United States District Court, S.D. New York
OPINION AND ORDER
JESSE M. FURMAN, District Judge.
Plaintiff Norberto Lugo, proceeding pro se, sues his former employer, Defendant Le Pain Quotidien ("LPQ"), under Title VII of the Civil Rights Act of 1964 ("Title VII"), Title 42, United States Code, Section 2000e et seq., and the Age Discrimination in Employment Act (the "ADEA"), Title 29, United States Code, Section 621 et seq. LPQ now moves for summary judgment. For the reasons stated below, Defendant's motion is granted and Plaintiff's Complaint is dismissed in its entirety.
When considering a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party. See Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004). In light of this duty and mindful of the Court's obligation to grant "special solicitude" to pro se litigants who oppose motions for summary judgment, Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988), the Court has considered the evidence in the record despite Plaintiff's failure to submit a statement pursuant to Local Civil Rule 56.1. See Wali v. One Source Co., 678 F.Supp.2d 170, 178 (S.D.N.Y. 2009) ("[W]here a pro se plaintiff fails to submit a proper Rule 56.1 statement in opposition to a summary judgment motion, the Court retains some discretion to consider the substance of the plaintiff's arguments, where actually supported by evidentiary submissions." (citing Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001))). Except where noted, the following facts are undisputed.
LPQ owns and operates a chain of "bakery-cafes." (Decl. Leslie Ferrier (Docket No. 38) ("Ferrier Decl.") ¶ 3). LPQ hired Plaintiff, who is Puerto Rican, as a porter at one of its cafes in November 2006. (Decl. Brian Noonan, Esq. (Docket Nos. 41-43) ("Noonan Decl."), Ex. C ("Lugo Dep.") 16; Compl. (Docket No. 2) 4). As a porter, Plaintiff's responsibilities included cleaning and stocking the cafe, making catering deliveries, and other miscellaneous tasks. (Decl. Mario Vasquez (Docket No. 40) ("Vasquez Decl.") ¶¶ 4, 23; see Ferrier Decl. ¶ 5). Plaintiff's first several years at LPQ appear to have been positive and certainly without incident. He received multiple raises, from $8.50 per hour to $10.25 per hour and finally to $11.00 per hour - the upper limit for porters, making Plaintiff among the highest paid employees at his position. (Lugo Dep. 91; Ferrier Decl. ¶¶ 17-18). In addition, Ivan Jimenez - the cafe's then-general manager, who is Dominican -gave Plaintiff at least one positive performance evaluation. (Noonan Decl., Ex. E; Lugo Dep. 125-29; id. at 62-63, 66-67).
At some point in 2011 or 2012, however, Plaintiff started having problems with Jimenez, and came to the conclusion that Jimenez wanted to terminate him. (Lugo Dep. 208-09; Compl. 7). In particular, Plaintiff felt that Jimenez was being "very disrespectful" and treating him as if he was a "nobody." (Lugo Dep. 210, 212). Around the same time, Plaintiff also noticed that his paychecks were missing some of the tips he had received from his catering deliveries. (Id. at 252, 265-66, 427, 429). Plaintiff then complained about the missing tips as well as his problems with Jimenez to Ryan Kilgariff, LPQ's district manager. (Affirmation Opp'n Mot. (Docket No. 44) ("Lugo Affirmation") 3; Lugo Dep. 316-18). At some point, apparently after Plaintiff's conversation with Kilgariff, Jimenez emailed Mario Vasquez and Mykel Gleez, the cafe's assistant managers, and instructed them to make sure that the tips were processed promptly. (Lugo Affirmation, Ex. 2 at 7; Vasquez Decl. ¶ 2; Decl. Mykel Gleez (Docket No. 39) ("Gleez Decl.") ¶ 2). Following Plaintiff's complaint to Kilgariff, LPQ started including Plaintiff's tips in his paychecks again - although it is unclear whether that was before or after Jimenez's email to Vasquez and Gleez. (Lugo Affirmation 3).
In November 2012, Plaintiff took a trip to Puerto Rico. (Lugo Dep. 12). Plaintiff maintains that on or about November 1, 2012, he requested a week off beginning November 19th by placing a note in an envelope on Jimenez's door, which apparently was the standard method by which cafe employees requested vacation time. (Lugo Affirmation 4; Lugo Dep. 145-46, 149-50). LPQ asserts that its employees did not receive the note. (Def. Le Pain Quotidien's Local R. 56.1(a) Statement Undisputed Material Facts (Docket No. 37) ("Def.'s 56.1 Statement") ¶¶ 90, 92, 96, 101). On November 14, 2012 - the Wednesday before Plaintiff planned to leave for Puerto Rico - Vasquez posted a preliminary schedule for the week of November 19th, showing Plaintiff working his usual 7:30 a.m. to 2:00 p.m. shift. (Vasquez Decl. ¶¶ 14-15). Shortly thereafter, Vasquez posted a final schedule listing the same shift for Plaintiff. (Id. ). Plaintiff never contacted Vasquez or any other member of LPQ's management to tell them that he could not work the hours for which he was scheduled. (Id. ¶ 16; Gleez Decl. ¶ 7).
On Saturday, November 17, 2012, another employee informed Vasquez that Plaintiff would be away the following week. (Vasquez Decl. ¶ 17). Later that day, Vasquez called Plaintiff on his cell phone. (Id. ¶ 18). Plaintiff, who was already in Puerto Rico at the time, confirmed that he would not be coming to work that week. (Id. ). When Plaintiff returned to work on November 26, 2012, Jimenez fired him for taking an unauthorized vacation. (Noonan Decl., Ex. F at 1; Ferrier Decl. ¶¶ 9, 12). Following his termination, Plaintiff filed a complaint with LPQ's human resources department, alleging that Jimenez had treated him unfairly and that his termination was improper. (Id. ¶ 9). LPQ upheld Plaintiff's termination after concluding that there was no evidence to support Plaintiff's claim that he provided the cafe's management with notice of his vacation. (Id. ¶ 11). On January 7, 2013, Plaintiff filed simultaneous complaints with the New York State Division of Human Rights ("NYDHR") and the Equal Employment Opportunity Commission ("EEOC"). (Noonan Decl., Exs. I & J). The NYDHR determined that there was no probable cause to sue. ( Id., Ex. K). The EEOC also declined to bring suit on Plaintiff's behalf and issued Plaintiff a notice of right to sue on August 27, 2013. ( Id., Ex. L). This case followed.
Summary judgment is appropriate where the admissible evidence and the pleadings demonstrate "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (per curiam). A dispute over an issue of material fact qualifies as genuine if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); accord Lyons v. Lancer Ins. Co., 681 F.3d 50, 56-57 (2d Cir. 2012). The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In cases such as this one, in which the non-movant bears the burden of proof at trial, "the movant may point to evidence that negates its opponent's claims or... identify those portions of its opponent's evidence that demonstrate the absence of a genuine issue of material fact, a tactic that requires identifying evidentiary insufficiency and not simply denying the opponent's pleadings." Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006) (citing Celotex, 477 U.S. at 323).
As noted, the Court must construe all evidence in the light most favorable to the nonmovant, see LaBounty v. Coughlin, 137 F.3d 68, 71 (2d Cir. 1998) (citing Anderson, 477 U.S. at 247-48), which requires "drawing all reasonable inferences in [the non-movant's] favor, " Nicholas v. Miller, 189 F.3d 191, 193 (2d Cir. 1999) (per curiam) (internal quotation marks omitted). To defeat a summary judgment motion, the non-movant must proffer more than a "scintilla of evidence" in support of his version of events, Anderson, 477 U.S. at 252, and raise more than "some metaphysical doubt as to the material facts, " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Because the non-movant here is pro se, the Court must afford him "special solicitude" in the construction of pleadings and motions and in the enforcement of procedural rules. See Tracy v. Freshwater, 623 F.3d 90, 100-04 (2d Cir. 2010) ("[I]n light of the particular difficulties presented by a motion for summary judgment... a district court errs by failing to advise a pro se litigant of the nature of such a motion and the consequences of failing to respond to it properly."). This special solicitude is not unlimited, however, and does not "relieve [a] plaintiff of [his or her] duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (internal quotation marks omitted). Nor is "the duty to liberally construe a [ pro se ] plaintiff's [filing]... the equivalent of a duty to re-write it." Geldzahler v. N.Y. Med. Coll., 663 F.Supp.2d 379, 387 (S.D.N.Y. 2009) (internal quotation marks omitted).
Plaintiff asserts claims for wrongful termination and retaliation under both Title VII and the ADEA. All four claims are governed by the well-established burden-shifting framework adopted in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012) (noting that the McDonnell Douglas framework applies to discrimination and retaliation claims under Title VII and the ADEA). Under that framework, Plaintiff must first make out a prima facie case in support of his claim. See, e.g., Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010). To establish a prima facie claim in support of his discrimination claims, Plaintiff must show that he "(1) is a member of a protected class; (2) was performing his duties satisfactorily; (3) was discharged; and that (4) his discharge occurred under circumstances giving rise to an inference of discrimination on the basis of his membership in the protected class." Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). To establish a prima facie case in support of his retaliation claims, Plaintiff must show (1) that he was participating in a protected activity known to his employer; (2) that he was subject to an adverse employment action that would deter a reasonable employee from pressing a discrimination claim; and (3) a causal connection between the protected activity and the challenged employment action. See Cox v. Onondaga Cnty. Sheriff's Dep't, 760 F.3d 139, 145 (2d Cir. 2014). "The requirements [of] establish[ing] a prima facie case are minimal and a plaintiff's burden is therefore not onerous." Bucalo, 691 F.3d at 128 (internal quotation marks and citation omitted).
If the plaintiff establishes a prima facie case, "the burden then shifts to the defendant to offer a legitimate nondiscriminatory reason for the termination." Ruiz, 609 F.3d at 492. If the defendant offers such a reason, the burden then shifts back to the plaintiff, who must show that the defendant's proffered reason was pretextual. See, e.g., Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Bucalo, 691 F.3d at 128-29. To do so, Plaintiff must produce "not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely than not discrimination was the real reason" for the challenged actions. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (emphasis added) (internal quotation marks omitted). Moreover, for a retaliation claim, a plaintiff must prove "but-for causation" - that is, "that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer." Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533 (2013). "Put slightly differently, Plaintiff ...