Opinion
INDEX NO. 150713/2017
07-08-2019
KEVIN KINNEY v. DUANE READE INC. et al.
NYSCEF DOC. NO. 77 PRESENT: MOT. DATE MOT. SEQ. NO. 001 The following papers were read on this motion to/for __________
| Notice of Motion/Petition/O.S.C. — Affidavits — Exhibits | NYSCEF DOC No(s).__________ |
| Notice of Cross-Motion/Answering Affidavits — Exhibits | NYSCEF DOC No(s).__________ |
| Replying Affidavits | NYSCEF DOC No(s).__________ |
This is an action for race and sexual orientation discrimination and unlawful retaliation in violation of the of the New York State Human Rights Law, Executive Law § 296, et seq. (the "State HRL") New York City Human Rights Law, N.Y.C. Admin Code § 8-101, et seq., (the "City HRL"). Defendants Duane Reade, Inc. ("Duane Reade"), Walgreen Co. ("Walgreens"), and Walgreen Boots Alliance, Inc. (collectively, "Defendants") now move for summary judgment. Plaintiff opposes the motion. The motion has been timely brought after note of issue was filed. Therefore, summary judgment relief is available. For the reasons that follow, the motion is denied.
On a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor, without the need for a trial (CPLR 3212; Winegrad v. NYU Medical Center, 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). The party opposing the motion must then come forward with sufficient evidence in admissible form to raise a triable issue of fact (Zuckerman, supra). If the proponent fails to make out its prima facie case for summary judgment, however, then its motion must be denied, regardless of the sufficiency of the opposing papers (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Ayotte v. Gervasio, 81 NY2d 1062 [1993]).
Granting a motion for summary judgment is the functional equivalent of a trial, therefore it is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1977]). The court's function on these motions is limited to "issue finding," not "issue determination" (Sillman v. Twentieth Century Fox Film, 3 NY2d 395 [1957]).
Plaintiff is hired
Many of the relevant facts are sharply disputed and are as follows. Plaintiff is forty-four years old, Caucasian and openly gay. Plaintiff started working at Duane Reade in February 2014 as a "Shift Lead". Defense counsel represents that a Shift Lead is a non-management, hourly, non-exempt, unionized position. However, defendant's District Manager, Luna Hai, testified that Shift Leads "are management and they are allowed to be in the building as management". Shift Leads oversee store operations when Assistant Store Managers and Store Managers are not in the store. Hai further stated that it is not unusual for defendants' stores to be without a Store Manager or Assistant Store Manager. Plaintiff states in his affidavit that "[he] was trained and told by a number of [his] supervisors that Shift Leads are considered members of 'management,' and that when a Shift Lead is left in sole charge of a store, he or she is considered the acting Store Manager of that store."
When plaintiff began working for defendants at its York Avenue store, plaintiff claims he was one of two Caucasian employees out of a staff of more than thirty there. Plaintiff explains in his affidavit that his coworkers treated him differently because he is Caucasian and gay. He claims that his coworkers gossiped about him, discouraged him from applying for higher level positions with defendant, excluded him and did not provide the same level of training as to other employees. Plaintiff further contends that his supervisors, Store Managers Angel Velez and particularly Stephanie Martinez, "would write [him] up excessively for minor things, like not being neat enough." Plaintiff further states:
One time, they wrote me up for leaving my manager's card at the cashiers' station, even though other people did the same thing but were not disciplined. Also, instead of following the progressive discipline policy, they violated the policy by giving me three written warnings on the same day for the same thing, each supposedly representing a separate step in the discipline process (informal discussion, formal discussion, final warning). It felt like they were trying to set me up to be fired.
Plaintiff maintains that despite this poor treatment, he still performed his job well. For example, plaintiff claims that he was often left in charge of the store as acting Store Manager.
Plaintiff is transferred and applies for a promotion
In April 2015, plaintiff was transferred to another store. He claims he was told by his supervisor the transfer was necessary "because they needed a 'male Shift Lead' there." Velez, testified at his deposition that his then-district manager, Vinny Natale, decided to transfer plaintiff because someone had resigned at another store. According to Velez, even though plaintiff wasn't satisfactorily performing his job duties as Shift Lead, Velez wanted to keep plaintiff at his store. Velez explained:
Q. But not so bad you wanted to demote him or let him go?
A. No. Again, I'm a training manager. We don't give up on our people. My whole thing is to get Kevin to point B from point A. That is just my goal. I don't give up on anyone. That is it. I was not going to give up on Kevin.
Regarding the transfer, Velez testified:
Q. The phone call from Mr. Natale was the first you heard about it?
A. Yes.
Q. Did he give any other reason other than you needed somebody at the other store?
A. No, he wanted me to send someone who was capable of getting to the ASM level, someone who was good. I thought it was an opportunity for Kevin so I stated so. I wasn't happy at first but we don't have any authorization of any transfers. That was the Duane Reade way.
Q. When Mr. Natale called you, did he say I need someone transferred or he said I need Kevin?
A. "I want Kevin."
Q. You didn't suggest Kevin?
A. No.
Q. Was the store he was being transferred to lower volume than your store?
A. Yes.
Q. Did you have any other discussion with Mr. Natale or anyone else about Kevin's transfer or why he was being transferred?
A. No.
Q. What did you do after your call with Mr. Natale?
A. I spoke to Kevin about it.
Q. What was discussed?
A. I said, "Kevin, you're being transferred to store 370," and he was not happy about that.
Q. Did you tell him the reason?
A. I said, "There is an opportunity in another store. Shift lead had just quit. There is an opening and DM wants you."
Q. What else was discussed, as far as you can remember, in that conversation?
A. That would be it. I mean, I was, at first I was hurt by it. I didn't want Kevin to leave. He didn't want to go. He was shocked, but we don't have any say towards that.
Q. You had nothing to do with his transfer?
A. Absolutely not.
Q. What was Kevin's reaction? You mentioned he was not happy.
A. He wasn't happy.
Plaintiff claims that when he left, no one wished him well, thanked him "or even acknowledge[d] that [he] was leaving, even though these courtesies were provided to other employees who had left the store."
At the second store, plaintiff was also a Shift Lead with the same job duties. In 2016, plaintiff sought to become an Assistant Store Manager - Trainee ("ASMT"). This was a relatively new position designed to train Shift Leads to become Assistant Store Managers. Defendants explain that typically a Store Manager would recommend a Shift Lead for promotion to the District Manager, The District Manager would then decide whether to promote the Shift Lead.
He claims that his supervisor, Ann-Marie Fullerton, recommended him to then-District Manager Luna Hai for the ASMT position. Plaintiff claims that on one of Hai's visits to the store, she told Kevin he should apply for the ASMT position. Fullerton admits that she recommended plaintiff for the ASMT position despite him having a problem with his temper:
A. Well, I explained to him the functions, what he needed to achieve in order for him to be promoted.
Q. What did he need to achieve?
A. I know for one he needed to control his temper.
Q. You thought he had an issue with his temper?
A. Yes.
Q. Why do you say that?
A. Because more than -- I sent him home once already because he had an outburst.
Q. What was the outburst?
A. I can't remember exactly what but I know his outburst was so inappropriate that I sent him home.
...
Q. What exactly was the outburst?
A He was angry when he should have just been calm and I couldn't talk to him, so I asked him to go home. Then he came back, he apologized and we talked about it but it happened more than once.
...
Q. Was that the only example of temper issues you observed?
A. No, always his temper. More than once, more than twice.
Q. Towards you or other people?
A. Towards customers and towards employees.
Q. Do you recall any other specifics or any other examples of that?
A. No.
Other than that testimony, Fullerton did not recall any details of plaintiff's purported anger management issues. Fullerton further admitted that despite observing multiple incidents concerning plaintiff and his temper, she never wrote him up on this issue.
In May 2016, plaintiff submitted a formal application for the ASMT position. Plaintiff, however, was never promoted to this position. Plaintiff also claims that Velez recommended him to District Manager Hai as well.
Hai testified at her deposition that Fullerton did not recommend plaintiff for the ASMT position. Hai also claimed that she did not know plaintiff was gay.
Plaintiff is assaulted and terminated
Meanwhile, on July 16, 2016, plaintiff was assaulted by a man who plaintiff believed to be a shoplifter. Surveillance video of the incident has been provided to the court. At approximately 3:15pm that day, plaintiff was outside the store. Plaintiff claims that while he was outside, an unidentified man walked up to him and inquired about returning a high value hair care product. The proffered reason for the return was because his aunt was allergic. Plaintiff asked if the man had a receipt. The man responded that he did not have the receipt because he had been "mugged". Plaintiff asked if the man knew which store the item was purchased at, so as to look up the purchase. To this, the man also said no. Ultimately, plaintiff told the man that he wouldn't be able to accept the return but that the man could come back to the store on another day and speak to his supervisor.
The man then became angry. The ensuing events were captured on the surveillance video. Plaintiff re-entered the store. He claims the man, who was still outside the store, yelled at him and called him a "faggot". Plaintiff turned around and started arguing with the man. Plaintiff seemingly gestured toward the surveillance video camera in the store. Plaintiff then went to push the door closed. The man pushed himself into the store and punched plaintiff in the face. Plaintiff followed the man out of the store. The altercation escalated, with plaintiff being punched several more times. Bystanders intervened. Plaintiff explains that he stayed outside so he could tell police which way the man went. Plaintiff then called 911. The police responded but were unable to apprehend the man.
Plaintiff states in his affidavit that he finished his shift, with "a black eye and bruises on his head" because he "was the only manager on duty and did not want to leave the store without a manager."
On July 19, 2016, plaintiff was interviewed by a Duane Reade Asset protection manager, Jakob Orlando. Orlando is Caucasian. Fullerton was present at the interview. During the interview, Orlando allegedly took issue with plaintiff's conclusion that the man had shoplifted the hair care item, inferring that plaintiff was racist.
Plaintiff was asked and did put his statement of events in writing. Plaintiff's statement generally conforms to this recitation of facts. It bears noting that plaintiff included in his statement that the man had called him a faggot.
According to plaintiff, either Fullerton or Orlando then told him he was suspended pending investigation and should go home. Plaintiff claims that Fullerton also told him he did nothing wrong. Fullerton testified that she was told by Orlando to tell plaintiff to go home and that she would call him. Fullerton further stated:
Q. You told Kevin to go home and you would call him?
A. Yes.
Q. At any time before that did you ever contact Luna Hai about this incident?
A. No.
Q. What about Michael Guyer?
A. I can't remember.
Q. What about anybody else other than Kevin and Jacob Orlando?
A. No.
...
Q. What happened next after you told Kevin to go home?
A. Nothing for a while and then I got an e-mail from HR, telling me to call Kevin and tell him he is terminated for violation of company policy.
Q. Who in HR?
A. Mike Guyer.
Q. What else did the e-mail say, if you can recall?
A. That is it.
Q. Did he specify what policy?
A. No.
Q. Did you have any verbal discussion with Mike Guyer about that?
A. No.
Q. Before getting the e-mail from Guyer instructing you to terminate Kevin, had you communicated in any way with Luna Hai about the accident?
A. I can't remember.
Q. Would it be typical for you to be in contact with the district manager about this type of incident?
A. Yes.
Q. When you received the e-mail from Mike Guyer instructing you to terminate Kevin, what did you do next?
A. I just called Kevin and told him.
...
Q. What was discussed in that conversation?
A. Just what was said in the e-mail and I told him -- I wished him all the best and he apologized again. He told me was sorry he didn't speak the truth to me and I said, "If you need anything, I am here for a reference or anything."
Three days later, Fullerton told plaintiff he was terminated. He claims he was not given any reason and was not told that he had violated any policy.
Regarding plaintiff's termination, defendants represent that District Manager Hai and HR Generalist Michael Geyer (the same Guyer which Fullerton referred to in her deposition) were the sole decisionmakers. At her deposition, Hai explained that she contacted Geyer to seek his counsel regarding the 7/16/16 incident. As an HR Generalist, Geyer explained at his deposition that he handled human resources issues concerning unionized employees at defendants' stores. Geyer had never met plaintiff prior thereto.
According to Hai and Geyer, they reviewed the surveillance video, and concluded that plaintiff should be terminated because he violated defendants' policy regarding managing confrontational customers. Hai didn't have a "recollection" of whether she reviewed plaintiff's written statement:
Q. You didn't review his written statement?
A. I don't have recollection of that.
Q. You didn't discuss that with Mr. Geyer or anyone else about what prompted Kevin to turn around?
A. I don't recall that.
Q. Do you know why Kevin turned around when he did?
A. I don't know why he turned around.
Q. Did you ever ask Kevin?
A. I didn't speak to Kevin after.
...
Q. If there were customers in the store stating racial slurs to employees and you were present, would you have asked the customer to leave the store?
A. I would talk to the customer and ask them to calm down and to not use offensive words with my team members, would I send them out of the store, I never had to do that, so I can't say whether I would or no: but my first action would be to talk to the customer, could I help you with something, could you stop offending team members in the store but I never had an occasion where had to kick a person out of the store so I don't know, I can't answer that.
Q. You don't know whether you would or would not ask the customer to leave?
A. If the customer continued to be offensive or violent inside my store, I don't know, I don't know if I would ask them to leave, it would be based on their reaction, if it seemed that they would be threatening or hostile to me, I would have to make the decision based on that.
Hai further testified that she had terminated all other Duane Reade employees who had committed similar violations of Duane Reade's policies. When asked if she considered any other discipline besides termination, Hai stated:
A. No we thought from what we saw on the video that it could have been avoided and it was serious enough to go to termination.
Q. Did you give any consideration as to what he has been through?
A. I did not speak with Kevin, no.
Q. Why didn't you give Mr. Kinney progressive discipline?
A. This at the time was very clear cut, when we do progressive counseling, there are times where. we take stronger discipline based on what the incident is, so progressive counseling could be something that doesn't have the severity where we could do coaching and developing and for example, talking about lateness, we might start off with a formal discussion and progress that but other instances that are violations to the policy or creates a situation where it is against what we train our team members, we don't just start at a conversation and written documentation. So the discipline is based on the severity of the incident and here we believed the action that Kevin took had that severity.
Q. But you personally did not research whether termination was consistent with the way others have ben treated, committed similar types of alleged infractions, did you?
A. Myself, as I recall, no.
Hai was asked at her deposition about emails concerning plaintiff's termination. In one email, she was noted that plaintiff "violated the policy by leaving the building with no manager". About this purported policy, Hai explained she didn't know "where it is in writing but it is a policy, a known policy" communicated "[t]hrough working within the district, talking to other district managers..."
In an email dated July 22, 2016 from Lai to Geyer, she writes, in pertinent part:
Hi Mike,
I just reviewed video and it appears when shift leader Kevin was entering store he turned back to the door and confronted the customer. The customer appeared to be walking past until Kevin turned back to the door and said something to the customer.
Before this incident even occurred, Kevin violated policy by leaving the building with no manager. He was outside more than 5 minutes.
Although tragic this happened, I question why Kevin went outside again after the first punch.
I am leaning to termination due to policy violation on leaving store unattended.
Please advise.
Post-termination and defendants' policies
Meanwhile, Orlando generated a document in connection with the assault. The report indicates that it was created on August 2, 2016 and includes a narrative of the subject incident, which provides:
Prediction; On 07/19/16 Point Of Contact (POC) informed Asset Protection Manager (APM) Jakub Orlando, regarding workplace violence for store#14370, that took place on 07/16/16.
Facts: On 07/19/16, APN Orlando reviewed CCTV footage, CCTV review showed a non-employee outside of the store. Shift Leader (SFL) Kinney Kevin is observed exiting the store and he returns a few moments later. On SFL Kevin's way back into the store, SFL Kevin closes the door on a nonemployee's arm. This lead to a physical altercation, that took place inside and outside of the premises.
On 07/19/16, APM Orlando interviewed SFL Kevin with Store Manager (MGR) Ann Marie Fullerton as a witness. SFL Kevin stated that he stepped outside the store to make a phone call, while being outside, SFL Kevin stated that a non-employee came up to him (SFL Kevin) and asked him to return a product without a receipt. SFL Kevin denied the return, because he (SFL Kevin) felt that this product stolen. The Individual became irate and started to use vulgarity towards SFL Kevin. At that point, SFL Kevin entered the store, and started to close the door on the Individual. As SFL Kevin was closing the door on the individual, SFL Kevin was hit in the face. After SFL Kevin was hit in the face, he once again stepped outside the store to confront the individual. Once outside, SFL Kevin was hit in the face multiple times by the individual. Eventually the altercation was broken up by passerby's.
After the interview was completed, MGR Fullerton contacted HRG Michael Geyer for further review.
Disposition: On 07/22/16, MGR Fullerton terminated SFL Kevin, for violating the Be Safe Policy.
When asked at his deposition about Duane Reade's relevant policies, plaintiff made the following representations. There are three policies at issue. Plaintiff claims that he never saw or was trained in defendant's "Be Safe" policy, a proffered reason for his termination. He argues that in any event, his actions did not violate that policy. He also clarifies his prior deposition testimony, insisting that he has never seen or heard of defendant's "Managing Confrontational Customers" policy while he was employed by defendants. Finally, plaintiff admits that he did receive defendant's "Soft Stop" policy, but contends that it has nothing to do with the underlying incident. Plaintiff also complains that another employee who violated the Soft Stop policy was given a written warning and not terminated like he was.
I am aware of one situation involving Luna Hai where she did not even discipline an employee who violated Soft Stop or Be Safe at the Third Avenue Store. I learned from a store employee that another employee named Melissa (who is African-American) tried to physically block a shoplifter from leaving the store and stated "you can't take that". The shoplifter then spit on her and ran away. Ms. Fullerton was present and reported the incident to Ms. Hai, but Ms. Hai did not discipline Melissa in any way, not even a warning.
After Fullerton told plaintiff he had been fired, plaintiff grieved his termination and met Geyer with his union representative. He claims that he tried to explain the incident again, but was told that his termination would be upheld.
Parties' arguments
Defendants contend that they are entitled to summary judgment because plaintiff has no evidence of the purported discrimination, defendants have a legitimate, non-discriminatory reason for not promoting plaintiff and terminating his employment, and plaintiff has no evidence of pretext. Defense counsel characterizes plaintiff as "a disgruntled former employee... who was terminated for engaging in a verbal and physical confrontation with a customer, in violation [defendants'] policies on which he was trained. Defendants further maintain that plaintiff was not engaged in a protected activity, dooming his retaliation claim. Defendants rely on the fact that plaintiff never made any complaints about discrimination during the course of his employment.
Meanwhile, plaintiff argues that the motion should be denied because there are disputed issues of fact as to whether defendants violated New York's anti-discrimination laws during plaintiff's employment and by terminating him. Plaintiff's counsel maintains that defendants' policies regarding customer harassment are "outdated and unlawful". Counsel argues that an employer policy which prohibits employees from objecting to unlawful harassment by customers and requires employees to tolerate same, even for a limited period of time, is discriminatory and retaliatory on its face. Therefore, plaintiff contends that Duane Reade unlawfully retaliated against plaintiff by terminating him. Further, plaintiff contends that "[t]here is ample evidence that Duane Reade's asserted rationale for firing [him] is false, misleading, incomplete, and otherwise pretextual."
Discussion
Discrimination
The court will first consider plaintiff's discrimination claims. He has asserted claims for discrimination arising from defendants' failure to promote him and his termination.
A prima facie case of discrimination requires a showing by the plaintiff that: [1] he is a member of a protected class; [2] he was qualified to hold the position; [3] he was terminated from employment or suffered another adverse employment action; and [4] the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination (Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]).
"Where a defendant has offered evidence in admissible form of one or more nondiscriminatory motivations for its actions, a court should ordinarily avoid the unnecessary and sometimes confusing effort of going back to the question of whether a prima facie case has been made out in the first place" (Cadet-Legros v. New York University Hosp. Center, 135 AD3d 196 [1st Dept 2015] citing Bennett v. Health Mgt. Sys., Inc., 92 AD3d 29, 39-40 [1st Dept.2011] lv. Denied 18 NY3d 811 [internal quotations omitted]). As a matter of public policy, a plaintiff's burden in the first instance is "not onerous" because "discrimination rarely announces itself" and defendants are "in a materially better position to provide evidence as to [their] actual motivation than the plaintiff" (Bennett, supra at 92 AD3d 29, 36 [1st Dept 2011]).
Once plaintiff has demonstrated a prima facie claim of discrimination, he is entitled to a rebuttable presumption of discrimination which the employer can rebut by proving a legitimate, independent, non-discriminatory reason for the adverse employment action (Forrest, citing Ferrante v. American Lung Association, 90 NY2d 623 [1997]; see also McDonnell Douglas Corp. v. Green, 411 US 792 [1973]). If the employer is successful, the burden then shifts back to plaintiff who must prove that the reason being offered is a pretext, and therefore false. "If the plaintiff succeeds in this regard, such evidence of pretext should in almost every case indicate to the court that a motion for summary judgment must be denied" (Cadet-Legros, supra at 226 citing Bennet [internal quotations omitted]).
The court finds that plaintiff has easily established a prima facie case of a discrimination on the basis of both race and sexual orientation regarding the failure to promote and his termination. Assuming arguendo that defendants met their burden on this motion by coming forward with legitimate, non-discriminatory reasons for the failure to promote and plaintiff's termination, issues of fact abound on this record which warrant denial as to plaintiff's discrimination claims.
1. Failure to promote
Plaintiff was not promoted under circumstances giving rise to the inference of discrimination on the basis of race and sexual orientation. As a Caucasian, plaintiff was a minority at both of defendants' stores. Plaintiff claims that his supervisors discouraged him from applying for advancement because he was "privileged", "white" and from New Jersey. He was told he should let other people have a chance. Plaintiff testified that his sexual orientation was disparaged and was a topic of gossip. Plaintiff claims that because of race and sexual orientation, he was denied training, was treated like an outcast and was issued excessive disciplinary warnings for things that other employees were not written up for. These actions certainly amount to a material adverse change in the terms and conditions of plaintiff's employment (cf. Forrest, supra). The court cannot just reject plaintiff's factual claims as a matter of law as defendants would urge it to do.
Despite plaintiff's poor performance at the first store, he was kept in a position which even Hai described as managerial. Further, Velez was "hurt" that plaintiff was transferred to another store. Velez wanted plaintiff to stay at his store. If plaintiff was such a problem employee, this claim undercuts that point. Velez and plaintiff paint two completely different versions of the same workplace and the court cannot resolve this triable issue of fact. Further, plaintiff's counsel points to the fact that Velez has never recommended a white employee for promotion to Assistant Store Manager during the twelve years he worked at Duane Reade.
Fullerton allegedly recommended plaintiff for the ASMT position, but Hai denies that claim. According to Hai, she would never promote an employee who had not been recommended by his or her store manager. Therefore, there is an issue of fact as to whether Fullerton recommended plaintiff and discrimination can be inferred if she chose not to recommend him.
Meanwhile, Velez also testified that he recommended plaintiff for the Assistant Store Manager position to then district-manager Natale. Velez allegedly only did so after plaintiff had left his store. Here, a jury could find that Velez and/or Fullerton did recommend plaintiff for promotion and that Hai's proffered reasons for not promoting plaintiff were false. Plaintiff has therefore rebutted defendants' showing on the failure to promote claim.
That Hai, who was responsible for considering plaintiff for promotion, testified that she did not know plaintiff was gay is of no moment. Such testimony goes to credibility, and a reasonable factfinder is free to weigh her testimony on this point. Indeed, her testimony is called into question by plaintiff's contrasting claims. He claims to have seen Hai during monthly visits and himself was openly gay. Plaintiff's supervisors knew he was gay and they themselves reported to Hai. Further, plaintiff's written statement about the incident includes the assertion that the attacker called him a faggot during the altercation. Hai's denial that she reviewed the statement in connection with her decision to terminate plaintiff defies credulity.
It is of no moment that plaintiff never made any formal complaints about the discrimination he claims to have experienced while working for defendants. Plaintiff is not asserting a hostile work environment claim (see i.e. Dunn v. Astoria Federal Sav. and Loan Ass'n, 51 AD3d 474 [1st Dept 2008]). Further, it could be that plaintiff was terminated before he had the opportunity to complain.
Accordingly, the motion as to discrimination on the basis of failure to promote is denied.
2. Termination
Defendants have not met their burden on this motion and established that the decision to terminate plaintiff was legitimate and non-discriminatory as a matter of law. If a jury finds that plaintiff was fired at least in part because of his opposition to customer harassment based upon sexual orientation discrimination, defendants may be held liable (see Singh v. Covenant Aviation, 131 AD3d 1158, 1161 (2d Dept 2015) citing Bennett v. Health Mgt. Sys., Inc., 92 AD3d at 40).
It is not even clear who decided to fire plaintiff. While Fullerton claims that she had no involvement in the decision, the 8/2/16 report indicates that it was Fullerton who fired plaintiff. Fullerton was present at Orlando's interview of plaintiff about the incident and claims that she told plaintiff he had been suspended at Orlando's direction.
There are other inconsistencies between defendants' employees' testimony which further highlight material issues of fact on this record. Did plaintiff have a temper problem as Fullerton described despite failing to write him up for it? Was plaintiff's job performance at the first store legitimately unsatisfactory as Velez described? Did defendant have a "Managing Confrontational Customers" policy? Even if not necessarily relevant, these questions go to witness credibility.
Defendants claim that plaintiff was terminated for failing to follow its policies by re-engaging with the man instead of walking away. Plaintiff is indisputably the victim of a hate crime. It is telling that defense counsel refers to the man who called plaintiff a faggot and repeatedly punched him in the face a "customer". There is absolutely nothing on this record to actually support that description of the man. The attacker was in the store for mere seconds, during which time he punched plaintiff in the face.
In any event, plaintiff has raised a triable issue of fact as to whether defendants' proffer regarding his termination is mere pretext. Plaintiff points to defendants' failure to follow its own policies in regard to termination, such as firing him instead of following its progressive counseling policy and not conducting an investigation of how other employees who violated defendants' shoplifting policies were punished. A departure from defendant's internal procedures can serve as evidence of pretext (DeFreitas v. Bronx Lebanon Hosp., 2019 168 AD3d 541 [1st Dept 2019]).
Further, Hai claims that she decided to terminate plaintiff based upon her review of the surveillance video. She did not interview plaintiff. She did not read his written statement. Even if she and Geyer made the decision to terminate plaintiff without input from anyone else, a reasonable factfinder could conclude that the policy violations were mere pretext since Hai did not seem interested in investigating all the facts before deciding to fire plaintiff. Further, the contrast between Hai's testimony that she would promote an employee only with a Store Manager's recommendation, but did not confer with Fullerton regarding plaintiff's termination is stark and mandates denial of the motion as to plaintiff's termination claim.
Plaintiff's counsel also claims that the reason plaintiff was terminated shifted from being outside the store to violating the Be Safe policy. Plaintiff denies ever being told he violated a policy when he was fired and the Be Safe policy is first documented as the basis for plaintiff's termination on 8/2/16, ten days after plaintiff was terminated. Indeed, Hai's emails before plaintiff was fired indicate that plaintiff was fired for being outside the store more than five minutes. A shifting, inconsistent, and questionable explanation for termination are evidence of pretext (Sullivan v. New York City Department of Investigation, 163 FSupp3d 89 [SDNY 2016]).
Otherwise, plaintiff has come forward with evidence of disparate discipline; other employees in plaintiff's region committed similar violations of defendants' shoplifting policies but were not terminated. He claims that many of these employees were outside plaintiff's protected classes. Plaintiff specifically points to an African-American woman who violated the Be Safe policy that Hai did not terminate. Indeed, defense counsel concedes: "Defendants, however, never asserted that every Duane Reade employee who violated Duane Reade's policies concerning the handling of confrontational customers and/or shoplifters was terminated."
Finally, plaintiff's counsel contends that defendants' policies are inherently discriminatory because defendants essentially require their employees to tolerate and walk away from unlawful discrimination. Plaintiff's counsel maintains that a jury could find that "Duane Reade's policy prohibiting employees from engaging with harassing customers is inconsistent with employees' rights and the company's obligations under the City HRL." Plaintiff's counsel further argues that defendants did not provide plaintiff a workplace free from harassment because plaintiff had no other tools to deal with his attacker, was not allowed to ask the man to leave and defendants did not employ security personnel.
This argument fails because it would require a logic jump from a simple policy requiring employees to diffuse and deescalate a situation. The policy itself is certainly not discriminatory on its face. It is not based upon discriminatory animus or in furtherance of a discriminatory scheme. Also missing from plaintiff's claims is any proof that the attack was expected or something defendants should have anticipated and therefore revised their policies to address. Certainly, there is no proof that defendants condoned or invited the attacker's behavior. Absent such a showing, defendant cannot establish defendants' policies regarding dealing with a confrontational customer, as compared to plaintiff's termination, give rise to a claim for unlawful discrimination.
Retaliation
To make a prima facie showing of retaliation under either the NYCHRL or the NYSHRL, plaintiff must show that (1) he engaged in a protected activity, (2) defendants were aware that plaintiff participated in such activity, (3) plaintiff suffered an adverse employment action based upon that activity, and (4) there is a causal connection between the protected activity and the adverse action (see Forrest, 3 NY3d at 313). An employee engages in a "protected activity" by "opposing or complaining about unlawful discrimination". (Id.)
Defendant argues that plaintiff was not engaged in a protected activity when he confronted the man who was yelling anti-gay slurs at him and followed him out of the store after he was punched in the face. Meanwhile, Plaintiff's counsel cites a number of federal court cases for the proposition that an employee's actions in response to customer harassment can be deemed protected oppositional conduct (Van Horn v. Specialized Support Serv. Inc., 241 FSupp2d 994, 1010 (Dist Ct, SD Iowa, Central Div 2003] [employee's slapping of client in reaction to his pinching her breast was oppositional activity protected from retaliation under Title VII]; Folkerson v. Circus Circus Enterprises, Inc., 68 F3d 480 (9th Cir 1995 ["reasonable defense against physical violence may be protected oppositional activity" and an employer may be held liable for sexual harassment on the part of a private individual "where the employer either ratifies or acquiesces in the harassment by not taking immediate and/or corrective actions when it knew or should have known of the conduct."]; Speed v. WES Health Sys., 93 FSupp3d 351, 359-64 [ED Pa 2015]) (holding that "physical opposition to workplace harassment" can constitute protected activity, and stating, "employers are generally free to maintain 'zero-tolerance' policies, so long as they simultaneously protect their workforce from unlawful harassment.").
However, "not every act by an employee in opposition to racial discrimination is protected. The opposition must be directed at an unlawful employment practice of an employer, not an act of discrimination by a private individual" (Wimmer v. Suffolk County Police Dept., 176 F3d 125, 135 [2d Cir 1999] quoting Little v. United Technologies, 103 F3d 956 [11th Cir 1997]). "The specific evil at which Title VII was directed was not the eradication of all discrimination by private individuals, undesirable though that is, but the eradication of discrimination by employers against employees" (Wimmer, supra).
Plaintiff seemingly abandons his retaliation claim under the NYSHRL, and so that claim must be severed and dismissed, since plaintiff does not even attempt to argue that he can demonstrate a prima facie case. Admin Code § 8-107 (7) provides in relevant part that: "It shall be an unlawful discriminatory practice . . . to retaliate or discriminate in any manner against any person because such person has . . . opposed any practice forbidden under this chapter." Albunio v. City of New York (16 NY3d 472 [2011]) is instructive. In that case, the Court of Appeals noted the "broad reading" that courts must give to the NYCHRL "to the extent that such a construction is reasonably possible" (id. at 478-479). The Court found, inter alia, that an employee's disapproval of discrimination against a non-party employee constituted protected activity under the NYCHRL. The plaintiff-employee in that case opposed discrimination by communicating that her boss' treatment of the non-party was wrong.
Here, the court finds that plaintiff was not engaged in a protected activity as defined by the NYHRL when he confronted his attacker because his opposition was not directed at an unlawful employment practice of his employer, but rather the unexpected and unanticipated acts of a private individual. While the law should be read broadly, plaintiff's retaliation claims do not fall within the ambit of the NYCHRL.
Accordingly, the retaliation claim under the NYCHRL is also severed and dismissed.
Conclusion
Accordingly, it is hereby ORDERED that defendants' motion is granted only to the extent that plaintiff's claims for retaliation are severed and dismissed; and it is further
ORDERED that the balance of the motion is denied.
Any requested relief not expressly addressed herein has nonetheless been considered and is hereby expressly denied and this constitutes the Decision and Order of the court. Dated: 7/8/19
New York, New York
So Ordered:
/s/ _________
Hon. Lynn R. Kotler, J.S.C.