Opinion
06 Civ. 3667.
January 9, 2008
PRO SE, ELEANA GENAO, Flushing, NY.
ATTORNEYS FOR DEFENDANT, VENDER, PRICE, KAUFMAN KAMMHOLZ, P.C., New York, NY, By: Jonathan A. Wexler, Esq.
OPINION
Defendant, Avon Salon Spa ("Avon" or the "Defendant") has moved pursuant to Rule 56, Fed.R.Civ.P., to dismiss the complaint of Eleana Genao, pro se ("Genao" or the "Plaintiff"), alleging a hostile work environment and retaliatory and discriminatory discharge. For the reasons set forth below, and in the absence of any substantive opposition by Genao, the motion is granted, and the complaint is dismissed.
Genao filed her complaint pro se on May 15, 2006. Genao attached to the Court's pro se form complaint numerous documents arising from the investigation of the complaint that she filed with the New York City Commission on Human Rights (the "City Commission"). On September 1, 2005, the City Commission dismissed Genao's complaint and determined that there was no probable cause to believe that Avon had engaged in the unlawful practices alleged by Genao, and then affirmed that determination, pursuant to Genao's appeal thereof, on November 29, 2005 (Def. Mot. Ex. 1). The Equal Employment Opportunity Commission adopted the City Commission's findings, and issued a Dismissal and Notice of Rights on February 9, 2006. Id.
After discovery and the deposition of Genao, Avon submitted the instant motion on April 25, 2007.
The Facts
The facts are set forth in Avon's Rule 56.1 Statement. Genao has not rebutted those facts in any appropriate form, therefore, except where otherwise noted, the facts as stated by Avon are hereby adopted and summarized below.
In light of her pro se status, Genao's failure to submit a Local Civil Rule 56.1 Statement is not fatal to her opposition here. See, e.g., McAllister v. New York City Police Dep't, 49 F. Supp. 2d 688, 693 n. 2 (S.D.N.Y. 1999) (noting that, despite the failings of the pro se plaintiff's purported Local Civil Rule 56.1 Statement, "it is well settled that a pro se's papers are to be read liberally," and concluding that, "to the extent that [the plaintiff] sets forth facts based upon personal knowledge in his signed briefs, his affidavits and his Rule 56.1 Statement, the Court will consider those facts and will not deem admitted contrary facts in the [defendant's] Rule 56.1 Statement"); Burke v. Royal Ins. Co., 39 F. Supp. 2d 251, 257 (E.D.N.Y. 1999) (addressing the merits of a defendant's motion for summary judgment against a pro se plaintiff "in light of the entire record before the Court," despite plaintiff's failure to submit a Local Civil Rule 56.1 Statement "or to present factual material in evidentiary form"). To the extent Genao's submission contains facts based on personal knowledge or otherwise admissible evidence, those facts will be considered in conjunction with the instant motion.
Genao was hired by Avon on or about December 16, 2003, as a hair styling assistant in the Avon Salon Spa (the "Salon"), which was located in Trump Tower, 725 Fifth Avenue, New York, New York (Def. 56.1 ¶ 3). The Salon, which was permanently closed in June 2006, provided beauty and personal care services to Avon clients. Genao, who is Hispanic, was interviewed by the Salon's General Manager, Jill-Marie DePrado, who is Caucasian, and DePrado offered Genao the job at the Salon (Def. 56.1 ¶ 4).
As an assistant at the Salon, Genao was responsible for assisting the stylists and technicians who performed hair care services for Avon's clients. An assistant's duties included, among other responsibilities, blow-drying and shampooing clients' hair; cleaning and laying out the stylists' equipment (hair brushes, combs, scissors, etc.); serving water and coffee to clients; checking clients' coats; and providing clients with robes (Def. 56.1 ¶ 5).
Beginning in April 2004, Genao's immediate supervisor was Arleen Navarro, who is Hispanic (Def. 56.1 ¶ 6). According to the Defendant, during the time that Genao worked under Navarro's supervision, and until her discharge in December 2004, Genao's performance and attitude toward her work were substandard (Def. 56.1 ¶¶ 8, 9).
On May 12, 2004, DePrado and Glenda Adams, a representative of Avon's Human Resources department, met with Genao to discuss their concerns regarding her performance. At this meeting, DePrado reiterated Avon's expectations regarding Genao's performance and conduct, including the need for Genao to act in a professional manner, take direction willingly, and avoid confrontation with Avon management and employees. DePrado prepared a written "final warning" memorializing the May 12, 2004 discussion with Genao, which Genao signed (Def. 56.1 ¶ 10, Ex. A).
At the end of August and beginning of September 2004, Navarro and Nasreen Davidson of the Avon's Human Resources department met with Genao again to discuss ongoing concerns regarding her performance. Pursuant to that meeting, on September 2, 2004, Navarro and Davidson issued a counseling memorandum to Genao, which memorialized the content of the meeting, including a list of "performance objectives" discussed. Genao signed the memorandum (Def. 56.1 ¶ 13; Navarro Aff. Ex. A).
In October 2004, several Hispanic assistants, including Genao, approached Navarro to report that a stylist at the salon, George Crittenden, had made a racially discriminatory remark. According to Genao, Crittenden said, "Don't give that fucking bitch Eleana any blow dries, these fucking Latinos are going to bring this place down" (Compl.; Def. 56.1 ¶ 19). Genao testified in her deposition that she did not hear Crittenden make the remark first-hand, but rather, she heard about it after the fact (Genao Dep. 48-49, 62).
According to Avon, Navarro promptly investigated the complaint pursuant to Avon's Professional Conduct Policy, which prohibits discrimination and harassment based on employees' protected characteristics (Def. 56.1 ¶ 19). Crittenden admitted to making the comment and, at Avon's suggestion, apologized for it, and Navarro issued Crittenden a written warning as a result of the remark (Id.).
Other than the remark by Crittenden, Genao testified in her deposition that she never heard or learned of any comment, remark or statement with any racial or other discriminatory content made during her employment at Avon (Genao Dep. 62).
At the end of August 2004 and again on November 4, 2004, Genao met with representatives of Avon's Human Resources department to lodge complaints about her treatment at the Salon. With one exception (namely, Genao's raising the Crittenden remark again), none of Plaintiff's complaints involved any claim of harassment or discrimination on the basis of race, national original or any other protected characteristic. Nevertheless, Avon investigated Genao's complaints, and issued several counseling memoranda to Salon employees where Avon concluded that Genao had been spoken to unprofessionally, albeit not discriminatorily (Def. 56.1 ¶¶ 14, 15, 23). Plaintiff acknowledged that no harassment of her occurred before August 18, 2004 (Genao Dep. 56).
According to Defendants, as result of continuing problems concerning Genao's poor performance and lack of cooperation, Avon decided to terminate her employment. On December 8, 2004, Navarro and Davidson met with Genao to discharge her. (Def. 56.1 ¶ 26). Genao filed a complaint with the City Commission on February 5, 2005.
The Summary Judgment Standard
In deciding a motion for summary judgment, a court shall render judgment "forthwith if 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(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). A material fact is one that would "affect the outcome of the suit under the governing law," and a dispute about a genuine issue of material fact occurs 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); R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997).
The moving party has the initial burden of showing that there are no material facts in dispute, Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970), and can discharge this burden by demonstrating that there is an absence of evidence to support the nonmoving party's case, Celotex, 477 U.S. at 325. The nonmoving party then must come forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), as to every element "essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
The court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion."Eastway Constr. Corp. v. New York, 762 F.2d 243, 249 (2d Cir. 1985). However, the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249. If there is not, summary judgment is proper. See id. at 249-50.
The Claim of a Hostile Work Environment is Insufficient
Under Title VII, an actionable hostile work environment exists only where there is "evidence that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment." Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000). "This test has 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 the environment to be abusive.'" Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)). The Second Circuit has stated that "incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive."Alfano, 294 F.3d at 374 (citation omitted). "Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness." Id. (citing Brennan v. Metropolitan Opera Ass'n, 192 F.3d 310, 318 (2d Cir. 1999)). Rather, "[i]nstead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments." Whidbee v.Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000) (citing Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997)). In addition, to establish a hostile environment claim, a plaintiff must show that "a specific basis exists for imputing the objectionable conduct to the employer." Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997).
Genao's claim is based largely on only one comment containing any racial or national origin content, i.e., Crittenden's remark about not giving Latino Assistants blow dries to do, and Genao was not present when the comment was made (Genao Dep. 48-49, 62). In addition, because this statement was allegedly made by a non-supervisory co-worker, who was reprimanded by Avon, Genao cannot satisfy the requirement that the conduct at issue be imputed to Avon. See, e.g., Perry, 115 F.3d at 153 (citations omitted).
In Fierro v. Saks Fifth Avenue, 13 F. Supp. 2d 481 (S.D.N.Y. 1998), a Italian-American plaintiff's allegations that his supervisor repeatedly called him "WOP," "Joey Buttafucco" and a "Cadillac salesman," and referred to another employee as a "little spic" were deemed insufficient to support his claim that he had been subjected to a hostile working environment. "Conduct that is merely offensive and not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive-is beyond Title VII's purview." Id. at 494 (citing Torres v. Pisano, 116 F.3d 625, 631 (2d Cir. 1997)).
The conduct on which Genao rests her hostile work environment claim does not reach a level of behavior that is sufficiently severe or pervasive to alter the conditions of her employment.
The Retaliation Claim is Dismissed
In order to establish a prima facie case of retaliation, a plaintiff must show that (1) she engaged in protected activity; (2) her employer was aware of the protected activity; (3) an adverse employment action followed; and (4) a causal connection between the protected activity and the adverse employment action existed. Gordon v. New York City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000) (citation omitted); Cruz, 202 F.3d at 566 (citation omitted); Greene v. Trs. of Columbia Univ., 234 F. Supp. 2d 368, 380 (S.D.N.Y. 2002).
Genao has failed to establish a prima facie case of retaliation because she has not shown a causal connection between her participation in the group complaint about Crittenden's comment and her termination. Genao's poor job performance was well-documented and a reasonable jury could not conclude that her complaint triggered a retaliatory termination. See, e.g., Knight v. City of New York, 303 F. Supp. 2d 485, 497 (S.D.N.Y. 2004) (holding that plaintiff's undisputed poor performance precluded showing of causal connection prong of prima facie case); Payne v. MTA New York Transit Auth., 349 F. Supp. 2d 619, 629 (E.D.N.Y. 2004) (holding that documented deterioration in plaintiff's job performance prior to complaint precluded showing of causal connection prong of prima facie case). In order to overcome this deficiency in her claim, Genao "may not rely on conclusory assertions of retaliatory motive." Washington v. County of Rockland, 373 F.3d 310, 321 (2d Cir. 2004) (internal quotation marks and citation omitted).
Even if Genao established a prima facie case of retaliation, under the well-known burden-shifting framework established byMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), the burden would then shift to Avon "to articulate a legitimate, non-retaliatory reason" for her termination. Giannone v. Deutsche Bank Sec., Inc., 392 F. Supp. 2d 576, 592 (S.D.N.Y. 2005); Young v. Rogers Wells LLP, No. 00 Civ. 8019 (GEL), 2002 WL 31496205, at *6 (S.D.N.Y. 2002). If a defendant successfully proffers a non-retaliatory reason, "the burden reverts back to the plaintiff to demonstrate that those reasons are merely pretextual." Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-07 (1993)). Avon has offered legitimate, not-retaliatory reasons for terminating Genao's employment, and Genao has not shown that Avon's reasons were pretextual.
Genao had received warnings and counseling memoranda before she joined other Salon assistants in complaining to Navarro about Crittenden's comment in October 2004. In May of 2004, and again in August of 2004, Genao was given written warnings and counseling as a result of her substandard performance and behavior, and received verbal counseling on a regular basis, all well before the October 2004 complaint about Crittenden (Def. 56.1 ¶¶ 9, 12). The sworn affidavits of Genao's supervisors demonstrate that Plaintiff's job performance was well below Avon's standards. Genao has not offered evidence to the contrary.
Poor work performance is consistently recognized in this Circuit as a legitimate, non-discriminatory reason for termination in the retaliation context. See, e.g., Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (affirming summary judgment for the employer where there was uncontroverted evidence that the plaintiff's work was below standard); Giannone, 392 F. Supp. 2d at 592 (finding that employee's failure to get along with her supervisor was legitimate non-discriminatory reason for termination of employment); Chi Ho Lin v. New York City Admin. for Children's Svcs., No. 99 Civ. 10314 (LAP), 2003 WL 21973361, at *7-8 (S.D.N.Y. 2003) (finding that the plaintiff's well-documented disciplinary record justified dismissal of retaliation claim);Young, 2002 WL 31496205, at *8 (dismissing retaliation claim where evidence that plaintiff was discharged "for poor performance" was "overwhelming"); see also Jenkins v. Bd. of Educ., 64 Fed. Appx. 801, 804-05 (2d Cir. 2003) (noting that the "record [was] rife with examples of [Plaintiff's] shortcomings" and affirming dismissal of Plaintiff's retaliation claim).
The evidence of Genao's consistently poor work performance satisfies Avon's requirement of setting forth a legitimate, non-retaliatory reason for terminating Plaintiff's employment. Genao has offered no factual evidence that Avon's legitimate, non-retaliatory reason was pretextual and has presented no evidence to establish that her complaint about Crittenden's remark played any role in Avon's decision to terminate her employment.
Avon treated the group complaint to management about Crittenden's comment seriously and appropriately. Avon promptly investigated and Crittenden was reprimanded, was asked to apologize and did so, and was given a written warning (Def. 56.1 ¶¶ 19, 23). Avon also promptly investigated Genao's other complaints concerning her co-workers' treatment of her, none of which involved race or national origin, and the investigation resulted in counseling memoranda being issued to two of Genao's co-workers (Def. 56.1 ¶¶ 14, 15). Where an employer takes "prompt and appropriate steps in response to [an employee's] complaint to management," dismissal is required under Title VII.Perry, 115 F.3d at 153-54.
The Discriminatory Discharge Claim is Dismissed
Under McDonnell-Douglas, a plaintiff in a Title VII employment discrimination case has the initial burden of establishing a prima facie case by pointing to evidence in the record demonstrating that she: (1) is a member of a protected class; (2) was performing her job satisfactorily; (3) suffered an adverse employment action; and (4) the adverse employment action took place under circumstances that give rise to an inference of discrimination. See McDonnell-Douglas Corp., 411 U.S. at 802-05. Only if the plaintiff meets this initial burden will the burden then shift to the defendant to produce evidence that the adverse employment action was taken for some legitimate, non-discriminatory reason. See Burdine, 450 U.S. at 254-55. If the defendant articulates a legitimate non-discriminatory reason for its action, "the presumption raised by the prima facie case is rebutted, and drops from the case." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (quoting Burdine, 450 U.S. at 255 n. 10). The plaintiff then has the ultimate burden to demonstrate by a preponderance of the evidence that the articulated reason offered by the defendant for the adverse employment action is merely a pretext for actual discrimination. Mandell v. County of Suffolk, 316 F.3d 368, 380-81 (2d Cir. 2003).
Here, Genao has failed to allege a prima facie case of discriminatory discharge, as she has not established the second and fourth prongs of the McDonnell-Douglas test.
Genao has not established that she performed her duties satisfactorily. See Burrell v. Bentsen, No. 91 Civ. 2654 (NRB), 1993 WL 535076, at *7, (S.D.N.Y. 1993) (holding that an employee who "behave(d) in a manner that was disruptive and disturbing to his co-workers" failed to establish satisfactory job performance).
In addition, Genao has not established that Avon's decision to terminate her was made under circumstances that would give rise to an inference of discrimination based on her ethnicity.
Although Genao made other complaints about her treatment in August 2004 and again in November 2004, these complaints did not involve any discriminatory comments or actions. Moreover, the inappropriate ethnic comment in question was not made by a person who had anything to do with Avon's decision to terminate Plaintiff from her job. "It is well settled that stray racial remarks made by persons not involved in making the adverse employment decision are not sufficient to establish an inference of discrimination." Yarde v. Good Samaritan Hosp., 360 F. Supp. 2d 552, 560 (S.D.N.Y. 2005) (citations omitted). See also Godfrey v. Ethan Allen, Inc., 1997 U.S. App. LEXIS 12334, at *9 (2d Cir. May 23, 1997). Indeed, even if made by a decision maker, stray remarks, " without more," "do not constitute sufficient evidence to make out a case of employment discrimination." Danzer v. Norden Systems, Inc., 151 F.3d 50, 56 (2d Cir. 1998) (citing Woroski v. Nashua Corp., 31 F.3d 105, 109-10 (2d Cir. 1994) (emphasis in original). See also Burrell, 1993 WL 535076, at *8; cf. Schreiber v. WorldCo, LLC, 324 F. Supp. 2d 512, 518-19 (S.D.N.Y. 2004) (collecting cases).
Furthermore, the same person who hired Genao in December 2003, namely the Salon's General Manager, Jill Marie DePrado, also issued her a final warning just five months later and ultimately approved her termination in December of 2004. "When the same actor hires a person already within the protected class, and then later fires that same person, `it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire.'" Carlton v. Mystic Transp., Inc., 202 F.3d 129, 137 (2d Cir. 2000) (quoting Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997)). Invidious discrimination is especially unlikely "when the firing has occurred only a short time after the hiring." Grady, 130 F.3d at 560 (citations omitted). See also LeBlanc v. Great American Ins. Co., 6 F.3d 836, 847 (1st Cir. 1993) (affirming dismissal of discrimination claim by employee who was hired and fired by the same individual within a period of less than two years); Lowe v. J.B. Hunt Transp., Inc., 963 F.2d 173, 174-75 (8th Cir. 1992) (same).
From April 2004 until her termination some eight months later, Genao's direct supervisor was Arleen Navarro, who is herself Hispanic. Navarro was also dissatisfied with Genao's job performance, and in early September 2004, Navarro issued a counseling memorandum in an effort to have Genao improve her performance. Genao has not submitted any evidence that her job performance and attitude improved prior to her dismissal in December 2004.
In an effort to establish an inference of discrimination, Genao has cited a single inappropriate comment relating to race, which she was not present to hear and only learned about later, made by a non-supervisory co-worker who was subsequently reprimanded. Genao's allegations are insufficient to give rise to an inference of discrimination in light of the circumstances of her termination, including the fact that she had a long and well-documented poor performance record; that the person who hired her was the same person who approved her termination; that her supervisor, who took part in the decision to fire her, was the same race as she (as were approximately half of the Salon's assistants); and that her termination occurred less than one year after she was hired.
Genao's claim that her discharge was discriminatory is without merit and is dismissed.
Conclusion
For the foregoing reasons, the motion of Avon is granted and summary judgment will be entered dismissing the Complaint.
It is so ordered.