Opinion
02 Civ. 6592 (GEL).
February 4, 2005
Saul D. Zabell, Zabell Associates, LLP, Farmington, NY, for Plaintiff.
Allen W. Dub, Klein Dub Holleb, Ltd., Highland Park, IL, and Kevin J. O'Neill, Gogick Byrne O'Neill, LLP, New York, NY, for Defendant.
OPINION AND ORDER
Plaintiff Everton Millin, an African-American of Jamaican ancestry and a practicing Rastafarian, began work with defendant McClier Corporation ("McClier") in April 2000 as a construction superintendent, and was fired in February 2001. After losing his job, Millin filed a charge with the Equal Employment Opportunity Commission ("EEOC"), alleging that McClier discriminated against him, and on May 15, 2001, the EEOC issued Millin a right-to-sue letter. Subsequently, Millin brought this employment discrimination action against McClier pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the New York State Human Rights Law, Executive Law § 290 et seq., and the New York City Human Rights Law, N.Y.C. Admin Code § 8-101, et seq., alleging discrimination in violation of each statute on the basis of race, religion, and national origin. McClier moves for summary judgment, arguing that the factual record does not demonstrate a reasonable basis on which a jury could sustain Millin's hostile work environment or wrongful termination claims. For the reasons that follow, the motion will be denied.
McClier also moves for summary judgment as to a retaliation claim that Millin does not seem to make. Even if Millin intended to make a retaliation claim in his complaint, he abandoned it by failing to address it in his brief on this motion.
BACKGROUND
In summarizing these events, the Court does so not with a view toward factfinding, but rather toward presenting context for this motion. In accord with Local Rule 56.1, unless otherwise indicated, the facts presented here are those admitted by Millin — either expressly or by his failure to controvert McClier's statement with a counterstatement supported by the record — in his response to McClier's Local Rule 56.1 Statement in support of its motion for summary judgment. "The local rule does not absolve the party seeking summary judgment of the burden of showing that it is entitled to judgment as a matter of law, and a Local Rule 56.1 statement is not itself a vehicle for making factual assertions that are otherwise unsupported in the record."Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003) (internal quotation marks and citation omitted). Thus, although Millin's attempts to controvert McClier's facts by "den[ying] knowledge sufficient to form a belief as to the truth or veracity" of various statements in McClier's 56.1 Statement are insufficient in light of Rule 56's requirement that all statements of material fact by the movant or opponent to "be followed by citation to [admissible] evidence," statements as to which Millin denies knowledge are followed by a citation to record evidence supporting McClier's assertion.
I. Millin's Work History at McClier
In April 2000, McClier, an architectural and engineering services corporation, hired Millin as a construction superintendent and assigned him to the Bank of America ("Bank") Project, where he worked for two months. Paul Troast, McClier's Vice President of Construction, was responsible for the Bank Project. In June 2000, Millin was transferred to the New York Post ("Post") Project. Gregory Gutierrez was the General Superintendent at the Post Project, and the supervisor of all employees at that site.
When Millin learned that he would be transferred from the Bank Project to the Post Project, he expressed his apprehension to Regina "Doe," Troast's secretary, that all employees sent to the Post Project were terminated soon thereafter. (Millin Dep. 156.) In a subsequent conference call with Troast and Gutierrez, Millin again expressed concern about the transfer. In response, Troast and Gutierrez laughed at Millin, and Troast told Millin that he was an asset to the company and therefore had nothing to worry about. (Id. 156-57.)
In fact, the Post Project ended a month ahead of schedule in June 2001.
It is unclear from Millin's submissions in connection with this motion whether or not he perceived this conversation to be hostile or discriminatory. He detailed the conversation during his deposition in response to a question asking for comments "made by McClier employees in terms of along the same lines that we've been talking about." (Millin Dep. 155-56.) But Millin also stated that neither Troast not Gutierrez expressly referred to his race, religion, or national origin during the conference call. (Id. 155-58).
On approximately January 30, 2001, Gutierrez advised Millin that he had been laid off. At that time, McClier contends, Gutierrez informed Millin that "McClier had no other project to transfer him to." (D. 56.1 Stmt No. 60.) According to Millin, in contrast, although Gutierrez did state that work was slowing down, he never claimed there was a lack of work in New York. (P.R. 56.1 Counterstmt. No. 60; Millin Dep. 78-79.) At his deposition, Millin claimed that he challenged Gutierrez's assertion that McClier's work was slowing down, reminding Gutierrez of the several projects Millin himself was working on, but Millin could not remember how Gutierrez responded. (Millin Dep. 78-79.) In addition to lack of work, McClier further asserts that Millin's job performance, length of service, and work experience relative to other similarly situated employees also contributed to his discharge. (Gutierrez Decl. ¶ 26.)
McClier claims that soon after Millin's firing, other employees who were not African-American, Jamaican, or Rastafarian were also laid off from the Post Project, or left and were not replaced. (D. 56.1 Stmt No. 61-62; Gutierrez Decl. ¶¶ 28, 30.) Millin contends, however, in an affidavit in support of this motion, that "[i]n the last month of my employment with Defendant, half of my responsibilities were transferred to Steve Crooke, a Caucasian, non-Jamaican, non-Rastafarian resulting in a decrease in my hours worked per week." (Millin Aff. ¶ 5.)
This may be a reference to a person identified elsewhere in the record as Steve Cooke. (See, e.g., Millin Dep. 33.)
After September 11, 2001, McClier received its first new project since the Post Project. (Gutierrez Decl. ¶ 32-33.) At Troast's direction, his assistant Julie Simmons offered Millin reemployment to work on McClier's new project. (Troast Dep. 32-33.) Millin refused the reemployment offer, as he had already initiated the process of filing his complaint with the EEOC against McClier. (D. 56.1 Stmt No. 67; P. 56.1 Counterstmt No. 67.)
II. McClier's Allegedly Discriminatory Conduct
As evidence that he faced a hostile, discriminatory work environment, Millin points to the following incidents that he testified occurred during the course of his employment with McClier:
• In April or May 2000, while on the Bank Project site, Millin told Troast that he wanted to grow up to be like Troast. Troast replied that "if you want to be just like me, you have to be white and you have to cut your hair." (Millin Dep. 95-96; D. 56.1 Stmt No. 15.)
• In connection with another conversation in which Troast told Millin that his sister was dating a white man with dreadlocks, Troast commented that he found his sister's boyfriend's dreadlocks hideous (D. 56.1 Statement No. 16), and that he felt offended (presumably by the dreadlocks) and could not understand what his sister saw in her boyfriend. (Millin Dep. 110-11; P.R. 56.1 Counterstmt. No. 16.)
• On his first day at the Post Project, Millin removed his tam — a hat worn as a part of the Rastafarian tradition — in order to put on a hard hat, causing his dreadlocks to fall out. (P.R. 56.1 Counterstmt. No. 27; Millin Dep. 80) In the presence of Rick Pospisil, a construction superintendent, Gutierrez responded "Oh my God, how long have you been growing that thing?" (D. 56.1 Statement No. 27; Millin Dep. 82-83.) After Pospisil commented on the length of Millin's hair ("damn, your hair is long" (Millin Dep. 84)), Gutierrez and Pospisil questioned Millin about his hair's length, when he last got it cut, and why he grew it. (D. 56.1 Statement No. 28; Millin Dep. 82-85.) In response, Millin informed Gutierrez and Pospisil that he was Rastafarian. Gutierrez asked "[L]ike Bob Marley?" Pospisil asked Millin whether he was one of those Rastafarians that sit around in huddles and smoke pot. (D. 56.1 Statement No. 30; Millin Dep. 84, 89-90.) Millin explained that his religion forbade him to cut his hair, and that he did not smoke pot or partake in sacrilegious ceremonies. (Id.)
• When Millin was transferred to the Post Project in the summertime, he was moved into one of four trailers at the site, which he initially shared with Otis Woods, an African-American man who worked as a safety engineer at McClier. (Millin Dep. 150-51.) The trailer Millin and Woods shared "had no lights, no [air-conditioning] facilities in the middle of the summer" and was situated "alongside a [s]anitation [d]epartment facility, which means reeking with smell, reeking with flies, pests [and] [a]t some point or another, the electric power was cut to our trailer." (Id.) The trailer was "very hot, very humid, very sticky, very nasty, flies, smell." (Id. 152.) In contrast, Millin alleges, "there w[ere] no problems" in the other three trailers, which had "full and up running facilities." (Id. at 150-51) Millin "constantly" complained about the trailer to Gutierrez, who, Millin alleges, only responded "vaguely about some issue they had with the electricians on the job site." (Id. at 151-52) Electricity and air-conditioning were restored to the trailer when Rick Culp and Andy Elkins, "both Caucasian males" (P. Br. 4-5), were assigned to that trailer. (Millin Dep. 151.)
• While sharing a trailer with Millin, Culp told Millin on several occasions that he wanted to run scissors through his hair, and that Millin looked like a black hippie. Culp also asked Millin "Why do you have to grow that stuff anyway? What's the purpose in that?" (Millin Dep. 105.)
• In September 2000, when Millin told Gutierrez that he felt there was a conspiracy going on at McClier, Gutierrez responded by pointing to a picture of his African-American wife, and asking Millin what conspiracy he was talking about. (D. 56.1 Statement No. 17; Millin Dep. 114-15.)
In his declaration submitted in support of McClier's summary judgment motion, Gutierrez alleges that although he "never made any racial slurs to" Millin (Gutierrez Decl. ¶ 35) and "never had a direct conversation with Mr. Millin regarding his religion," he "assumed that [Millin] was Rastafarian just by observing his dreadlocks" (Id. ¶ 37), and that he and Millin discussed Bob Marley, their "mutual enjoyment of [r]eggae music," and "going to a [r]eggae concert together." (Id. ¶ 38.)
Apparently McClier does not dispute that Culp and Elkins are both white.
The record is unclear as to the precise duration of the substandard conditions in the trailer, but when asked to specify "what months" he and Woods were subjected to those conditions, Millin responded "[l]ike, late June, early August in the hot summer months." (Millin Dep. 150-51.)
In his deposition, Millin also summarily asserted that Culp also commented on his vegetarianism in a way that apparently offended Millin. (Millin Dep. 149.) Millin's vegetarianism is part of his religion as well as "a personal choice." (Id.) Aside from mentioning that he complained to Gutierrez about the comments about his vegetarianism, Millin provided no further details in his deposition, and his brief does not refer to any comment about vegetarianism.
Millin's deposition is unclear about the nature of the "conspiracy" he reported to Gutierrez, although Millin asserts that when Gutierrez mentioned that his wife is African-American, he responded by asking Gutierrez why he "ha[d] to feel that the conspiracy was racial?" (Millin Dep. 114.) When asked to clarify what he meant by the term "conspiracy," Millin replied "Meaning, there was a general clique on the job that became more of a social environment, not feeling a part of the team, alienation and not being a part of the clique. . . . [T]he circle was pretty tight-knight amongst Greg, Rick, Paul . . . and Ron Inberso." (Id. at 114-15.)
III. Harassment Free Workplace Policy
Upon being hired, Millin was provided with a copy of McClier's Employee Handbook, which sets forth the Harassment Free Workplace Policy ("Policy"). The Policy is designed to "assure a workplace free of harassment" and provides for a complaint and investigation process of workplace harassment and discrimination. On April 7, 2000, Millin signed the Acknowledgment Form to acknowledge that he received and understood the contents of the Employee Handbook, including the Policy. Although Millin never contacted the Human Resources Department regarding any claim of harassment or discrimination, Millin told Gutierrez on at least one occasion that he "felt that [he] wasn't accepted there and [he] wasn't welcomed." (D. 56.1 Statement No. 49; Millin Dep. 122-25.) In an affidavit submitted in support of this motion, Millin claims he did not complain to human resources because he feared that Troast and Gutierrez would learn of the complaint, and that he did not wish to jeopardize his relationship with Troast, Gutierrez, or the company. (Millin Aff. ¶ 6.)
The Policy states, in relevant part:
It is the Company's policy to provide and maintain a productive and pleasant atmosphere that is characterized by mutual respect. The company is committed to maintaining a work environment in which every employee is treated with respect and which is free from any type of harassment. This prohibition applies to all regular and temporary employees, contractors, vendors, customers or clients of the Company. No employee of the Company is expected to tolerate any conduct prohibited by this policy.
With regard to the complaint process, the Policy states:
All employees are responsible to assure a workplace free of harassment. Toward that end, the Company strongly encourages any employee who is subjected to any offensive comments or conduct to tell the offending person to cease their behavior. If the employee is not comfortable advising the offending person or if that does not accomplish an immediate and complete stop to any offending comments or conduct, the employee must contact the Vice President, Human Resources (or any other manager they feel comfortable with) immediately to report any incident of harassment or discrimination harassment. Do not allow an inappropriate or unlawful situation to continue by not reporting it regardless of who is creating the situation. No person in the organization is exempt from this policy.
(Emphasis added.) Upon receiving notice of a harassment/discrimination complaint, the policy requires the Vice President of Human Resources to work with the general counsel to investigate the discrimination as well as to ultimately decide what, if any, corrective measures are appropriate.
DISCUSSION
I. Summary Judgment Standard
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." Fed.R.Civ.P. 56©). In turn, a "genuine issue as to any material fact" is established "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "It is the movant's burden to show that no genuine factual dispute exists, and all reasonable inferences must be drawn in the non-movant's favor."Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003) (internal citations omitted); see United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The motion will be defeated with respect to those claims that present such genuine issues of material fact.
To defeat summary judgment, however, 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). "[C]onclusory allegations or unsubstantiated speculation" will not suffice. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Rather, the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 587. The nonmovant "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996); Margo v. Weiss, 213 F.3d 55, 60-61 (2d Cir. 2000).
II. Hostile Work Environment Claims
Millin claims that McClier's alleged race-, religion-, and national-origin-based harassment of him subjected him to a hostile working environment. In order to withstand summary judgment on a hostile environment claim under Title VII, plaintiff must establish that (1) the harassment was so severe as to alter the terms and conditions of her employment, and (2) there is a basis for imputing the harassing conduct to the employer. Distasio v. Perkin Elmer Corp., 157 F.3d 55, 62 (2d Cir. 1998). "[A]n employer is liable for the discriminatorily abusive work environment created by a supervisor if the supervisor uses his actual or apparent authority to further the harassment, or if he was otherwise aided in accomplishing the harassment by the existence of the agency relationship." Karibian v. Columbia Univ., 14 F.3d 773, 780 (2d Cir. 1994). An employer who has notice that an employee is being harassed — notice is presumed where a supervisor is responsible for the harassment — has a duty to take reasonable steps to eliminate the harassment. Distasio, 157 F.3d at 62; Murray v. New York Univ. Coll. of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995). The employer may avoid liability, however, by establishing that it took reasonable steps to remedy the problem, and that the harassed employee unreasonably failed to avail herself of the corrective measures provided by the employer.Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998);Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998).
As "identical standards apply to employment discrimination claims brought under Title VII, . . . New York Executive Law § 296, and the Administrative Code of the City of New York,"Weinstock v. Columbia University, 224 F.3d 33, 42 n. 1 (2d Cir. 2000), plaintiff's state and city human rights law claims will be analyzed in conjunction with his Title VII claims. See, e.g., Torres v. Pisano, 116 F.3d 625, 629 n. 1 (2d Cir. 1997); Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000). Accordingly, conclusions reached on the federal claim will also resolve the corresponding state and city claims.
Conversely, where "a low-level supervisor does not rely on his supervisory authority to carry out the harassment . . . [or] the harassment is perpetrated by the plaintiff's co-workers . . . the employer will not be liable unless the employer either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it." Karibian, 14 F.3d at 780 (internal quotation marks and citations omitted). Neither Millin nor McClier urge the Court to apply the negligence standard for co-worker hostile work environment liability, so the Court need not decide whether there is a genuine issue of material fact as to whether McClier met this lower duty. Moreover, in light of comments by Troast and Gutierrez, and a presumably executive decision to place Millin in the allegedly substandard trailer with Woods, the record presents grounds for the factfinder to reasonably conclude that the alleged hostile work environment was created and/or maintained by Millin's supervisors.
A. Hostile Work Environment
In order to establish that McClier's behavior created a hostile working environment, plaintiff must establish that the harassment was severe or pervasive enough to create an objectively hostile environment, and that he subjectively perceived the environment to be abusive. Alfano v. Costello, 294 F.3d 365, 373-74 (2d Cir. 2002). In general, "incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive," and "[i]solated acts, unless very serious, do not meet the threshold of severity or pervasiveness." Id. at 374. In determining whether allegations of abusive conduct are sufficient to meet the threshold for an objectively hostile environment, courts examine the totality of the circumstances, 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." Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
As plaintiff's race, religion, and national origin are commonly associated with one another, it is difficult, and unnecessary, to consider whether the various allegedly discriminatory incidents that plaintiff relies upon for his hostile work environment claims clearly point to either race-, religion-, or national-origin-based discrimination. "[T]he line between discrimination based on `ancestry or ethnic characteristics,' and discrimination based on `place or nation of . . . origin,' is not a bright one." Saint Francis College v. Al-Khazraji, 481 U.S. 604, 614 (1987) (Brennan, J., concurring) (citations omitted). For example, a reasonable factfinder could construe comments regarding Millin's dreadlocks as related to his race, religion, and/or national origin. Dreadlocks may be, like any other hairstyle, a matter of choice and style; however, dreadlocks are commonly associated with African-American, Rastafarian, and Jamaican culture. Accordingly, rather than attempting to disaggregate the various incidents and their discriminatory impact as to Millin's race, religion, or national origin, the Court will consider the alleged discriminatory incidents against Millin as pertaining to his race, religion, and national origin.
There is evidence in the record that would permit a reasonable factfinder to find that: (1) Troast told Millin that "if you want to [grow up] to be just like me, you have to be white and you have to cut your hair"; (2) Troast told Millin that he found his sister's (white) boyfriend's dreadlocks hideous; (3) Gutierrez and Pospisil commented on and questioned the length and style of Millin's hair, including Gutierrez's references to Millin's dreadlocks as "that thing," and Pospisil's inquiry whether Millin was the type of Rastafarian who sits around in huddles and smokes pot; (4) Culp repeatedly told Millin he wanted to run scissors through his dreadlocks, and characterized Millin as a black hippie; (5) when Millin explained to Gutierrez that he felt there was a conspiracy going on at McClier, in response, Gutierrez pointed to a picture of his African-American wife, asking Millin what conspiracy he was talking about.
McClier correctly points out that Millin's own deposition does not support his assertion in his brief that Pospisil characterized these circles as "sacrilegious ceremonies." (D. Reply Br. 9; P. Br. 11; Millin Dep. 89-90.) When asked "Did [Gutierrez and Pospisil] use that term [sacrilegious]?," Millin responded "They're using do you huddle around in those groups and pass around that bong and spoke pot . . . I don't recall if they used the actual term `sacrilegious.'" (Millin Dep. 89.)
In his Rule 56.1 Counterstatement, Millin avers that "Culp sat directly behind him [in the trailer], only three feet away," but, as McClier points out (D. Reply Br. 9), the record provides no support for any calculation of the actual distance between Culp's and Millin's work stations in the trailer. Millin's deposition only supports the more vague assertion that Culp sat "behind" Millin in the trailer. (Millin Dep. 104-05.) It is undisputed that Millin spent the majority of his day in the field as opposed to in the trailer. (Id. 42.; D. 56.1 Counterstmt. No. 25.) Although neither party argues directly from this evidence, the argument seems to be that the relationship of Millin's desk to Culp's, and/or the amount of time Millin spent in the trailer with Culp, bears on the extent to which Millin was reasonably bothered by Culp's allegedly discriminatory comments.
Taken alone, these incidents could not justify a finding that Millin was subjected to a hostile work environment. A handful of incidents of teasing spread over some nine months of employment could not reasonably be found to be "pervasive" as defined by this circuit. This is not simply a matter of the number of allegedly discriminatory incidents, but of their severity. For example, Gutierrez's reference to his African-American wife, whether or not persuasive as a rebuttal to a perceived charge of racial bias, was not derogatory to Millin or to African-Americans generally; and Troast's reference to his sister's boyfriend's hairstyle, at least on its face, expressed disapproval of a white man, not of African-Americans, Jamaicans, or Rastafarians. The remaining incidents are few, relatively mild, and ambiguous, and do not suffice to constitute a change in working conditions.
However, "there is neither a threshold `magic number' of harassing incidents that gives rise, without more, to liability as a matter of law, nor a number of incidents below which a plaintiff fails as a matter of law to state a claim." Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 439 (2d Cir. 1999) (internal quotation marks and citations omitted). Even a few, relatively mild incidents of biased remarks can permit a factfinder to infer racial, ethnic, and/or religiously-biased motivation for a more serious, even if not explicitly discriminatory, difference in treatment.
Millin testified, and a reasonable factfinder could accept his account, that upon being moved to the Post Project, Millin was placed in a trailer without electricity or air-conditioning, situated next to a sanitation department facility, with another African-American man, and that electricity and air-conditioning were restored to the trailer only after two white men were placed in the same trailer. (Millin Dep. 150-52; P. Br. 4-5.) A reasonable jury could find, based on Millin's testimony, tht conditions in the trailer were very negative indeed: Millin testified to the presence of stench, vermin, and extreme temperatures, and that these conditions persisted for what may have been as much as several summer months, until white employees were assigned to the same trailer. This account of course is disputed, and Millin notably fails to buttress his description of the trailer's conditions with corroborating testimony from Woods, the other African-American employee assigned to the trailer. A jury might well find that conditions in the trailer were not as bad as Millin testified, or that even if they were, they did not materially affect Millin's conditions of employment, or that Millin's assignment to an undesirable work space was not attributable to his race, national origin, or religion. However, on a summary judgment motion, this Court decides not whether a claim is established, but only whether the record presents any genuine issues of material fact appropriate for determination by a jury. On the record presented here, drawing all inferences in favor of Millin, as this Court must on this motion, there are genuine material factual issues as to whether Millin was subject to significantly inferior working conditions that were sufficiently severe and pervasive to constitute an objectively hostile environment, and as to whether such arguably inferior treatment was based on his race, religion, and/or national origin.
Although McClier cites Millin's deposition in support of its assertion that Rick Culp, Wayne Pierson, Andrew Elkins and Valentin Tuhari, white McClier employees, also used the same trailer (D. 56.1 Stmt No. 22), the fact that Millin's trailer eventually included this entire group does not rebut Millin's specific assertion that at an earlier point in time, he and Woods shared the trailer under substandard conditions. McClier's attempt to dispute Millin's testimony regarding the trailer — asserting that "the temporary electricity problem on a construction site is unremarkable" (D. Br. 9 n. 4.) — only confirms the conclusion that the record presents genuine issues of material fact that only a jury can decide.
B. McClier's Liability
McClier argues that, even assuming that plaintiff can establish that he was subjected to a hostile working environment, it is entitled as a matter of law to the affirmative defense set forth in Faragher and Ellerth, because it can demonstrate that (1) it took reasonable steps both to prevent discriminatory harassment and to remedy the harassing conduct promptly once it was brought to the employer's attention; and (2) the harassed employee unreasonably failed to avail himself of any corrective or preventive opportunities made available by the employer.O'Dell v. Trans World Entertainment Corp., 153 F.Supp.2d 378, 388 (S.D.N.Y. 2001) (citing Faragher, 524 U.S. at 807, andEllerth, 524 U.S. at 765).
"Although not necessarily dispositive, the existence of an anti-harassment policy with complaint procedures is an important consideration in determining whether the employer has satisfied the first prong of this defense." Leopold v. Baccarat, Inc., 239 F.3d 243, 245 (2d Cir. 2001). It is uncontested that McClier adopted an anti-harassment policy, that the policy was designed to address workplace harassment, and that Millin was aware of the policy. Nor does Millin challenge the sufficiency of the policy on paper. This is sufficient to meet the first prong of theFaragher/Ellerth defense.
With regard to the second prong of the Faragher/Ellerth defense, McClier argues that Millin unreasonably failed to avail himself of the Policy, noting that Millin himself unequivocally testified that he did not contact human resources regarding the discriminatory comments he claims other McClier employees subjected him to. (P. Br. 17; Millin Aff. ¶ 6; Millin Dep. 124.) However, Millin also claims that he reported various incidents of discrimination to Gutierrez, but that Gutierrez failed to take the proper steps under the policy. (P. Br. 18; Millin Dep. 124-25.) To be precise, when Millin was asked during his deposition whether he invoked the Policy in response to any of the allegedly discriminatory comments made toward him, the following colloquy took place:
Millin claims he did not complain to human resources because he feared that Troast and Gutierrez would learn of the complaint, and that he did not wish to jeopardize his relationship with Troast, Gutierrez, or the company. (Millin Aff. ¶ 6.)
Q: Regarding the [Policy's] complaint process . . . did you ever follow these directives in regard to any of the comments that were made to you?
A: Yes.
Q: Which ones did you follow?
A: Reporting to the manager or supervisor.
Q: Which manager did you report to?
A: Greg [Gutierrez].
A: And what did you report to Greg?
A: Basically, that I felt that I wasn't accepted there and I wasn't welcomed. . . .
Q: Well, did you ever tell any person who was making these [discriminatory] comments to stop making these comments to you?
A: Yes.
Q: Who did you tell?
A: Rick Culp. I mentioned that to Rick. I mentioned it to Greg [Gutierrez].
Q: When did you mention this to Greg?
A: During those discussions that I was having with him during being reprimanded and just overall.
Q: Just overall what?
A: Whenever I had a chance to speak to him about it.
Q: Did you ever contact anyone in the human resources department about the comments?
A: Honestly, no, I did not.
Q: Well, how many times did you tell Greg about the comments that Culp was making?
A: It was an ongoing thing. I just — whenever I got a chance to mention it, I mentioned it. (Millin Dep. 123-24.) In addition, Millin contends that he "constantly" complained to Gutierrez about the substandard conditions of the trailer he was placed in. (Millin Dep 150-52.)
Gutierrez denies that he contributed to, or that Millin ever complained to him about, harassment of Millin or hostile comments directed towards Millin's race, religion, or national origin. (Gutierrez Decl. ¶¶ 36-38, 42.) Gutierrez admits only that he and Millin discussed Bob Marley, their "mutual enjoyment of [r]eggae music," and "going to a [r]eggae concert together." (Id. ¶ 38.) But it is for a jury to determine the relative credibility of Millin's and Gutierrez's differing accounts of their conversations.
McClier's anti-harassment policy does not require that employees report harassment or discrimination to the human resources department. Rather, the policy encourages employees subjected to harassment to report any such incident to "the Vice President, Human Resources (or any other manager they feel comfortable with)." The policy further instructs that "[a]ny Manager/Supervisor who knows or should know of a potential harassment (discrimination) issue must call the Vice President, Human Resources directly." Thus, the record presents a genuine issue of material fact as to whether Millin reported his concerns about discrimination and harassment to Gutierrez, thereby triggering Gutierrez's obligation to contact human resources. Although it is unclear whether Millin reported to Gutierrez only discrimination by co-workers, or complained about discrimination by supervisors Gutierrez or Troast specifically, evidence that Millin complained to Gutierrez at all bars this Court from deciding that Millin unreasonably failed to take advantage of McClier's policy. Thus, as Millin has presented evidence from which a reasonable jury could conclude that Millin complained to Gutierrez in accordance with McClier's anti-discrimination policy, and that Gutierrez failed to report Millin's complaints or take action against them as required by that policy, McClier is not entitled to summary judgment on the basis of theFarragher/Ellerth defense.
III. Wrongful Discharge Claim
A. Standard
On a discriminatory discharge claim, the plaintiff must first establish the "minimal" prima facie case as defined by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). But as the Second Circuit put it in James v. New York Racing Assoc., 233 F.3d 149, 153-54 (2d Cir. 2000), "[t]his requires no evidence of discrimination."
Under the Second Circuit's application of the McDonnell Douglas framework, a plaintiff has the initial burden of showing (1) that he belonged to a protected class; (2) that he was qualified for the position at issue; (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. See Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003); Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002). Meeting this test "creates a presumption that the employer unlawfully discriminated." Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997) (en banc) (internal quotation marks and citation omitted). This presumption "places the burden of production on the employer to proffer a nondiscriminatory reason for its action." James, 233 F.3d at 154. The burden "simply requires the defendant to produce admissible evidence showing `reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action,'" Eatman v. United Parcel Service, 194 F. Supp. 2d 256, 263 (S.D.N.Y. 2002) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (emphasis in original)). If the employer fails to present such a reason, plaintiff prevails.
"On the other hand, once the employer `articulates a non-discriminatory reason' for its actions, the presumption completely `drops out of the picture.'" James, 233 F.3d at 154 (citations omitted). At that point, "the employer will be entitled to summary judgment . . . unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." Id. Evidence casting doubt on the employer's proffered justification "may — or may not — be sufficient" to provide this support. Fisher, 114 F.3d at 1333. Thus, when the employer has proffered an explanation and the plaintiff has attempted to refute it, the Court's responsibility is to "examin[e] the entire record to determine whether the plaintiff could satisfy his `ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.'" Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (citing Reeves v. Sanderson Plumbings Prods., Inc., 530 U.S. 133, 143 (2000)).
B. Application to this Case
1. Millin's Prima Facie Case
Millin has properly alleged a prima facie employment discrimination case. First, Millin is an African-American, Rastafarian, Jamaican man, and therefore a member of protected classes with reference to claims on the grounds of race-, religion-, and national-origin-based discrimination. Second, he was qualified for his work with McClier. Third, Millin was fired. Fourth, Millin asserts that many of his functions were reassigned, at or before his firing, to a white, non-Jamaican, non-Rastafarian. This is sufficient to give rise to an inference of discriminatory intent.
Although there is evidence in the record that Millin submitted a resume including fabricated information when applying for work at McClier, McClier does not dispute that he was qualified for the work he performed, and even asserts that it offered him a return to work. (See D. 56.1 Stmt. No. 8-10, 64-67.)
Millin makes this assertion in an affidavit he submitted in support of this motion. Although McClier correct contends that Millin "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony," Hayes, 84 F.3d at 619, since McClier is unable to point to any previous mention by Millin one way or another as to whether his duties were transferred to another employee, drawing all inferences in favor of Millin on this motion, it is at best arguable whether or not this assertion contradicts Millin's previous testimony. (D. Br. 5-7.) Accordingly, the Court considers Millin's affidavit in deciding this motion.
2. McClier's Legitimate, Non-discriminatory Reasons
As Millin has presented a prima facie case, the burden shifts to McClier to provide legitimate, nondiscriminatory reasons for the adverse employment action that it took against Millin. McClier argues that Millin was not fired for any discriminatory reason, but, rather, that Millin was fired as a result of the "natural winding down" of the project on which he was working. (D. Br. 15; Gutierrez Decl. ¶¶ 21-23; 25-26; see D. 56.1 Stmt No. 51-52.) Indeed, McClier submits (and Millin does not dispute) that projects in the construction industry have varying life expectancies depending on the project's size and complexity, and weather conditions, among other things. (Gutierrez Decl. ¶ 10.) McClier asserts that soon after Millin's firing, non-African American, non-Jamaican, and non-Rastafarian employees left or were also laid off from the Post Project, and were not replaced. (D. 56.1 Stmt No. 61-62; Gutierrez Decl. ¶¶ 28, 30.)
As McClier has pointed to a legitimate non-discriminatory reason for firing Millin, McClier is "entitled to summary judgment . . . unless [Millin] can point to evidence that reasonably supports a finding of prohibited discrimination."James, 233 F.3d at 154.
3. Millin's Showing of Pretext
"[E]xamining the entire record to determine whether the plaintiff could satisfy his `ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff,'" Schnabel, 232 F.3d at 90, Millin has produced sufficient evidence from which a jury could reasonably determine that his termination was motivated by race-, religion-, or national-origin-based animus. For example, Millin asserts that many of his duties were reassigned, at or before his firing, to a white, non-Jamaican, non-Rastafarian. Moreover, taken together with the hostile work environment evidence discussed above, that Millin was fired in January for a project that did not end until June creates a genuine issue of material fact with regards to McClier's real motivation for Millin's termination. Even if, as both parties agree, projects (and therefore employment) in the construction business are in constant flux, that fact alone does not dispositively explain the motivation behind McClier's termination of Millin, particularly in light of the project's duration beyond Millin's term of employment. Neither does the fact that Millin has been "laid of for lack of work at the majority of construction jobs he worked on both before and after left McClier" (D. 56.1 Stmt No. 57; P.R. 56.1 Counterstmt. No. 57) dispose of whether McClier's discharge of Millin was discriminatorily motivated. Moreover, shortage of work does not explain why Millin rather than others similarly situated was selected for layoff, a decision McClier attributes not to a mechanical formula, but a subjective judgment regarding Millin's relative seniority, job performance and work experience. Finally, that McClier offered to reemploy Millin upon acquiring new work would not remedy discrimination after the fact. Even though the factfinder might well conclude that McClier's reemployment offer further suggests that its decision to fire Millin was not motivated by any animus or discriminatory intent, it is not required to so find.
CONCLUSION
Accordingly, McClier's motion for summary judgment is denied.
SO ORDERED.