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Creacy v. BCBG Max Azria Group, LLC

United States District Court, S.D. New York

March 31, 2017



          EDGARDO RAMOS, U.S.D.J.

         Danielle Creacy (“Creacy”) alleges that Defendant BCBG Max Azria Group, LLC (“BCBG”)[1] 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 DENIED.


         Creacy 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. ¶¶ 11-12.

         A. December 26, 2013 Encounter with Peng

         On 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. ¶ 18.

         Creacy 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. Id.

         After 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 soon 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 106:11-12.

         Ramirez 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- 52:4.

         That 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.[3] 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 got it”).

         B. January 5, 2014 Encounter with Peng

         On 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 stating:

[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.

         The 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 supported…” Id.

         Murray 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.[4] 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.

         C. BCBG Human Resources Department

         BCBG's 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.

         Subsequently 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.

         On January 9, 2014 Arcuri emailed Munoz, Murray, and Hammond, [5] 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.

         D. Creacy Seeks Corrective Action

         Creacy 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.

         Creacy 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.

         Creacy 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.[6]

         E. Peng Returns to the Store

         The 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.[7]Creacy stayed in the stockroom for approximately an hour while Peng ...

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