Opinion
04 Civ. 7094 (RMB).
September 27, 2006
DECISION ORDER
I. Introduction
On or about September 3, 2004, Anthony Briggs ("Briggs"), Francisco Hamlet ("Hamlet"), and Frank Worrell ("Worrell") (collectively, "Plaintiffs") filed this lawsuit against Mercedes-Benz Manhattan, Inc, ("MBM"), Mercedes-Benz USA, LLC ("MBUSA"), Dan Edwards ("Edwards") and Ralph Fisher ("Fisher") (collectively, "Defendants") alleging violations of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq. ("Title VII"), 42 U.S.C. § 1981 ("Section 1981"), the Family and Medical Leave Act, 29 U.S.C. § 2601 ("Family Medical Leave Act"), the New York State Executive Law, § 290 et seq. (the "New York State Human Rights Law" or "NYSHRL"), and the Administrative Code of the City of New York, § 8-107 et seq. (the "New York City Human Rights Law" or "NYCHRL"). (See Complaint, dated September 3, 2004 ("Complaint"), ¶ 1.) Plaintiffs contend that "Defendants discriminated and retaliated against Plaintiffs on the basis of their race, denying Plaintiffs the more favorable compensation, terms, conditions, and privileges of employment enjoyed by similarly-situated employees who were not black." (Complaint ¶ 2.) Plaintiffs contend that "although MBM's evaluation and compensation system is directly related to . . . seemingly facially neutral [customer service evaluation scores], Defendants intentionally created a discriminatory compensation system by interfering with Plaintiffs' performance by assigning them a disproportionately high volume of clients or `calls' at any one time compared to [employees] who are not black." (Complaint ¶ 71.) Plaintiffs also contend that they were subjected to a "hostile working environment" and that Defendants retaliated against them for, among other things, complaining about alleged discrimination. (Complaint ¶ 3.)
On or about October 3, 2005, Defendants moved for summary judgment, arguing that (1) Plaintiffs fail to make out a hostile work environment claim because they do not "allege they were subjected to any alleged racially harassing conduct or even identify a single racial comment by any employee at MBM during their entire employment"; (2) "Plaintiffs cannot establish a prima facie case of race discrimination because they have not proffered a single fact supporting an inference of race discrimination"; (3) Plaintiffs' retaliation claims fail because Briggs "did not engage in any protected activity until after his discharge" and Worrell and Hamlet "did not suffer an adverse employment action"; (4) there is no individual liability under Title VII and "Plaintiffs have not alleged any discriminatory conduct by Mr. Fisher"; and (5) MBUSA was not Plaintiffs' employer. (See Defendants' Memorandum of Law, dated October 3, 2005 ("Def. Mem."), at 1-2, 21.) On or about November 8, 2005, Plaintiffs filed an opposition contending that (1) Plaintiffs were subjected to a hostile work environment because of the alleged "pervasive disparate treatment . . . in contrast to the nonblack service advisors . . . and frequent humiliation by their managers"; (2) "[D]efendants targeted [P]laintiffs with a higher workload than the non-black SAs, causing their [customer satisfaction] scores, and thus their compensation to suffer"; (3) Defendants retaliated against Plaintiffs after "Briggs, along with Hamlet and Worrell, complained to Edwards that they had been singled out for discipline because they were black, . . . Worrell complained in writing to Fisher that [a new pay plan implemented by Edwards in February 2002 (hereinafter referred to as the "Edwards Pay Plan")] was discriminatory," and Hamlet took leave under the Family Medical Leave Act; (4) Edwards and Fisher "actively participated" in the alleged discrimination; and (5) MBUSA "exercised significant control over MBM's Human Resources functions." (See Plaintiffs' Memorandum of Law, dated November 8, 2005 ("Pl. Mem."), at 14.) On or about November 18, 2005, Defendants filed a reply. (See Reply Memorandum of Law, dated November 18, 2005.) The parties waived oral argument.
For the reasons set forth below, Defendants' motion for summary judgment is granted in part and denied in part.
II. Background
Plaintiffs, who are African American males, are current and former employees of MBM, a wholly owned subsidiary of MBUSA. (See Defendants' Rule 56.1 Statement, dated October 3, 2005 ("Def. 56.1"), ¶¶ 1-2; Plaintiffs' Response to Defendants' Rule 56.1 Statement, dated November 8, 2005 ("Pl. 56.1"), ¶¶ 1-2.) Briggs became a Service Advisor ("SA") at MBM in 1986 and was employed as an SA until he was discharged in August 2003. (See Def. 56.1 ¶¶ 14-21; Pl. 56.1 ¶¶ 14-21.) Hamlet and Worrell became SAs in 1999 and, as of the date of this motion, remain(ed) as SAs at MBM. (See Def. 56.1 ¶¶ 22-28; Pl. 56.1 ¶¶ 22-28.)
SAs are "responsible for meeting with owners of Mercedes-Benz vehicles who brought those vehicles to MBM for repairs." (Def. 56.1 ¶ 60; Plaintiffs' Response Pl. 56.1 ¶ 60.)
Fisher is the general manager of MBM, who "oversees the overall operation of MBM's business, i.e. sales, service, pre-owned and body shop." (Def. 56.1 ¶¶ 3-5; Plaintiffs' Response Pl. 56.1 ¶¶ 3-5.) According to Plaintiffs, Fisher "consulted MBUSA's Human Resources and its legal department with respect to hiring and firing decisions, including the termination of Briggs' employment." (Pl. 56.1 ¶ 7.) Edwards, who reports to Fisher, became MBM's service director in November 2001. (See Def. 56.1 at ¶¶ 9-13; Plaintiffs' Response Pl. 56.1 at ¶¶ 9-13.) Patrick Migliore, who is not named as a defendant in this action, is the service manager at MBM and "is in charge of the SAs." (See Def. 56.1 ¶ 33; Plaintiffs' Response Pl. 56.1 ¶ 33.)
Each SA's performance is measured by the Service Experience Survey ("SES"), which "is sent to customers to state how they were treated as customers." (Def. 56.1 ¶ 46; Pl. 56.1 ¶ 46.) MBUSA "received the SES survey results, tabulated the results and verbal customer complaints, issued the scores, and ruled on appeals from MBM as to the inclusion or exclusion of a particular survey in an SA's score." (Plaintiffs' Statement of Additional Material Facts Pursuant to Rule 56.1, dated November 8, 2005 ("Pl. Additional Stmt."), ¶ 21.)
"The pay plan for SAs that was in effect when Edwards joined MBM [in November 2001] had a bonus element . . . based primarily on the number of labor hours." (See Def. 56.1 ¶¶ 76-79; Pl. 56.1 ¶¶ 76-79.) In February 2002, Edwards "revised [MBM's] pay plan, with Ralph Fisher's approval, to make each SA's compensation tied to their individual SES scores in order to reward those SAs who were doing a good job on customer service and incentivize those who needed to improve." (Def. 56.1 ¶¶ 76-79; Pl. 56.1 ¶¶ 76-79.) "The goal of the new plan was to increase productivity and increase MBM's customer service ratings." (Def. 56.1 ¶¶ 76-79; Pl. 56.1 ¶¶ 76-79.) Shortly after the Edwards Pay Plan was announced, the SAs, including Plaintiffs, wrote a letter to Fisher complaining that the Edwards Pay Plan was "harmful rather than helpful to . . . productivity." (Letter from SAs to Fisher, dated February 11, 2002, attached to Lauri Affidavit, dated October 3, 2005 ("Lauri Aff."), as Exhibit O, at 4.)
It appears to the Court that, under the plan, the more labor hours that an SA "sold" to a customer, the higher the compensation that SA could earn.
"Briggs' scores were consistently among the lowest of the SAs . . . [T]hey were below the dealer average in every month in 2003 up until his discharge, and he had the lowest SES score of any SA for all but three months in 2003 (when Mr. Hamlet had the lowest score)." (Def. 56.1 ¶¶ 58-59; Pl. 56.1 ¶¶ 58-59.) Briggs was issued a job performance warning in March 2002, and was terminated in August 2003. (See Def. 56.1 ¶¶ 226-228; Pl. 56.1 ¶¶ 226-228.) Prior to his discharge, "Edwards met with [Briggs] and told him he had to improve his SES scores and identified numerous customer complaints that had been made regarding his performance." (See Def. 56.1 ¶¶ 226-228; Pl. 56.1 ¶¶ 226-228.) Hamlet's SES scores were above the dealership average in the first quarter of 2001, but began to drop below the dealership average in May 2001. (See Def. 56.1 ¶¶ 58-59; Pl. 56.1 ¶¶ 58-59.) In eight out of the nine months for which SES data is available for 2001, Worrell's scores were higher than the dealership average. (See Def. 56.1 ¶¶ 58-59; Pl. 56.1 ¶¶ 58-59.) In 2002, Worrell's SES scores were below the dealership average for all but one month. (See Def. 56.1 ¶¶ 58-59; Pl. 56.1 ¶¶ 58-59.) "[P]laintiffs' compensation decreased significantly under the Edwards Pay Plan. . . . Although Hamlet's and Worrell's pay improved in 2004, it did not recover to pre-Edwards level." (Pl. 56.1 ¶ 35.)
In 2002, Briggs had the highest number of labor hours and repair orders of any SA at MBM; Worrell had the second highest number of labor hours and repair orders; and Hamlet had the fourth highest number of labor hours and repair orders. (See Def. 56.1 ¶¶ 166-167; Pl. 56.1 ¶¶ 166-167.) Plaintiffs were "disciplined for turning down work when their workload was excessive, while nonblack SAs were not," (see, e.g., Pl. 56.1 ¶ 165), and the technicians assigned to their teams were fewer in number and less skilled than those assigned to nonblack SAs. (See, e.g., Def. 56.1 ¶¶ 120-130; Pl. 56.1 ¶¶ 120-130.) Plaintiffs also received less support from other departments at MBM, including a newly created night shift, which "worked on fewer of Plaintiffs' cars than those assigned of non-black SAs." (Affidavit of Kelly Velez, dated November 8, 2005 ("Velez Aff."), attached to Affirmation in Opposition to Defendants' Motion for Summary Judgment, dated November 8, 2005 ("Plaintiffs' Affirmation"), ¶ 8) On September 22, 2003, Worrell wrote a letter to Fisher stating that the Edwards Pay Plan may have a "discriminatory affect," though Worrell did not specifically mention race in the letter. (Letter from Worrell to Fisher, dated September 22, 2003, attached to Lauri Aff. as Exhibit CC.)
Plaintiffs have presented evidence that during their tenure at MBM "Edwards quickly befriended nonblack SAs but ignored the black SAs and did not even greet them in the morning" (Pl. Additional Stmt. ¶ 3); Edwards "failed to provide the needed support [to Plaintiffs] in getting the work done" (Pl. Additional Stmt. ¶ 3); "Edwards commented to Briggs that his (Edwards') kids would not recognize a famous hip-hop artist who was an MBM customer because his `kids are lily white'" (Pl. Additional Stmt. ¶ 102); Plaintiffs "were given less support than nonblack service advisors with loaner cars for their customers" and were "made to go through Dan Edwards to request loaners when nonblack SAs were not" (Pl. Additional Stmt. ¶ 11); Fisher "engaged in friendly conversations with the nonblack SAs, but only spoke to Briggs if there was a problem" (Pl. Additional Stmt. ¶ 4); "Migliore kept the plaintiffs under constant scrutiny, gave them dirty looks, and adopted a nasty and demeaning tone" (Pl. Additional Stmt. ¶ 6); and "Migliore commonly referred to black employees as `niggers' or `Carlton,' another racially disparaging epithet" (Pl. Additional Stmt. ¶ 8.) According to Kelly Velez, a receptionist in the Service Department at MBM, "Migliore assumed that black SAs were at fault in any situation and humiliated and yelled at them in front of fellow employees and customers." (Velez Aff. ¶ 11.)
In March 2003, Plaintiffs complained to Edwards that another MBM employee, Herbert Wessler, "singled out [Plaintiffs] for discipline . . . because they are black," but that those complaints were "initially ignored" and that "Edwards promised to return [negative] writeups [from Wesler] to the Plaintiffs if there was no repeat incident for 30 days, but he never did so." (Pl. Additional Stmt. ¶ 17.) During a subsequent meeting at which all Plaintiffs were present, Hamlet complained that the write-up was "racially motivated." (Def. 56.1 ¶ 239; Pl. 56.1 ¶ 239.)
In May 2003, MBM added a night shift to its Service Department. (See Def. 56.1 ¶¶ 218-219; Pl. 56.1 ¶¶ 218-219.) "It was general knowledge that MBM was going to start a night shift" and there was "talk" of an open night shift manager position. (Def. 56.1 ¶ 220; Pl. Additional Stmt. ¶ 45.) Plaintiffs did not apply for the position, however, "because the Defendants did not post the position." (Pl. 56.1 ¶¶ 217.) The position was ultimately filled by a nonblack SA. (See Def. 56.1 ¶ 221.)
In June 2003, Hamlet took a six month leave from MBM after he was involved in a motorcycle accident. (See Def. 56.1 ¶ 248; Pl. 56.1 ¶¶ 248.) While Hamlet "returned to the SA position he held before the accident," (Def. 56.1 ¶ 249; Pl. 56.1 ¶¶ 249), he contends that he was "made to come into work earlier than usual, at 7:30, and to work the Saturday shift, both of which caused physical hardship." (Pl. Additional Stmt. ¶ 56.)
"On or about April 27, 2004, each Plaintiff filed a Charge of Discrimination against MBM with the Equal Employment Opportunity Commission." (Def. 56.1 ¶ 238.) On or about June 7, 2004, "each Plaintiff received notice . . . from the EEOC, informing him of his right to file a civil action against MBM." (Complaint ¶ 23.)
III. Legal Standard
"Summary judgment is appropriate only where the parties' submissions show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999). "Of course, in ruling on a motion for summary judgment, a court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. . . . [T]he trial court must be especially cautious in deciding whether to grant this drastic provisional remedy in a discrimination case, because the employer's intent is often at issue and careful scrutiny may reveal circumstantial evidence supporting an inference of discrimination." Id. However, "summary judgment may be appropriate even in the fact-intensive context of employment discrimination cases." Abdu-Brisson v. Delta Airlines, 239 F.3d 456, 466 (2d Cir. 2001).
Further, "even in the discrimination context, a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). "[T]he test for summary judgment is [ultimately] whether the evidence can reasonably support a verdict in plaintiff's favor." James v. New York Racing Ass'n, 233 F.3d 149, 157 (2d Cir. 2000).
The analysis of Plaintiffs' and Defendants' respective burdens for Title VII claims "is also applicable to [the] claims under the NYSHRL and the NYCHRL." See Dawson v. Bumble Bumble, 398 F.3d 211, 216 (2d Cir. 2005).
IV. Analysis
(1) Hostile Work Environment
Defendants argue that Plaintiffs can not prove their hostile work environment claim because they "fail to allege they were subjected to any alleged racially harassing conduct or even identify a single racial comment by any employee at MBM," (Def. Mem. at 3), "even if Plaintiffs stated a claim for harassment such claim should still be dismissed because Plaintiffs have failed to allege that they complained of unlawful harassment to MBM despite its complaint procedures" and that Defendants "exercised reasonable care to prevent and promptly correct any harassment." (Def. Mem. at 6.) Plaintiffs respond that there was an "air of racism" at MBM and that their claims related to "the pervasive disparate treatment the "[P]laintiffs experienced, in contrast to the nonblack service advisors, with respect to their workload, SES scores, technician and other support, and frequent humiliation by their managers." (Pl. Mem. at 2-3.) Plaintiffs also argue that Defendants did not exercise reasonable care to prevent the alleged hostile work environment. (See Pl. Mem. at 6.)
"In order to prevail on a hostile work environment claim under Title VII, a plaintiff must show that the harassment was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."Terry v. Ashcroft, 336 F.3d 128, 147 (2d Cir. 2003). "Proving the existence of a hostile work environment involves showing both objective and subjective elements: the misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive." Feingold v. New York, 366 F.3d 138, 150 (2d Cir. 2004) (internal quotation marks omitted). "Courts look to the totality of the circumstances in determining whether a plaintiff has established a hostile work environment claim, considering factors including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. . . . The test is whether the harassment is of such quality or quantity as to meet the standard of severe or pervasive harassment or abuse." Dawson v. County of Westchester, 373 F.3d 265, 272-73 (2d Cir. 2004) (internal citations and quotation marks omitted).
An employer "may raise an affirmative defense to liability or damages" in a hostile work environment suit where: (a) "the employer exercised reasonable care to prevent and correct promptly any . . . harassing behavior," and (b) "the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Fierro v. Saks Fifth Ave., 13 F.Supp.2d 481, 491 (S.D.N.Y. 1999) (internal citations omitted).
Plaintiffs' submissions, including, among other things, evidence that MBM employees used "racially disparaging epithets," (Pl. Additional Stmt. ¶ 8), that "Edwards quickly befriended nonblack SAs but ignored the black SAs," (Pl. Additional Stmt. ¶ 3), that Plaintiffs "were given less support than nonblack service advisors," (Pl. Additional Stmt. ¶ 11), and that Migliore spoke to Plaintiffs in "a nasty and demeaning tone" (Pl. Additional Stmt. ¶ 6) and "humiliated . . . them in front of fellow employees and customers," (Velez Aff. ¶ 11), raises a genuine issue of material fact as to whether there was "an objectively hostile or abusive work environment" at MBM. (Pl. Additional Stmt. ¶¶ 3-14; see Velez Aff. ¶ 5 ("Almost on a daily basis, Wesler stood directly behind Plaintiffs and breathed down their necks, scrutinizing their work in order to find reasons to discipline them.")); see also Terry v. Ashcroft, 336 F.3d 128, 147 (2d Cir. 2003) ("[Plaintiff] has alleged facts sufficient to find that the conduct of which he complains was pervasive. While each incident on its own may not have been particularly severe, we have explained that a work environment may be actionable if the conduct there is either so severe or so pervasive as to alter the working conditions of a reasonable employee."); Ebanks v. Neiman Marcus Group, Inc., 414 F.Supp.2d 320, 331 (S.D.N.Y. 2006) ("whether [Defendant's] unpleasant demeanor indicated hostility towards minorities, or a more general incivility towards all . . . employees, is a question not fit for resolution on a motion for summary judgment."). Plaintiffs have also presented evidence to satisfy the subjective requirement of a hostile work environment claim. (See, e.g., Def. 56.1 ¶ 95 ("Worrell testified that he thought Mr. Migliore harassed him by being less friendly to him than he is to other SAs, accusing him of not doing his job and having a dirty look on his face."), ¶ 100 ("Briggs alleges he was racially harassed by his superiors."), ¶ 105 ("Hamlet claimed that Mr. Wesler would stare at him and make him feel uncomfortable").)
Defendants' claims that Plaintiffs unreasonably failed to take advantage of preventive measures offered by MBM and that MBM exercised reasonable care to prevent a hostile work environment present questions of fact for a jury. See Petrosino v. Bell Atlantic, 385 F.3d 210, 225-226 (2d Cir. 2004) ("[Defendant's] argument is not without appeal, but on review of a motion for summary judgment, we cannot ourselves resolve the parties' factual disagreement. We are obliged to view the evidence in the light most favorable to [Plaintiff], which means that we must assume that a factfinder will credit her version of events and conclude that [Defendant] failed adequately to investigate and promptly to correct her formal and informal reports of . . . harassment.").
(2) Racial Discrimination
Plaintiffs contend that they were discriminated against based on their race in three ways: (A) the Edwards Pay Plan was discriminatory because "[D]efendants targeted the Plaintiffs with a higher workload than the nonblack SAs, causing their SES scores, and thus their compensation, to suffer under [the plan]," (Pl. Mem. at 8); (B) Defendants' "actions prevented the [P]laintiffs from applying and qualifying for the position of night supervisor," (Pl. Mem. at 8); and (C) "Briggs was singled out for discipline and termination." (Pl. Mem. at 13.) Defendants argue that (A) "the change in the SA's pay plan was not discriminatory in its face or in its effect [because] it applied to all SAs"; (B) "Plaintiffs admittedly did not apply for a promotion"; and (C) "Briggs has not produced a shred of evidence that the decision to fire him was based on his race or that the legitimate business reasons for his discharge . . . were false." (Def. Mem. at 6-7.)
Racial discrimination claims are analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A plaintiff has the burden of establishing a prima facie case of discrimination by showing: "1) that he belonged to a protected class; 2) that he was qualified for the position he held; 3) that he suffered an adverse employment action; and 4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent." Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004). "Under McDonnell Douglas, once plaintiff establishes a prima facie case, a presumption arises that his employer unlawfully discriminated against him. To rebut this presumption, the employer must come forward with admissible evidence of legitimate nondiscriminatory reasons for its adverse actions toward plaintiff." Mandell v. County of Suffolk, 316 F.3d 368, 380 (2d Cir. 2003). "Once the employer produces evidence of legitimate reasons for its actions, the burden shifts back to the plaintiff to prove, by a preponderance of the evidence, that the real reason for the adverse employment decision was discrimination."Id. at 380-81; see also Feingold, 366 F.3d at 152 ("If the defendant has stated a neutral reason for the adverse action, to defeat summary judgment . . . the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination.") (internal quotation marks omitted); Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) ("We are particularly cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is in question. Because direct evidence of an employer's discriminatory intent will rarely be found, `affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.'"). Discriminatory Pay Plan
Plaintiffs have established a prima facie case of discrimination with respect to the Edwards Pay Plan because: (1) they are members of a protected class as African-Americans; (2) they were qualified for their positions; (3) they have presented evidence of an adverse employment action in that, among other things, they allegedly received higher workloads than non-black SAs and less support from MBM staff resulting in, among other things, lower annual pay; and (4) the implementation of the Edwards Pay Plan occurred under circumstances giving rise to an inference of discrimination. (See Pl. 56.1 ¶ 80 (Defendants "subjected the plaintiffs to disparate treatment by way of increased workload and inferior support, compared to the nonblack SAs, causing their [SES] scores and pay to suffer [under the Edwards Pay Plan]"); Shain v. Ctr. for Jewish History, Inc., No. 04 Civ. 1762, 2005 WL 2298165, at *5 (S.D.N.Y. Sept. 19, 2005) ("The burden of proof an employment discrimination plaintiff must meet to survive a summary judgment motion at the prima facie stage is de minimis."). Defendants have articulated legitimate non-discriminatory reasons for the implementing the Edwards Pay Plan by stating that "the goal of the new pay plan was to increase productivity and increase MBM's customer service ratings, (Def. 56.1 ¶ 78), and that "Edwards revised the pay plan . . . to make each SAs' compensation tied to their individual SES scores in order to reward those SAs who were doing a good job on customer service and `incentivize' those who needed to improve." (See Def. 56.1 ¶ 77); Mandell, 315 F.3d at 380.
Plaintiffs have presented evidence to rebut Defendants' legitimate non-discriminatory reasons for implementing the Edwards Pay Plan, including, as noted, that they were given an increased workload and were provided with less support than nonblack SAs. (See, e.g., Velez Aff. ¶ 8 ("I noticed that [the night team] worked on fewer of Plaintiffs' cars than those assigned of non-black SAs."), ¶ 13 ("Edwards . . . assigned the more skilled and experienced technicians to the teams of the nonblack SAs.")); Feingold v. New York, 366 F.3d 138, 153 (2d Cir. 2004) ("[Plaintiff] has also shown that he was subjected to an excessive workload and eventually terminated under circumstances giving rise to an inference of discrimination. Viewing the facts in the light most favorable to [Plaintiff], a reasonable trier-of-fact could infer that [Plaintiff] and his white colleague . . . were assigned a heavier docket of cases as a result of discriminatory intent.");Ebanks v. Neiman Marcus Group, Inc., 414 F.Supp.2d 320, 331 (S.D.N.Y. 2006) ("Of course, [defendant] might have been motivated by any number of non-discriminatory reasons for placing Ebanks on probation and denying her a raise. Whether defendant's reasons were in fact non-discriminatory, or were in part pretextual, should be determined by a jury."). Evidence of derogatory comments, discussed above, may suggest that Defendants' proffered rationale for implementing the Edwards Pay Plan was a pretext for racial discrimination. See Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) ("We note that we have never held that derogatory comments are required to show pretext, although certainly such comments might be evidence of pretext.").
Night Shift Position
"To establish a prima facie case of discriminatory failure to promote, a plaintiff must allege that she or he applied for a specific position or positions and was rejected therefrom."Kinsella v. Rumsfeld, 320 F.3d 309, 314 (2d Cir. 2003). Plaintiffs do not make out such a claim here because, although they knew about the night shift position, they admittedly did not apply through any formal or informal process. (See Def. 56.1 ¶ 217 ("Not one of the Plaintiffs applied for the Night Shift Supervisor Position"); Pl. 56.1 ¶ 217 ("Undisputed that the Plaintiffs did not apply . . ."), ¶ 220 ("the possibility of a night shift was discussed")); Petrosino v. Bell Atlantic, 385 F.3d 210, 227 (2d Cir. 2004) ("to be excused from the specific application requirement, an employee must demonstrate that . . . the employee either had (a) no knowledge of the vacancy before it was filled or (b) attempted to apply for it through informal procedures endorsed by the employer."). Briggs' Termination Claim
For the reasons previously discussed, see section (A) supra, a jury could find that the reasons MBM gave for warning Briggs about his performance and later terminating his employment — namely low SES scores — were pretextual. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) ("We are particularly cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is in question. Because direct evidence of an employer's discriminatory intent will rarely be found, `affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.'"). Among other things, Briggs has presented evidence that he was given an increased workload and was provided with less support than other MBM SAs.See Feingold v. New York, 366 F.3d 138, 153 (2d Cir. 2004) ("[Plaintiff] has also shown that he was subjected to an excessive workload and eventually terminated under circumstances giving rise to an inference of discrimination. Viewing the facts in the light most favorable to [Plaintiff], a reasonable trier-of-fact could infer that [Plaintiff] and his white colleague . . . were assigned a heavier docket of cases as a result of discriminatory intent.")
(3) Retaliation Claims
Defendants contend that "summary judgment is appropriate as to Plaintiffs' retaliation claims because Mr. Briggs never participated in a protected activity and Messrs. Worrell and Hamlet never suffered an adverse employment action." (Def. Mem. at 22.) Plaintiffs counter that "Briggs, along with Hamlet and Worrell, complained to Edwards that they had been singled out for discipline because they were black, and Worrell complained in writing to Fisher that the Edwards pay plan was discriminatory." (Pl. Mem. at 15-16.) Plaintiffs also contend that Worrell and Hamlet endured retaliatory conduct because "Defendants' actions . . . depress[ed] Plaintiffs' SES scores and their pay under the Edwards [Pay Plan]" and because of "other disparate treatment they experienced." (Pl. Mem. at 17.) Worrell argues that he was retaliated for taking leave under the Family Medical Leave Act because "on his return from leave . . . he was made to come in to work earlier than usual, at 7:30, and to work the Saturday shift, both of which caused physical hardship." (Pl. Mem. at 17.)
"The McDonnell Douglas burden shifting analysis used in claims of discrimination . . . also applies to retaliation claims[.]" Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003).
"First . . . an employee must show `(1) participation in a protected activity; (2) that the defendant[s] knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action.'" Jute v. Hamilton Sundstrandt Corp., 420 F.3d 166, 173 (2d Cir. 2005) (internal citations omitted). "If a plaintiff sustains the initial burden, a presumption of retaliation arises. In turn . . . the onus falls on the employer to articulate a legitimate, non-retaliatory reason for the adverse employment action. Finally . . . once an employer offers such proof, the presumption of retaliation dissipates and the employee must show that retaliation was a substantial reason for the adverse employment action." Id. (internal citations omitted).
Plaintiffs have not met their burden of proving a prima facie case of retaliation. See Jute v. Hamilton Sundstrandt Corp., 420 F.3d 166, 173 (2d Cir. 2005). First, Briggs did not engage in any cognizable "protected activity" as, among other things, he never complained to anyone at MBM about racial harassment. (See, e.g., Def. 56.1 ¶ 103 ("Briggs never complained to anyone at MBM that he was being racially harassed or discriminated against by any supervisor or co-worker."); Deposition of Anthony Briggs, dated May 24, 2005, at 42 ("Q. During your employment at [MBM], did you ever make any type of complaint that you felt you were being harassed because of your race . . . A. No, and the reason I didn't was because . . . there were other people who made those types of accusations, and they were alienated.").)
Second, Worrell and Hamlet have not presented any (specific) evidence that Defendants engaged in any retaliatory conduct after Hamlet complained about racial discrimination in a March 2003 meeting with Edwards or after Worrell's September 22, 2003 letter to Fisher complaining about the discriminatory effect of the Edwards Pay Plan. See Jowers v. Lakeside Family and Children's Services, No. 03 Civ. 8730, 2005 WL 3134019, at *4 (S.D.N.Y. 2004) ("The Plaintiff must have been involved in the protected activity before suffering an adverse employment action."); see also Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) ("even in the discrimination context, a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment."). And, even if Plaintiffs could show that Defendants engaged in retaliatory conduct after their alleged protected activity, Plaintiffs have not submitted proof of a causal connection between their protected activity and Defendants' alleged retaliatory conduct. See Uddin v. City of New York, 427 F.Supp.2d 414, 433 (S.D.N.Y. 2006) ("[Plaintiff] has also failed to establish any evidence establishing a link between the [alleged adverse employment action] and his alleged protected activity. . . . Therefore, even assuming [Plaintiff] suffered an adverse employment action by virtue of being denied a promotion, he has failed to establish that such denial was a result of retaliatory animus."); Kearney v. County of Rockland, 373 F.Supp.2d 434, 446 (S.D.N.Y. 2005) ("plaintiff has submitted no evidence which could lead a trier of fact to reasonably conclude that any of the alleged adverse employment actions occurred in retaliation against plaintiff for filing [her] Complaint. . . . Therefore, because plaintiff is unable to demonstrate a causal connection between her . . . Complaint and the alleged adverse employment actions, she has not established a prima facie case for retaliation."). The Edwards Pay Plan was implemented before Worrell and Hamlet engaged in any alleged "protected activity" and thus does not support their retaliation claim. See id.
Third, Hamlet's Family Medical Leave Act retaliation claim fails because his sole contention appears to be that he was required to work early morning and Saturday shifts, something all SAs did on a rotating basis. (See, e.g., Pl. Additional Stmt. ¶ 56 ("On his return from leave because of a traffic accident, he was made to come in to work earlier than usual, at 7:30, and to work the Saturday shift, both of which caused physical hardship given that he was still recuperating from his injuries, and to follow the work of several other SAs, within a few weeks after he returned from leave.")); Potenza v. City of New York Dept. of Transp., No. 00 Civ. 0707, 2001 WL 1267172, *9 (S.D.N.Y. Oct. 23, 2001) ("an employee on protected leave is not entitled to "any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave."). In fact, Defendants granted Hamlet's request that he not work the Saturday shift and the early shift when he initially returned to his position. (See, e.g., Deposition of Francisco Hamlet, dated May 19, 2005, attached to Affirmation in Opposition to Defendants' Motion for Summary Judgment, dated November 8, 2005, as Exhibit 8, at 125 ("Q. You do recall that when you first got back, you were not on the early schedule, isn't that right? A. In the beginning, yes.").)
(4) Individual Liability
Defendants contend that "since all of Plaintiffs' claims are defective . . . the individual Defendants cannot be liable" and that "Plaintiffs have not . . . alleged any discriminatory conduct by Mr. Fisher." (Def. Mem. at 21.) Plaintiffs respond that both Fisher and Edwards "actively participated" in the alleged discrimination. (See Pl. Mem. at 15.)
There is no individual liability under Title VII. See Schiano v. Quality Payroll Systems, Inc., 445 F.3d 597, 608 (2d. Cir. 2006) ("we affirm the district court's dismissal of the [plaintiff's] federal sexual harassment claim against [an individual defendant] because an individual defendant cannot be held personally liable under Title VII."). Under both New York State Human Rights Law and the New York City Human Rights Law, there may be individual liability where an individual defendant "actually participates in the conduct giving rise to a discrimination claim." Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995).
Plaintiffs have presented sufficient evidence to create a triable issue of fact with respect to whether Fisher and Edwards "actually participated" in any alleged discrimination. (See, e.g., Plaintiff's Additional Stmt. ¶ 36 ("Edwards . . . circumvented the work assignment procedures to assign additional work to the plaintiffs, and required the plaintiffs to cover repairs assigned to other SAs."), ¶ 52 ("Fisher had power over personnel decisions at MBM, including, but not limited to, terminating Briggs' employment."), ¶ 53 ("Fisher approved the Edwards pay plan.")); Feingold v. New York, 366 F.3d 138, 158 (2d Cir. 2004) ("[Plaintiff] has proffered enough evidence to permit the conclusions . . . that [defendants] all participated in creating a hostile work environment [and] that [two defendants] assigned him a disproportionate workload because of his race.").
(5) MBUSA's Liability
Defendants argue that "since MBM is the sole employer of Plaintiffs under the statutes, all of Plaintiffs' claims against MBUSA should be dismissed." (Def. Mem. at 4.) Plaintiffs respond that "MBUSA not only owned MBM, but managed the all-important SES scoring system, and exercised control over MBM's Human Resources functions." (Pl. Mem. at 7.)
"Under the single employer doctrine, four factors determine whether two entities will be regarded as a single employer subject to joint liability for employment-related acts. They are: (1) interrelated operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership." Murray v. Miner, 74 F.3d 402, 404 (2d Cir. 1996). "[N]o one factor is determinative." See Murray v. Miner, 74 F.3d 402, 404 (2d Cir. 1996).
Plaintiffs have presented evidence — and Defendants do not dispute — that MBM and MBUSA are interrelated operations, and that they have common management and common ownership. (See Defendants' Response to Plaintiffs' Statement of Additional Material Facts, dated November 18, 2005, ¶¶ 21-29.) Among other things, MBM is a "wholly-owned subsidiary of [MBUSA]," (Def. 56.1 ¶ 2), "MBUSA conducts human resources investigations for MBM," (Pl. Additional Stmt. ¶ 26), and Fisher, MBM's general manager, "reported to MBUSA's Manager of Customer Care." (Pl. Additional Stmt. ¶ 22.)
V. Conclusion and Order
For the reasons stated herein, Defendants' Motion for Summary Judgment [28] is granted in part and denied in part.
The parties are directed to appear at a settlement/trial scheduling conference with the Court on October 19, 2006 at 9:15 a.m., in Courtroom 14A of the United States Courthouse, 500 Pearl Street, New York, New York, 10007. The Court directs the parties to engage in good faith settlement negotiations prior to the conference with the Court.