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Lai v. DeIorio Foods, Inc.

United States District Court, N.D. New York

February 20, 2018

THAM T. LAI, Plaintiff,


          Lawrence E. Kahn U.S. District Judge


         Plaintiff Tham T. Lai, a former employee of defendant DeIorio Foods, Inc., brings discrimination, hostile work environment, and retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Dkt. No. 28 (“Second Amended Complaint”). Defendant moves for summary judgment on each claim. Dkt. Nos. 127 (“Motion”), 127-1 (“Memorandum”). For the reasons that follow, Defendant's Motion is granted.


         A. Factual History

         Defendant is a manufacturer of “frozen dough products.” Dkt. No. 127-2 (“Statement of Material Facts”) ¶ 1. Plaintiff, a Vietnamese-American, began working in Defendant's dough production facility in Utica, New York on July 6, 2011. SAC at 6.[1] As a “packer, ” Plaintiff was responsible for packaging and labeling Defendant's products, and for occasionally loading batches of dough into a proofing oven. Dkt. Nos. 127-4 to -5 (“Lai Deposition”) at 19-21. In July 2013, Ismetta Kucevic was promoted to the position of “production supervisor, ” making her Plaintiff's immediate supervisor. SMF ¶ 16.

         Between November 8, 2013, and November 13, 2013, Plaintiff filed four grievances alleging that Kucevic mistreated her. Dkt. No. 127-6 (“Exhibits”) at 9-15.[2] Plaintiff sent three of these grievances via email to Diana Pilatzke, id. at 9, 11-15, one of Defendant's human resources supervisors, Dkt. No. 127-7 (“Pilatzke Affidavit”) ¶ 2. She filed a fourth grievance through her union pursuant to its collective bargaining agreement (“CBA”). Exs. at 10. The grievances emailed to Pilatzke alleged that Kucevic was often “angry” and “loud” when she spoke with Plaintiff, that she was “[a]ggressi[ve], ” and that she “falsely” accused Plaintiff of misconduct. E.g., id. at 9, 12. The grievances also stated that Kucevic was kinder to “the workers that speak her language.” Id. at 9. Plaintiff clarified in her deposition that Kucevic spoke Bosnian with these co-workers. Lai Dep. at 101-02. Plaintiff stated that Kucevic and her Bosnian co-workers “formed a [c]lique, ” and that “they ma[d]e false accusations” against Plaintiff and her co-workers. Exs. at 11. The grievance filed through Plaintiff's union simply stated, “Hostile Work Environment!” Id. at 10. Defendant investigated the allegations that Plaintiff raised against Kucevic and found that Kucevic had committed “no improper harassment.” Pilatzke Aff. ¶ 23. The grievance Plaintiff submitted through her union “was . . . formally resolved as part of the CBA grievance process on December 20, 2013.” SMF ¶ 27.

         During November 2013, several of Plaintiff's co-workers complained to Defendant that she had harassed them. Pilatzke Aff. ¶ 25. Plaintiff allegedly told one employee “that she did not want to see her . . . ‘ugly face', ” and told another co-worker, “Bitch, you don't know what you're doing, you need to be sent home.” Id. ¶ 26. Defendant suspended Plaintiff for three days while investigating these complaints. Id. ¶ 27; SAC at 12. Defendant concluded that the allegations against Plaintiff were well-founded, SMF ¶ 27, and she was issued a “verbal notice” that warned her against further harassing her co-workers, Pilatzke Aff. ¶ 27.

         On December 13, 2013, an employee alerted Kucevic that Plaintiff was improperly setting “pans onto a conveyor, ” which could “jam” an expensive “freezing unit.” SMF ¶ 34. Kucevic and another production supervisor both showed Plaintiff how to correctly place the pans onto the conveyor. Id. ¶¶ 35-36. Plaintiff disregarded their instructions and did not correct her placement of the pans, and the freezing unit jammed. Id. ¶¶ 36-37. Plaintiff was suspended with pay for a week and received a written warning for “ignoring supervisors' directives” when she returned to work. Id. ¶ 39. Following her suspension, Plaintiff filed a grievance with the Equal Employment Opportunity Commission (“EEOC”), reiterating her previous grievances against Kucevic, and attributing Kucevic's behavior, as well as Plaintiff's two suspensions, to national origin discrimination and retaliation. Exs. at 20-21.

         On February 7, 2014, Plaintiff attended a “training on food safety” regarding Defendant's customer's “specialty product.” Dkt. No. 127-10 (“Kucevic Affidavit”) ¶ 11. The training was implemented to ensure employee safety and that employees could comply with “the customer's particular specifications” for handling the product. Id. ¶ 12. Kucevic required all employees who attended the training to sign a form “memorializing that [they] had attended the training.” Id. ¶ 11. Plaintiff refused to sign the form. Id. ¶ 13. She stated in her deposition that she wanted to call her husband before she signed the form. Lai Dep. at 131. Kucevic maintains that Plaintiff “acknowledged that she read the form and understood it.” Kucevic Aff. ¶ 14. After Kucevic and Plaintiff's union representative failed to persuade her to sign the form, Plaintiff was suspended for insubordination. SMF ¶¶ 50-52. After considering this incident, together with Plaintiff's past misconduct, Defendant terminated her employment on February 12, 2014. Id. ¶¶ 55-56.

         Plaintiff contested her termination by filing an EEOC grievance, Exs. at 35, and by filing a separate grievance through her union, SMF ¶ 57. At the November 13, 2014 arbitration hearing regarding the latter grievance, the arbitrator determined that, although Plaintiff had engaged in misconduct warranting discipline during her employment, Defendant did not have “just cause” for terminating her employment as defined in the CBA. Id. ¶¶ 59-61. Pursuant to the arbitration order, Defendant reinstated Plaintiff on December 8, 2014. Id. ¶ 63. After taking and passing a drug test on December 8, Plaintiff left work, called in sick for the next three days, and sent an email to Pilatzke declaring that she was quitting her employment with Defendant effective December 12, 2014. Id. ¶¶ 64-68; Exs. at 33-34. In this email, Plaintiff stated that she was resigning because Defendant did not provide her with insurance that was active on December 8, required her to take a drug test, and placed a “Bulls Eye Target on [her] back.” Exs. at 33-34. Several months after she resigned, Plaintiff filed a third EEOC grievance, which complained that being required to take a drug test constituted retaliation and national origin discrimination. Id. at 36-37.

         B. Procedural History

         Plaintiff commenced this action on February 20, 2015. Dkt. No. 1 (“Complaint”). She filed an amended complaint, Dkt. No. 7 (“Amended Complaint”), and Defendant moved to dismiss the action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Dkt. No. 15 (“Motion to Dismiss”). Plaintiff moved to file a second amended complaint. SAC. The SAC named as defendants DeIorio Foods, Inc., LSCG Management, Inc., LaSalle Capital Group Partners LLC, and LaSalle Capital Group Partners II-A LLC, alleging various violations of Title VII and breach of contract, promissory estoppel, and vicarious liability claims. SAC. The Court, in a Memorandum-Decision and Order dated February 29, 2016, denied Defendant's Motion to Dismiss as moot, deemed the SAC the operative pleading in this action, dismissed all defendants except for DeIorio Foods, Inc., and dismissed Plaintiff's breach of contract, promissory estoppel, and vicarious liability claims. Dkt. No. 37 (“February 2016 Order”).


         A court must grant summary judgment if “there is 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] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party must then “make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Id.

         While the nonmoving party must do “more than simply show that there is some metaphysical doubt as to the material facts, ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), a court at the summary judgment stage must “review all of the evidence in the record. In doing so, however, the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

         Finally, a “court must be cautious about granting summary judgment to an employer” in discrimination cases because it is often the case that the employer's “intent is at issue.” Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994); accord Bader v. Special Metals Corp., 985 F.Supp.2d 291, 305 (N.D.N.Y. 2013) (Kahn, J.). Nevertheless, “summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact.” Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 608 (2d Cir. 2006) (quoting McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997)). See also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (“It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases.”).

         IV. ...

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