which she taught a course in digital production. Johnson Decl. ¶ ¶ 7-13.

Defendant Connected Ventures owns and operates, which produces video content for distribution on its site and elsewhere. Defs. R. 56.1 ¶ ¶ 2, 3. Defendant IAC/Interactive Corp. is Connected Ventures' parent company. Defs. R. 56.1 ¶ 1. In recruitment literature accessed by the plaintiff, CollegeHumor self-identified as " a leading online entertainment company targeting a core audience of people ages 18-49 . . . deliver[ing] daily comedic content, including videos, pictures, articles and jokes." Johnson Decl. Ex. C. The type of humor produced by CollegeHumor was admittedly " raunchy," (Tr. at 32) and certain video content was explicitly racial in nature, encompassing in some instances racially insensitive dialogue and even epithets. Defs. R. 56.1 ¶ ¶ 66-67; Johnson Decl. ¶ 67.

In or about June 2010, plaintiff Tiffani Johnson responded to an online advertisement for employment posted by the defendant, seeking a video editor for Johnson Decl. Ex. C; Compl. ¶ 18. Plaintiff interviewed with David Fishel, then-Director of Post-Production for CollegeHumor, and Michael Schaubach, Fishel's successor as Director of Post-Production and himself a former CollegeHumor video editor. Defs. R. 56.1 ¶ ¶ 4, 12; Pl. R. 56.1 Ctr. Stmt. ¶ 12. In August 2010, plaintiff was hired as a video editor, joining a Post-Production Department comprised of three or four video editors, several video directors and writers, Post-Production producer Lacy Wittman, and Director of Post-Production Schaubach, who in turn reported to Sam Reich, CollegeHumor's President of Original Content.[2] Defs. R. 56.1 ¶ ¶ 4, 11, 12, 20; Pl. R. 56.1 Ctr. Stmt. ¶ 4.

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As video editor, plaintiff was assigned discrete video editing projects, for which she assumed the responsibility of creating the initial version or " cut," which included editing the story and sequence of the video. Defs. R. 56.1 ¶ ¶ 15-16. The first cut would then enter CollegeHumor's editorial process, in which first Schaubach and then the video's director would provide feedback known as " notes," which plaintiff would incorporate into subsequent cuts of the video and then recirculate for further review. Defs. R. 56.1 ¶ ¶ 7-10, 17-19. On various occasions, plaintiff personally received notes from Director of Post-Production Schaubach, her direct supervisor, in addition to Post-Production producer Wittman, directors Matt Pollock, Josh Ruben and Vincent Peone, and writers Dan Gurewitch, Sarah Schneider, Jake Horowitz, Amir Blumenfeld, and Streeter Seidell. Defs. R. 56.1 ¶ 20. After all notes were incorporated, President of Original Content Reich reviewed and approved the final video for posting on CollegeHumor's website. Defs. R. 56.1 ¶ 11.

In early January 2011, writer Sarah Schneider provided via email notes and generally positive feedback (e.g., " [l]ooking good" ) on a video project edited by Johnson. Johnson Supp. Decl. Ex. NNN. Among other comments, Schneider suggested, " the line 'with so much that can still go wrong' needs to be rerecorded (currently it's like ghetto cut)." Id. Within the hour, Schaubach, a recipient of Schneider's email, notified Reich of his " concern" with Schneider's use of the term " ghetto cut," further explaining, " Maybe nothing will come of this, I certainly don't want to blow this out of proportion, but I just wanted you to be aware that this was out there and could potentially be an issue." Parker Decl. Ex. RR. Reich replied to ask, " What does 'ghetto cut' mean?" but Schaubach testified that he never learned what Schneider had meant by that term. Id.; Schaubach Dep. at 11. In feedback for the same video project, writer David Young clarified a previous misidentification of a character, writing to a group of six, including Johnson, " Haha looks like I am racist. I meant Jordan." Defs. R. 56.1 ¶ 54; Parker Decl. Ex. SS.

In March 2011, Schaubach notified Reich via email that, in his estimation, plaintiff's " abilities as an editor are not up to the caliber that is needed for the editor position." Defs. R. 56.1 ¶ 26; Silverman Decl. Ex. 7. Citing weak editing skills and insufficient improvement over her seven months on the job, Schaubach wrote, " It saddens me to say, but my recommendation is to let Tiffani go and find a more suitable replacement." Id.

Reich solicited and received opinions on Johnson's performance from others who had reviewed her work, including directors Pollock and Ruben. Both directors agreed that Johnson " doesn't quite have the skill set that it takes to be an editor at C[ollege]H[umor]." Defs. R. 56.1 ¶ 29; Silverman Decl. Ex. 11. Pollock explained deficiencies in Johnson's speed, proficiency, and " comic sensibilities," particularly in comparison with other CollegeHumor video editors. Defs. R. 56.1 ¶ 29; Silverman Decl. Ex. 11. Ruben echoed similar complaints: " My dissatisfaction lies largely with her pace as an editor as well as her sensibilities which are lackluster . . . she exhibits strong vision but doesn't have the skill set to ...

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