United States District Court, N.D. New York
THAM T. LAI, Plaintiff,
DEIORIO FOODS, INC. Defendant.
MEMORANDUM-DECISION AND ORDER
Lawrence E. Kahn U.S. District Judge
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.
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. 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
November 8, 2013, and November 13, 2013, Plaintiff filed four
grievances alleging that Kucevic mistreated her. Dkt. No.
127-6 (“Exhibits”) at 9-15. 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.
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.
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.
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.
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.
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”).
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
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).
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