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In Penta, the plaintiff's supervisor, who harbored discriminatory animus toward the plaintiff, provided the ultimate decision maker, who lacked such animus, with an arguably false account of a sale made by the plaintiff.
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01 CV 2788 (SJ)
May 12, 2003
Joseph a. Saccomano, Jr., JACKSON LEWIS SCHNITISLER KRUPMAN, New York, for Defendant
MEMORANDUM AND ORDER
Massimo Penta (hereinafter "Plaintiff"), proceeding pro se, brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 41 U.S.C. § 1981 ("Title VII"), alleging discriminatory treatment by his former employer, Sears, Roebuck Co. (hereinafter "Defendant" or "Sears"). Plaintiff alleges that he was discharged and that he suffered unequal terms and conditions of employment because of his race and national origin. Presently under consideration is Defendant's motion for summary judgment. For the reasons described herein, Defendant's motion is DENIED in part and GRANTED in part.
BACKGROUND
In the context of assessing this summary judgment motion, the Court views the underlying facts in the light most favorable to Plaintiff, resolving all ambiguities and drawing all inferences in his favor.See Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998),
Plaintiff is a former sales associate for the Sears store located at 5200 Kings Plaza in Brooklyn, New York, Plaintiff was born in Brooklyn, and his parents were born in Italy. (PL Dep. 16-17). He is white. He was hired as a commissioned sales associate in December, 1998 for Sears' Audio Department, where he was paid based on a percentage of his sales. (PL Dep. 174-75, 208-09).
Plaintiff was supervised in the Audio Department initially by Charlie Brown, who is white, and subsequently, and until the time of his termination, by Leon Thomas ("Thomas"), who is black. (PL Dep. 60-64). In or around May 2000, Thomas transferred Plaintiff from the Audio Department to the Video Department. The Video Department was busier than the Audio Department, and commissioned sales associates in the Video Department consequently could earn more money than those in the Audio Department. (PL Dep. 61-62). Plaintiff alleges that at the time he started in the Audio Department, "it was understood that after gaining the necessary experience and if my time, attendance and work performance were satisfactory, I would be transferred to the Video Section" (PL Aff. ¶ 4). Plaintiff maintains that prior to his transfer, two black sales associates with less relevant experience than Plaintiff were transferred to the Video Department. (Penta Aff. ¶¶ 6, 8).
Plaintiff alleges that on "four or five" occasions, Thomas made remarks that Plaintiff found to be derogatory. (PL Dep. 78). Thomas allegedly said, in reference to Plaintiff and to another Italian-American employee, Michael Raviele ("Raviele"), "There they are, Mafioso or Mafia," indicating that Plaintiff "was the boss and Mike was the muscle." (Pl. Dep. 80-83). On another occasion, Thomas allegedly said to Plaintiff, "There he is, Mafia." (PL Dep. 84-85). On still another occasion, Thomas declined to allow Plaintiff and a co-worker to leave for lunch together, stating, "I love to see white people get mad, they get red in the face." (PL Dep. 83). Raviele testified that he witnessed Thomas making comments about his own and Plaintiff's race. (Raviele Dep. 31-32). Raviele testified that such comments were made "many times." Id. However, Raviele and Plaintiff disagree as to whether Thomas' comments were harmless jokes or slurs, and as to whether Plaintiff in turn made comments about Thomas' race. Defendant does not dispute that Thomas made such comments. (See Def. Local Rule 56.1 statement ¶¶ 66-68.)
On October 9, 2000, while Plaintiff was working in the Video Department, two customers approached him and indicated that another sales associate, Hyggens Virgil, who is black, was "screwing up" their sale. (PL Dep. 95). The customers handed Plaintiff a piece of paper listing items they wished to purchase, and next to the items listing prices that were less than Sears' prices. (PL Dep. 95-99).
Plaintiff completed the sale for the customers, discounting the prices of certain items as specified on the list. He discounted the price of a television from $1,899 to $1799, and reduced the price of a stereo system from $950 to $850. (PL Dep. 136). The customers also bought a tape deck for $151, a maintenance agreement for $209, and were charged a $35 delivery fee. (PL Dep. 126-127.) In addition to the $100 discounts on the individual items, Plaintiff gave the customers a ten percent discount. (PL Dep. 136).
Plaintiff and Defendant dispute Plaintiff's motivation for giving the customer the discounts. Plaintiff insists that he discounted the items in accordance with the price matching policy Sears had advertised and which it had instructed its employees to follow. According to this policy, when customers stated that they had found an item for a cheaper price at another store, Sears sales associates were authorized to reduce the price of the Sears item to match the stated price. (Def Rule 56.1 Statement ¶ 14; Pl. Reply to Mot. for Summ. J., Ex. 2). The department in which Plaintiff worked had the following policy:
Find a lower price? We'll match it. Sears Low Price Guarantee. If you find an identical branded item priced lower at another store, Sears will match that price. Just tell your Sears associate at the time of purchase, or up to 30 days after the sale.
(Pl. Dep. 76, 91; 143-144; Def. Mot. for Summ. J. Ex. E, last page, small print) Plaintiff was instructed by Leon Thomas, "We do price match take customers word, within reason, [sic] My rule is 20% difference. If something seems outrageous make a phone call inform Leon [Thomas] or Melvin but take care of our customer." (Pl. Reply to Mot. for Summ. J., Ex. 2). Plaintiff provides the affidavit of Allan Narvadez ("Narvadez"), purportedly the customer to whom the sale in question was made. Narvadez testified that he was given a price at "the Wiz" for a television, stereo and tape deck for a total price of $2,989.83. (Narvadez Aff.). He says, "We then asked Mr. Penta, `can you match this price?' and he said `yes' and rang up the sale." (Narvadez Aff.) Narvadez states that he later explained the sale to Plaintiff's manager, Thomas. During this conversation, Narvadez says, "The only persons present in the office were, Mr. Thomas, myself, my wife and daughter. Mr. Thomas asked us for the receipt and we gave it to him. He asked `where did you get these prices from?' We said the Wiz. He said `okay' and gave us back the receipt." (Narvadez Aff.).
Defendant offers a conflicting account of the circumstances surrounding the sale. Thomas states that the customer in fact told him the discount was not a price match. (Thomas Aff. ¶¶ 10-13). Raviele claims to have witnessed the conversation between Thomas and the customer and corroborates Thomas' account. (Raviele Aff.).
Plaintiff's manager, Thomas, after interviewing the customer, referred the sale to Sears' Loss Prevention Department. (Thomas Aff. ¶ 14.) Asset Protection Manager Kane Smith, who is black, then interviewed Plaintiff about the sale. He asked Plaintiff to prepare a written statement about the sale. In the written statement, Plaintiff did not expressly state that the sale in question was a price match. (Def. Mot. for Summ. J., Ex. E). Plaintiff explains that he made this omission because Smith already knew that the sale was a price match. (Pl. Dep. 138). In this written statement, Penta also admitted that in the past he gave discounts to customers to secure the sale of maintenance agreements. (Def. Mot. for Summ. J., Exh. E). In particular, he stated that "[O]n occasion I would give an additional 10% off a regular price item to sale [sic] an M.A. because I know M.A. are very important and needed by each associate to help Sears because that is what our managers push the most." (Def. Mot. for Summ. J., Exh. E.) According to Defendant, discounting merchandise to secure the sale of maintenance agreements is against Sears policy. (Salomon Aff. ¶ 12.). Sears5 code of conduct policy contains a list of prohibited conduct which could lead to termination, including: theft or dishonesty; failure to follow proper procedures for handling sales; and violation of Company policy. (Def. Local Rule 56.1 Statement ¶¶ 15, 16; Pl. Dep. 159-160).
Smith advised Sears Store Manager Nesly Salomon ("Salomon"), who is also black, about Plaintiff's sale. (Salomon Aff.) Salomon gathered from Smith that Plaintiff had in fact described the sale as a price match (Salomon Aff. ¶ 9); that Thomas had told Smith that the customer said the sale was not a price match (Salomon Aff. ¶ 9); and that in his written statement, Plaintiff did not mention that the sale was a price match (Salomon Aff. ¶ 11), and that also in this written statement, Plaintiff admitted to giving customers discounts to secure the sale of maintenance agreements (Salomon Aff. ¶ 12). Salomon decided to terminate Plaintiff's employment based, he says, "on the inconsistent explanations for the sale and Mr. Penta's admissions in his written statement regarding the sales of maintenance agreements." (Salomon Aff. ¶ 13). But Salomon told Plaintiff, "Because of this sale, I have to terminate you," or "Based on this sale, I have to terminate you," referring apparently to the October 9 sale alone. (Pl. Dep. 117-118; Def. Local Rule 56.1 Statement ¶ 55). After Plaintiff was terminated, he called a company grievance line, and subsequently spoke with Chris Dyson. Chris Dyson told Plaintiff he would have to be fired because he "discounted maintenance agreements." (PL Dep. 121; Def. Local Rule 56.1 statement ¶ 64).
DISCUSSION
At the outset, the Court notes that Plaintiff's pro se status entitles his submissions to be held to less stringent standards than formal pleadings drafted by lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980). Accordingly, the Court will read the papers of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest.' McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quotingBurgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
I. Summary Judgment Standard
Under Fed.R Civ.P. 56(c), a court may grant summary judgment only 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." In a ruling on a motion of summary judgment, a trial court must be limited to "discerning whether there are any genuine issues of material fact to be tried, not to deciding them," Chase Manhattan Bank, N.A. v. TN. PLC, 905 F. Supp. 107, 111 (S.D.N.Y. 1995) (quoting Gallo v. Prudential Residential Servs. Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994)). In determining whether there is enough evidence presented so that a reasonable jury could return a verdict for the non-moving party, the "mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 252 (1986).
Once the moving party has met its burden of demonstrating that there is no genuine issue of material fact to be tried, the burden shifts to the non-moving party to present "specific facts showing that there is a genuine issue for trial." Fed.R Civ.P. 56(e): see also Chase Manhattan Bank, 905 F. Supp. at 112. Mere conclusory allegations will not suffice.
II. Title VII Standard of Review: Discriminatory Discharge
Title VII states, in pertinent part, that it is unlawful for an employer: "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a).
Under Title VII, a plaintiff must carry the initial burden of establishing a prima facie case of discrimination. "In an employment discrimination case, the plaintiff has the burden at the outset of "proving by the preponderance of the evidence a prima facie case of discrimination." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994) (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)); see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). To establish a prima facie case of discriminatory discharge, a plaintiff must show the following: (1) he belongs to a protected class; (2) he was performing his duties satisfactorily; (3) he was discharged; and (4) his discharge occurred in circumstances giving rise to an inference of discrimination on the basis of his membership in that class. See, e.g.,Chambers, 43 F.3d at 37; Rosen v. Thornburgh, 928 F.2d 528, 532 (2d Cir. 1991); Ramseur v. Chase Manhattan Bank, 865 F.2d at 464 (2d Cir. 1989).
Once the plaintiff has established a prima facie case of discriminatory discharge the burden shifts to the employer to articulate, "through the introduction of admissible evidence, 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." Hicks, 502 U.S. at 507 (internal quotations and italics omitted). If the defendant meets this burden, then "the presumption of discrimination raised by the prima facie case is rebutted and drops from the case." Id. (internal quotation omitted). After the defendant has articulated such nondiscriminatory reasons, the plaintiff may show that the reasons were merely a pretext for discrimination, either by presenting additional evidence or by relying on the evidence comprising the prima facie case. See Chambers, 43 F.3d at 38; Hicks, 502 U.S. at 507-08; Fahie v. Thornburgh, 746 F. Supp. 310, 315 (S.D.N.Y. 1990) (the ultimate burden of proving unlawful discrimination remains at all times with the plaintiff.). Accordingly, "a court must enter summary judgment for defendant when the plaintiff (1) fails to put forth a prima facie case, or (2) fails to rebut a defendant's well-presented, non-discriminatory reason for the adverse employment action." Wang v. New York City Dep't of Fin., No. 96-cv-5170, 1999 WL 529550, at *11 (E.D.N.Y. July 21, 1999).
The Second Circuit has recognized that because an employer who discriminates rarely leaves a "smoking gun" attesting to a discriminatory intent, a victim of discrimination is usually unable to prove his claim by direct evidence and must rely instead on the cumulative weight of circumstantial evidence. See, e.g., Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991); Ramseur 865 F.2d at 464-65. Moreover, "the burden of proof that must be met to permit an employment discrimination plaintiff to survive a summary judgment motion "at the prima facie stage is de minimis." Chambers, 43 F.3d at 37 (quoting Dister v. Cont'l Group. Inc., 859 F.2d 1108, 1115 (2d Cir. 1988)). However, where the defendant has made a properly supported motion for summary judgment, "a plaintiff opposing such a motion must produce sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely than not the employee's [race, color or national origin] was the real reason for the discharge."Woroski v. Nashua Corp., 31 F.3d 105, 110 (2d Cir. 1994) (affirming summary judgment for defendant on claim of age discrimination); see also McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997) ("[S]ummary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact."); Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18-19 (2d Cir. 1995) (affirming summary judgment and dismissal of ethnic discrimination claim).
Plaintiff's prima facie case
In the present case, Plaintiff has satisfied the de minimis burden of proof required to permit an employment discrimination claim to survive a summary judgment motion at the prima facie stage. Defendant does not dispute that Plaintiff was a member of a protected class, or that he was discharged. Plaintiff has provided evidence that he was performing his job satisfactorily. In particular, there is evidence that he was given a transfer that amounted to a promotion. (Thomas Aff ¶ 6). Finally, Plaintiff has provided minimal evidence based on which a finder of fact could conclude that his discharge occurred in circumstances giving rise to an inference of discrimination. In particular, he has offered evidence of comments made by his supervisor, Leon Thomas, about Plaintiff's race and ethnicity. "Actions or remarks made by decisionmakers that could be viewed as reflecting discriminatory animus" can give rise to an inference of discrimination. Chervoka v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996); Wang v. N.Y.C. Dep't of Fin., 1999 WL 529550 at *14 (E.D.N.Y.); Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir. 1992) (Even "`stray' remarks in the workplace by persons not involved in the pertinent decisionmaking process . . . may suffice to present a prima facie case . . . and may indeed persuade the factfinder that the plaintiff has carried his or her ultimate burden of persuasion.").
Although Defendant offers the testimony of Raviele, who says that the comments were not serious and were not taken seriously by Plaintiff at the time (Raviele Dep. 31-32), Plaintiff disputes that claim (PL Dep.). The Court declines to find that as a matter of law Thomas' racially pointed comments could not be viewed as reflecting discriminatory animus, and instead leaves this determination to the finder of fact. While the comments comprise only minimal evidence of discriminatory intent, they are sufficient to satisfy Plaintiff's de minimis burden at the prima facie stage.
Defendant argues that Thomas' comments, even if they provide evidence of racial animus, are immaterial because Thomas had no direct input into the decision to terminate Plaintiff. The decision was made rather by Salomon, following an independent investigation by Smith. (See Thomas Aff; Salomon Aff.). There is no evidence that either Salomon or Smith made any comments regarding Plaintiff's race. However, "the impermissible bias of a single individual at any stage of the [terminating] process may taint the ultimate employment decision in violation of Title VII . . . This is true even absent evidence of illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to have the impermissible bias played a meaningful role in the [termination] process." Bickerstaff v. Vassar College, 196 F.3d 435 (2d Cir. 1999).
Thomas was Plaintiff's direct supervisor (see Thomas Aff, ¶ 5) and played a meaningful role in the decision making process by which Plaintiff was terminated. Thomas' account of Plaintiff's October 9 sale was in fact central to the decision to terminate Plaintiff. Furthermore, Plaintiff offers evidence that could lead a finder of fact to conclude that Thomas' description of the sale was knowingly false. See page 13 infra, Thomas alone made the decision to report the sale to Sears' Loss Prevention Department (Thomas Aff. ¶ 14), and Salomon relied on Thomas' account of the sale in making the decision to terminate Plaintiff. In particular, Salomon cited as a reason for Plaintiff's termination the "differing explanations" regarding that sale, referring apparently to the accounts of the sale given to Smith. (Salomon Aff, ¶¶ 9, 13). Besides Plaintiff himself, only Thomas provided Kane Smith with an account of the sale. If Thomas' report was tainted by racial animus, a finder of fact could conclude that entire decision making process was so tainted.
Thus, Plaintiff has presented a prima facie case of discriminatory discharge, and the burden shifts to Defendant to present evidence of a non-discriminatory reason for plaintiff's termination.
plaintiff's non-discriminatory reason for plaintiff's termination
Defendant has offered evidence of a legitimate, non-discriminatory reason for plaintiff's termination. In his affidavit, Nesly Salomon indicates he fired Plaintiff for the following reasons: "the inconsistent explanations for the [October 9] sale and Mr. Penta's admissions in his written statement regarding the sales of maintenance agreements." However, there is evidence to rebut these proffered reasons.
The October 9 sale
Plaintiff has provided evidence based on which a finder of fact could conclude that Thomas9 account of the October 9 sale was false. In particular, the affidavit of Narvadez, asserting that Narvadez told Thomas the sale was a price match, directly contradicts Thomas' account of the sale. If Narvadez's testimony were believed, a fact finder could conclude that Thomas fabricated a story about the sale in order to mask a discriminatory reason for discharging Plaintiff. "A plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Windham v. Time Warner. Inc., 275 F.3d 179, 187 (2d Cir. 2001) quoting Reeves, 530 U.S. at 148: see also Chambers, 43 F.3d at 38 ("The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons, will permit the trier of fact to infer the ultimate fact of intentional discrimination, and. . . . upon such rejection, [n]o additional proof of discrimination is required.') quoting St. Mary's Honor Ctr v. Hicks, 509 U.S. at ___, 113 S.Ct. at 2749 (emphasis in original).
Sale of maintenance agreements
Plaintiff admits that in the past he discounted sales in order to secure the sale of maintenance agreements. Salomon asserts that such sales are a violation of Sears' policy and were at least a contributing factor in plaintiff's dismissal. However, Salomon mentioned to Plaintiff only the October 9 sale, and not the sale of maintenance agreements, as the reason for plaintiff's termination. (Pl, Dep. 117-118; Def. Local Rule 56.1 Statement ¶ 55). Although Chris Dyson asserted that the maintenance agreements were the reason for the termination, Dyson had no input into the decision to terminate Plaintiff, and he made this assertion after the termination had already occurred. (Salomon Aff. ¶¶ 4, 13-20; Def. Local Rule 56.1 Statement ¶ 56).
Even if the evidence does not show that the sale of maintenance agreements is a pretextual explanation for plaintiff's termination, this would not be fatal to plaintiff's claim. "[A] Title VII plaintiff can prevail by proving an impermissible factor was `a motivating factor' without proving that the employer's proffered explanation was not some part of the employer's motivation." Plaintiff would be "entitled to have a verdict in his favor if he could persuade the jury that race was a substantial motivating reason for the adverse employment actions of which he complained . . . a Title VII plaintiff is not required to show that the employer's proffered reasons were false or played no role in the employment decisions, but only that they were not the only reasons and that the prohibited factor was at least one of the `motivating' factors." Fields v. New York State Office of Mental Retardation Developmental Disabilities. 115 F.3d 116 (2d Cir. 1997): see also Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 81 (2d Cir. 2001).
"In sum," as the Chambers court noted, "[plaintiff's] dismissal occurred in debatable circumstances. The conduct and resolution of that debate are properly left to the trier of fact." Chambers, 43 F.3d at at 40 (internal quotations omitted).
III. Hostile Work Environment
The Court briefly addresses plaintiff's hostile work environment claim. A hostile work environment claim arises where the "conduct at issue is so severe or pervasive as to create an objectively hostile or abusive work environment and where the victim subjectively perceives the environment to be abusive." Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 436 (2d Cir. 1999) (internal quotations omitted). Whether an environment "may be considered sufficiently hostile or abusive to support such a claim is to be measured by the totality of the circumstances, including the frequency and severity of the discriminatory conduct, whether such conduct is physically threatening or humiliating, and whether the conduct unreasonably interferes with the plaintiff's work performance." Williams v. County of Winchester, 171 E3d 98, 100 (2d Cir. 1999). While the comments and actions allegedly made by Thomas may offer a window to Thomas' intent, and support a jury's conclusion that Thomas was motivated by racial animus, the Court finds that these comments were not "severe and pervasive" and did not interfere with plaintiff's work sufficiently to support a claim of hostile work environment.
Furthermore, Plaintiff has not provided proof sufficient to support any other claim of unequal terms and conditions of employment. To establish a prima facie case of discrimination in the terms and conditions of employment, a plaintiff must present evidence demonstrating: (1) that he belongs to a class of protected persons; (2) that he was subjected to an adverse employment action; and (3) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination. See Samuel v. Nathan's Famous Operating Corp. 1998 WL 433928 (EDNY 1998). In order to fulfill the second element, Plaintiff must demonstrate that he was subjected to a materially adverse change in the terms and conditions of his employment. Here, Plaintiff has not provided proof sufficient to make such a showing.
IV. Damages
Defendant argues that plaintiff's claims for damages should be limited to compensation for economic loss. Defendant maintains that Plaintiff has alleged no non-economic loss. The Court, however, does not find the record clear on this point. While Plaintiff claimed that he suffered no "physical injuries" or "emotional injuries," (PL Dep. 177), Plaintiff did not answer in the negative when squarely asked, "The damages you're requesting are purely lost wages and lost benefits; is that right?" Instead, Plaintiff suggested that he may have suffered non-economic harm, saying he would have pursued a lawsuit "even if I would have a job that would compensate for what I lost." The Court will accordingly leave it to the finder of fact to determine what, if any, kinds of compensatory damages Plaintiff is entitled to receive.
Defendant also argues that punitive damages are not appropriate where, as here, the employer has made good faith efforts to comply with Title VII. In Kolstad v. Am. Dental Ass'n., the Supreme Court held that "an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer's good-faith efforts to comply with Title VII." 527 U.S. 526, 545 (1999). However, it is not clear that Defendant has proven theKolstad affirmative defense. Defendant has not made clear what its antidiscrimination policy is, and that "it was making good faith efforts to enforce" it. Kolstad, 527 U.S. at 546. Sears only asserts that it had a policy with which Plaintiff was familiar, and cites for this proposition to pages from plaintiff's own deposition that were not submitted along with the exhibits supporting Defendant's motion. Accordingly, the Court declines to find at this stage that Plaintiff would not as a matter of a law be entitled to punitive damages.
CONCLUSION
Plaintiff has provided evidence creating a question of material fact as to whether he was discharged based on unlawful racial bias. However, Plaintiff has not provided evidence sufficient to support a claim of hostile work environment under Title VII. Accordingly, Defendant's motion for summary judgment is DENIED as to the claim of discriminatory discharge, and GRANTED as to the claim of hostile work environment.