United States District Court, S.D. New York
OPINION AND ORDER
EDGARDO RAMOS, U.S.D.J.
Creacy (“Creacy”) alleges that Defendant BCBG Max
Azria Group, LLC (“BCBG”) subjected her to a racially
hostile work environment in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”), New York
State Human Rights Law (“NYSHRL”), and 42 U.S.C.
§ 1981 (“Section 1981”), and denied her the
use of a place of public accommodation in violation of
NYSHRL. Before the Court is BCBG's motion for summary
judgment seeking dismissal of the Complaint in its entirety.
Doc. 53. For the reasons stated below, BCBG's motion is
is an African-American female who was 28 years old in 2014.
See Pl.'s R. 56.1 Rsp. ¶ 1. Creacy worked
for BCBG, a clothing retailer with more than 651 retail
stores worldwide, from July 2012 to April 2014. Id.
¶¶ 3, 6, 78-79. Some of BCBG's stores are
standalone stores; others are “partner shops”
located inside larger department stores. Id. In June
2012, Creacy began working as a part time stylist in
BCBG's Greenwich, Connecticut store, where she outfitted
customers and assisted the management staff. Id.
¶ 6. In March or April 2013, Creacy received a promotion
and transferred to BCBG's store in Scarsdale, New York,
which was located on the main floor of the Lord & Taylor
store in the Vernon Hills Shopping Center. Id.
December 26, 2013 Encounter with Peng
December 26, 2013, Creacy first encountered customer Lexi
Peng (“Peng”) at the Scarsdale store.
Id. ¶ 15. At the time, Creacy was in charge of
the BCBG shop within L&T and was working with sales
associates Ashley Simon (“Simon”) and Dejahne
Johnson (“Johnson”), both of whom are also
African-American. Id. Creacy was at the register
speaking to Simon and Johnson when she heard Peng-an Asian
woman in her 30s or 40s-yell “move” twice.
Id. ¶ 16. Creacy asked Peng if she was being
helped. Id. ¶ 17. In response, Peng began
yelling and Creacy could not make out everything Peng was
saying. Creacy then asked Peng to give her a second and
turned back to face Simon and Johnson at the register.
Id. Peng proceeded to elbow Creacy, stomp on her
right foot, and yell comments such as: “You people
don't do this, you people don't do right . . . What
are you doing? . . . You people, you need to do this . . .
Hurry up . . . Your job is to serve me . . . You can't be
manager, your kind . . . You call security. They are not
going to do nothing for you people.” Id.
¶ 18. At the same time, Peng pointed to the back of her
own hand showing her skin, which Creacy understood to be a
reference to Creacy's skin color. Deposition of Danielle
Creacy (“Creacy Dep.”) (Doc. 66-1) at 81:8-12.
While Peng was yelling these comments, she was also holding a
clothing hanger in Creacy's face. Pl.'s R. 56.1 Rsp.
called Shannon O'Connell (“O'Connell”),
L&T's loss prevention manager at the Scarsdale store,
to ask for assistance. Id. ¶ 19. Creacy told
O'Connell that Peng was “screaming” and asked
her to remove Peng from the store. Id. ¶ 22.
O'Connell called Jaime LaMorte (“LaMorte”),
the manager for L&T's contemporary department, and
asked her to go to the BCBG location and assess the situation
until O'Connell arrived. Id. ¶ 24. When
O'Connell arrived, she asked Peng to calm down because
her tone was unacceptable and she was creating a scene.
Id. ¶ 26. O'Connell told Peng that if she
did not lower her voice, she would be asked to leave.
the incident, O'Connell took Creacy and Simon to the
stockroom where they discussed the events. Id.
¶ 27. In the stockroom, Creacy told O'Connell that
Peng referred to her as “you people” and
“your kind” and had a problem with her because
she was a black manager. Creacy Dep. at 96:3-97:4;
Certification of Ashley Simon in Support of Charge of
Discrimination (“Simon Cert.”) (Doc. 66-10)
¶¶ 14, 16; see also Deposition of Shannon
O'Connell (“O'Connell Dep.”) (Doc. 66-5)
at 96:25-97:17, 98:21-100:5.
as Creacy left the stockroom, she called Jessica Ramirez
(“Ramirez”), who was serving as the acting
district manager. Pl.'s R. 56.1 Rsp. ¶ 31. Stephanie
Walker (“Walker”), Creacy's direct supervisor
at the time, was on vacation. Id. The parties
dispute whether Creacy told Ramirez that the customer's
aggression was potentially racially motivated. Ramirez
testified that Creacy told her that the customer was
aggressive, but that she did not recall learning that the
situation was racially charged. Deposition of Jessica Ramirez
(“Ramirez Dep.”) (Doc. 66-3) at 42:23-43:9.
Creacy testified that she made it very clear to Ramirez that
Peng hit her and did not like her because she was a black
manager. Creacy Dep. at 106:5-9. Creacy also testified that
Ramirez expressed shock that the customer was able to remain
in the store and continue shopping. Id. at
advised Creacy to send her an email describing the incident,
which Ramirez forwarded to Rick Munoz (“Munoz”)
and Madeline Murray (“Murray”). Pl.'s R. 56.1
Rsp. ¶ 32. At the time, Munoz was BCBG's loss
prevention manager and Murray was a BCBG district manager.
Id. ¶¶ 10, 32. In her email to Ramirez,
Creacy stated that the customer “was very challenging
and aggressive, ” put her hands on Creacy, and caused
her to feel unsafe. Id. ¶ 33; Doc. 56-15. The
email made no reference to race, however. See Doc.
56-15. Munoz and Murray never responded to Ramirez's
email. See Ramirez Dep. at 44:15-24; 49:8-11; 51:14-
same day, December 26, 2014, O'Connell also called Munoz
about the incident and advised him regarding Creacy's
allegations-including that Peng struck Creacy and made racial
comments to her. O'Connell Dep. at 127:16-128:12. Munoz
spoke with Creacy three days later, claimed not to have
received Ramirez's email, but assured Creacy that he
would partner with Murray, talk to O'Connell, and get
back to Creacy. Creacy Dep. at 118:20-119:6. However, Munoz
did not contact Murray. Deposition of Madeline Murray
(“Murray Dep.”) (Doc. 66-2) at 75:2-6;
103:7-104:7; 148:21-149:2. On December 28, 2014, when Walker
returned from vacation, Creacy told her about the incident
with Peng, including that she believed Peng's harassment
was racially motivated. Pl.'s R. 56.1 Rsp. ¶ 34;
Simon Cert. ¶ 17 (noting Simon also told Walker
“it is because [Danielle] is black, that's why she
January 5, 2014 Encounter with Peng
January 5, 2014, Peng returned to the Scarsdale L&T store
while Creacy was working. Pl.'s R. 56.1 Rsp. ¶ 36.
Creacy was in the dressing room when a sales associate from
L&T's denim department notified her that a customer
wished to return BCBG merchandise. Id. ¶ 37.
Creacy exited the dressing room to attend to the customer,
but upon seeing that the customer was Peng, stopped and asked
Peng to give her a moment. Id. ¶ 38. Creacy
then proceeded to another register and called Zandra Smith
(“Smith”), an African-American BCBG sales
associate, but Smith was on her lunch break. Id.
Creacy also called Noel Figueroa, an L&T security
department employee, and asked him to come to the BCBG
register. Id. ¶ 39-40. Meanwhile, Peng was
saying things like: “Hurry up. This happened last time.
See, you people always make it hard for me. You people always
want to make it hard for me.” Id. ¶ 41.
Peng also called Creacy a “cunt” and said,
“Oh you're afraid? You feel scared? You should be.
You people make it hard.” Id. ¶ 42. Peng
became even angrier when one item could not be processed.
Id. ¶ 45. Creacy then saw Smith approaching and
asked her to finish processing the return. Id.
¶ 46. When Peng's returns were processed, she left
the BCBG register and went to another department in the
store. Id. ¶ 47. Later, L&T's human
resources manager Lorraine Mian (“Mian”)
approached Peng and told her not to return to the BCBG
register or touch any employees. Id. ¶¶
48-49. Creacy testified that Mian, after speaking with Peng,
told her that the customer was still shopping and that if
Peng came back over to the BCBG register, that Creacy should
just go sit in the back. Creacy Dep. at 168:11-14. The
following day, on January 6, 2014, Creacy texted a friend
[W]as told that when customer comes in I have to go to the
stockroom [a]long with another black associate[.] Had no
support. Then customer came in again yesterday [t]alking shit
shit trying to do a return… And my manager is so laxed
[s]o I wanna take there [sic] right steps bc I will sue the
shit out of them Bc I think it's a racial thing.
Pl.'s R. 56.1 Rsp. ¶ 51.
next day, on January 7, 2014, Creacy sent an email to
Ramirez, Murray, Walker, and Munoz expressing further concern
about her encounters with Peng. Id. ¶ 52. She
expressed concern for her safety and for the safety of her
staff and wanted to know what the protocol should be if Peng
returned. Id. She indicated that she did not want to
have anxiety about carrying out her daily job
responsibilities and did not want to be “embarrassed
and harassed.” Doc. 66-16 at BCBG0000228. Her email
made no mention of race or racial comments. Id.
Approximately one hour later, Walker responded to
Creacy's email, letting her know that she had followed up
with LaMorte and had tried following up with O'Connell.
Pl.'s R. 56.1 Rsp. ¶ 53. She told Creacy: “We
will make sure that you feel safe and
forwarded the email to her supervisor, regional manager
Billie Beck-Hammond (“Hammon”), and also wrote
Walker and Ramirez that she emailed Hammond about the issue
and that they should “wait for an answer from me before
responding.” See Doc. 66-16 at BCBG000229. In
the email, Murray indicted she was not aware of the situation
previously. Id. Neither Walker nor Ramirez ever
received an answer from Murray. Ramirez Dep. at 48:3- 49:11;
Deposition of Stephanie Walker (“Walker Dep.”)
(Doc. 66-4) at 43:6-22; 45:11-25. In fact, Walker reached out
to Murray multiple times about Creacy without getting a
response from her. Walker Dep. at 45:11-25. Walker had also
sought “a clear black-and- white” answer from
L&T's loss prevention department as to L&T's
and BCBG's respective responsibilities concerning the
situation, but does not recall getting a clear answer and
only got “a lot of passing the buck.”
Id. at 40:5-41:1. An individual from L&T's
loss prevention department told her it was BCBG's
responsibility to implement whatever procedures it felt
necessary and that L&T would note it, but would only be
able to follow up it if was something that they actually saw
on video. Id. at 40:24-41:6. On January 29, 2014, Walker
wrote Murray a follow up email, asking:
. . . I know this has been passed on multiple times, is there
any way that you would be able to either speak to Danielle or
provide me with any form of update on the situation? I'm
still trying to reassure her that she is safe and supported
in the situation, but I know she is still waiting to hear
something back from someone to know what to do in the future.
Doc. 66-18 at ¶ 16. Murray never answered Walker's
question. Walker Dep. at 44:23-45:25.
Human Resources Department
corporate harassment policy provides that “BCBG
prohibit[s] unlawful harassment in any form, ” and that
an associate who believes “he or she has been subjected
to harassment in the workplace” is to report the
incident(s) to their supervisor or human resources, at which
point, the human resources department is to “undertake
an immediate and objective investigation of the
employee's claims.” Declaration of Anne Buchanan in
Support of Motion for Summary Judgment (“Buchanan
Declr.”), Ex. A (Doc. 57-1). On January 8, 2014, Creacy
called Megan Arcuri (“Arcuri”), the BCBG human
resources official responsible for the region, regarding the
December 26 and January 5 incidents. See Doc. 66-16
at BCBG000248-50. Creacy testified that Arcuri assured her
that she would get back to Creacy, but Arcuri never followed
up with her directly. Creacy Dep. at 189:21-24; 193:6-9.
on January 8, 2014, Creacy filed a police report with the
Eastchester Police Department. Pl.'s R. 56.1 Rsp. ¶
54; Doc. 56-17. Creacy testified that she filed this report
after speaking with Arcuri earlier that day because she was
frightened and nothing about the incident was documented.
Pl.'s R. 56.1 Rsp. ¶ 54. Creacy did not provide a
copy of the police report to anyone at L&T or BCBG, but
she told BCBG's human resources department that she filed
it, and the police told her that they would follow up with
the store. Id. ¶ 55.
January 9, 2014 Arcuri emailed Munoz, Murray, and Hammond,
stating that Creacy had called her and was upset about the
incidents with Peng. Id. ¶ 57. On January 10,
2014, Munoz responded with an email stating that he visited
the store and spoke to Creacy and the L&T loss prevention
team, and that the L&T loss prevention manager had
committed to take follow-up steps. Id. ¶ 60;
Doc. 66-16. In his email, Munoz also promised to speak with
the general manager of the L&T Scarsdale store, Charles
McGinness. Id. ¶ 60; Doc. 66-16. He did not,
however. Deposition of Ricard Munoz (“Munoz
Dep.”) (Doc. 66-8) at 82:5-21.
Creacy Seeks Corrective Action
continued to raise her concerns with managers, and on January
30, 2014, contacted Hammond herself. Creacy Dep at 193:10-19.
Hammond told Creacy that because she worked in an L&T
store, BCBG did not control how the host store dealt with
customers. Id. at 200:16-20.
also spoke with Joanne Ross, BCBG's vice president for
the partner division, and asked several times during that
conversation for Peng to be banned from the store. Pl.'s
R. 56.1 Rsp. ¶ 70; Deposition of Joanne Ross
(“Ross Dep.”) (Doc. 66-6) at 79:22-81:1. At her
deposition, Ross explained BCBG's role in safeguarding
its partner shop employees. She stated that BCBG and L&T
held “joint responsibility” for the security of
partner store employees- such as Creacy-and that BCBG and
L&T “work in partnership” to protect an
employee harassed by a customer. Ross Dep. at 28:7-19;
40:12-17. Ross explained that if BCBG determines that a host
store is not adequately protecting the BCBG employee, BCBG
would communicate with the host store at a corporate level
and work directly with the corporate representatives.
Id. at 42:5-43:15. In this case, Ross had previously
worked approximately 12 years with Charlie McGuiness,
L&T's general manager of the Scarsdale store.
Id. at 73:14- 74:2. Ross called McGuiness to say
that Creacy was “very upset with the situation.”
Id. at 101:20-102:3. McGuiness replied that the
store was handling the situation “appropriately”
with loss prevention. Id. at 102:10-15. That was the
extent of their conversation. Id. at 101:23- 102:19.
Additionally, Ross testified that Creacy did not tell her
that Creacy believed the incident was racially motivated, but
that if she had, Ross would have reported Creacy's
complaint to human resources and the legal department
“because of the severity of the allegation.”
Id. at 87:7-20. Creacy disputes this and maintains
that she did tell Ross that Peng acted out of a racial bias.
Beranbaum Declr., Ex. 12 (“EEOC Affidavit of Danielle
Creacy”) (Doc. 66-12) ¶ 67.
also repeatedly asked for a transfer. Specifically, she
requested transfers in January and March 2014 and spoke to
Walker, Ramirez, Hammond, and Ross about transferring from
the Scarsdale store. Pl.'s R. 56.1 Rsp. ¶ 73. Walker
testified that she spoke to Hammond about transferring
Creacy, and Hammond said she did not have any open positions
at a different store. Id. ¶ 74. Similarly,
Hammond testified that she spoke to Creacy about transferring
and informed her both that she could not transfer into a
higher position and that there were no open positions in the
Greenwich store, where Creacy potentially wanted to return.
Id. ¶ 75. Creacy disputes the veracity of this
statement, averring that the Greenwich store employee roster
shows that there were vacant sales associate positions during
this period and another sales associate was hired at the
Greenwich store five days after Creacy ultimately resigned.
Id. ¶ 75. However, Creacy has not attached any
of the relevant roster forms for the Court to determine the
accuracy of her statements.
Returns to the Store
next time Creacy saw Peng in the store was in March 2014.
Id. ¶ 61. When Creacy saw her, she called Amy
Werner, an L&T manager, and went back to the stockroom,
as O'Connell had previously directed her to do in the
event that Peng returned. Id. ¶¶
61-63.Creacy stayed in the stockroom for
approximately an hour while Peng ...