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holding at summary judgment that a supervisor's use of the words "inarticulate" and "entitled" about the plaintiff, an African-American woman, were insufficient, without more, to show discriminatory intent
Summary of this case from Smith v. UNC Health Care Sys.Opinion
11 Civ. 3154 (AT)
12-17-2013
REGINA LLOYD (formerly known as REGINA LESPINASSE), Plaintiff, v. HON. ERIC H. HOLDER, JR., ATTORNEY GENERAL, UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
MEMORANDUM AND ORDER :
In this employment discrimination action, Regina Lloyd ("Plaintiff") alleges claims of race and gender based discrimination, hostile work environment, and retaliation against her employer, Eric H. Holder, Jr. ("Defendant"), under Title VII of the Civil Rights Act of 1964, 24 U.S.C. § 2000e-1 et seq. ("Title VII"). Defendant moves for summary judgment under Federal Rule of Civil Procedure 56. For the reasons stated below, Defendant's motion is GRANTED.
BACKGROUND
Plaintiff is an African-American female from New Jersey. Am. Compl. ¶ 5; Lloyd Aff. ¶ 3. Defendant is currently the Attorney General of the United States, who oversees operations of the United States Attorney's Office, Southern District of New York ("USAO"). Am. Compl. ¶¶ 6, 7. Plaintiff worked in the USAO's Criminal Clerk's Office between June 1993 and April 2008. Am. Compl. ¶¶ 9, 20; Lloyd Aff. ¶ 4. The Criminal Clerk's Office handles much of the USAO Criminal Division's case tracking system and court filings, as well as its magistrate court and trial calendars, and utilizes a program called "LIONS." Tyrrell Decl. ¶ 4. Administrative Officer Edward Tyrrell realized that the Criminal Clerk's Office was "a mess." Id. at ¶ 5. See also Lloyd Aff. ¶ 8. Its work was not getting done timely or correctly, and there was a high rate of turnover among its supervisors. Tyrrell Decl. ¶ 5. When one supervisor left in 2005, Plaintiff and a co-worker, John Ricciardelli, were named "acting supervisors" of the Criminal Clerk's Office. Id. at ¶¶ 6, 7. Plaintiff alleges the co-appointment was tokenism, stating Tyrrell, "played the old racist game of [put the] 'black wom[a]n in charge but not really.'" Lloyd Aff. ¶ 8.
In 2006, Tyrrell hired Patricia Mallette as Deputy Administrative Officer and directed her to fix the Criminal Clerk's Office. Tyrrell Decl. ¶ 13; Mallette Decl. ¶ 6. To cure the office's data entry backlog, Mallette divided the work by task, and focused first on superseding indictments. Mallette Decl. ¶ 18. Mallette allegedly noticed that Plaintiff worked irregular hours, rarely seemed to be at her desk, frequently failed to attend group meetings, and failed to timely enter her own attendance information. Id. at ¶¶ 14-17. Plaintiff asserts that she was allowed to work from 7:30 a.m. to 4:00 p.m. on a "flex time" schedule, that she was often absent from her desk because she was making court runs, in training, or helping other employees, and that she was often not informed of meetings that took place. Lloyd Aff. ¶¶ 16, 27, 45. Plaintiff, according to Mallette, seemed to enter less data than other employees and was "strategically absent" on days when there was a lot of work. Mallette Decl. ¶¶ 18, 19. Mallette also discovered that Plaintiff inaccurately maintained the trial calendar (Id. at ¶¶ 28-32) and stopped speaking with Ricciardelli and her supervisor, Dmitry Kulinich. Id. at ¶¶ 34-39. Plaintiff asserts that Mallette accused her of problems with the calendar when there were no problems - Mallette simply did not understand how the calendar worked. Lloyd Aff. ¶ 21. Plaintiff also maintains that she continued to speak with Kulinich and Ricciardelli, despite Mallette's accusations. Id. at ¶ 39. See also id. at ¶ 38 (stating "[a]lthough John [Ricciardelli] backstabbed me we still spoke to each other"). Plaintiff has described working with Ricciardelli as "a no holds barred gladiator contest." Id. at ¶ 11.
Mallette was responsible for Plaintiff's 2006 annual performance evaluation. In mid- 2006, Mallette invited Plaintiff to her office and warned that if Plaintiff's "sub-par" performance continued, she would receive a poor year-end evaluation. Id. at ¶¶ 42-48. After one or two sentences, Plaintiff walked out and refused to sign the mid-year evaluation form. Id. at ¶ 49. For the year-end evaluation, Mallette again invited Plaintiff to her office for a discussion. This time, Human Resources Supervisor Ruby Hopkins sat in as a witness. Id. at ¶¶ 50, 51. Although Mallette had evaluated Plaintiff's performance as satisfactory, Plaintiff again walked out of the office after several sentences without signing the evaluation form. Id. at ¶ 52; Hopkins Decl. ¶¶ 7, 8.
Plaintiff felt slighted by Mallette from the beginning. Lloyd Aff. ¶ 14. Mallette allegedly ignored her and took away some of her assignments. Id. This led Plaintiff to believe that Mallette "did not like black people," and so Plaintiff "began to document [her] treatment." Id. Mallette allegedly talked about Plaintiff behind Plaintiff's back (Id. at ¶¶ 15, 22), questioned Plaintiff about her work schedule (Id. at ¶¶ 16, 17), asked Plaintiff a "barrage of questions" (Id. at ¶ 17), requested that Plaintiff not work overtime (Id. at ¶ 18), "micro[-]manag[ed]" Plaintiff and used "in your face, blunt, abrasive talking and divisive tactics" (Id. at ¶ 20), questioned Plaintiff's work product (Id. at ¶¶ 21, 27), turned Plaintiff's co-workers against her (Id. at ¶ 22), confronted Plaintiff stating, "'I know you want me to go away'" (Id. at ¶ 24), requested that Plaintiff water plants (Id. at ¶ 28), relied on "verbal abuse as a motivational tool" (Id. at ¶ 29), and generally engaged in other "divisive, discriminatory, and . . . bully[ing]" behavior. Id. at ¶ 35.
In a conversation with Tyrrell, Mallette described Plaintiff as "lazy, shiftless, [and] incompetent," thus bringing "racial stereotypes into the mix," "mak[ing] it all personal" against Plaintiff. Id. at ¶ 25. Mallette also stated that Plaintiff was "lazy, incompetent, entitled, never at [her] desk, slacking off, and dumb" (Id. at ¶ 30), and Mallette "implied that [Plaintiff] felt the job was an entitlement, [and that she] was ignorant and inarticulate." Id. at ¶ 40 (bold in original). See also id. at ¶ 22. Plaintiff asserts that "these are toxic, hostile, insensitive, racist, hurtful words and descriptions" (Id. at ¶ 30) and that the words project "racial stereotypes." Id. at ¶ 40. Plaintiff essentially alleges that Mallette used 'code words' to project racism. Plaintiff asserts the words are "the same verbiage that you hear on 'hate radio talk shows' and 'conservative television talk shows.'" Id. at ¶ 49 (bold in original).
"Mallette gave [Plaintiff] the impression she did not like black people." Id. at ¶ 33. Mallette would allegedly treat Plaintiff "differently than she treated the whites." Id. Plaintiff had once "observed Mallette yelling at Michelle[,] a black female[,] in her office surrounded by her co[-]workers [who] were all white." Id. at ¶ 36.
In April 2008, Tyrrell asked Plaintiff to consider transfering to a different unit, which she did. Mallette Decl. ¶¶ 55, 56. The transfer had no effect on Plaintiff's pay or benefits. Tyrrell Decl. ¶ 43. In 2008, Mallette and Tyrrell created a "Lead Legal Assistant" position to direct the other criminal clerks in their most basic day-to-day tasks. Tyrrell Decl. ¶ 22. Plaintiff and Ricciardelli were the two applicants deemed "qualified" and Mallette and Kulinich interviewed each. Mallette Decl. ¶ 63; Hopkins Decl. ¶ 20(a). Plaintiff failed to show up for her scheduled interview, and when Mallette called to ask whether she was coming, Plaintiff replied: "'oh, I had an emergency, I can't do it today.'" Mallette Decl. ¶ 64. At the rescheduled interview, Plaintiff allegedly gave unimpressive answers and offered her longevity in the office as the only reason to promote her instead of Ricciardelli. Id. at ¶¶ 65-67. Plaintiff asserts she offered other reasons, in addition to her longevity, for being hired. Lloyd Aff. ¶ 40. Plaintiff maintains that Mallette did not take the interview seriously and only asked her a few questions. Id. Mallette promoted Ricciardelli, allegedly in light of his superior job performance. Mallette Decl. ¶¶ 26, 68. Plaintiff applied for nine other permanent promotions at the USAO since August 2008. Hopkins Decl. ¶ 20. She was not hired for any of these positions, and, on several occasions, other black candidates were hired over her. Id. at ¶ 20(b)-(j).
Plaintiff believes her race and gender negatively affected her applications for promotion. In September 2007, Tyrrell and Mallette hired Dmitry Kulinich as the permanent supervisor for the Criminal Clerk's Office, thus replacing Plaintiff and Ricciardelli, who had been co-acting supervisors. Tyrrell Decl. ¶ 21. Plaintiff believes that Mallette and Tyrrell deliberately made it impossible for Plaintiff or Ricciardelli to qualify for the position - "[Ricciardelli] because of his age (late 60's) me a black female." Lloyd Aff. ¶ 37. Plaintiff asserts: "This sort of practice is a hot topic within the black community. We know this practice as 'moving the goal post[.]' Blacks complain that they are not given a fair opportunity because some whites change the rules and design them exclusively to exclude certain groups. It's a form of racial and [j]ob discrimination that in most cases [is] hard to prove." Id.
Plaintiff also believes race was a factor during her interview for the Lead Legal Assistant position in 2008. Plaintiff asserts that what she learned from the interview "was that Mallette and Dmitry [Kulinich] are spiteful, mean, petty, racist insensitive idiots" and that the interview was "'career suicide.'" Id. at ¶ 49 (bold in original). Mallette and Kulinich allegedly chose Ricciardelli because of his race and gender: they picked "John [Ricciardelli] 'the white guy,'" passing up "[Plaintiff] 'the black girl,'" and "conspire[d] to deny [Plaintiff] opportunity for any real advancement." Id.
DISCUSSION
I. Standard of Review
Summary judgment may be granted only if the court concludes that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004). A dispute is genuine when there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Material facts are those which may affect the outcome of a case. Id.
The moving party initially bears the burden of informing the court of the absence of a genuine dispute of material fact by citing to particulars in the record. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. 317 at 322-25; Koch v. Town of Brattleboro, 287 F.3d 162, 165 (2d Cir. 2002). The movant may satisfy his burden by "showing that the materials cited do not establish the absence or presence of a genuine dispute." Fed. R. Civ. P. 56(c)(1)(B). If the non-moving party has the burden of proof on specific issues, the movant may also satisfy his own initial burden by demonstrating that the adverse party cannot produce admissible evidence to support an issue of fact. Celotex, 477 U.S. at 322-23; PepsiCo Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002). In deciding the motion, the court views the record in the light most favorable to the non-moving party. Hunter v. Bryant, 502 U.S. 224, 233 (1991); O'Hara v. Weeks Marine, Inc., 294 F.3d 55, 61 (2d Cir. 2002).
If the moving party meets his initial burden, the burden then shifts to the opposing party to establish a genuine issue of fact. Beard v. Banks, 548 U.S. 521, 529 (2006); Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001). The opposing party may not avoid summary judgment by relying solely on conclusory allegations or denials that are unsupported by factual data. Fed. R. Civ. P. 56(c); Amaker v. Foley, 274 F.3d 677, 680-81 (2d Cir. 2001). Instead, the opposing party must set forth "specific facts showing there is a genuine issue for trial." Celotex, 477 U.S. at 324 (internal quotation marks omitted). A nonmoving party demonstrates a "genuine issue for trial" by presenting evidence about a material fact, such that a reasonable jury could return a verdict in his favor. Anderson, 477 U.S. at 248.
The court need consider only the cited materials, but it may consider other materials in the record. Fed. R. Civ. P. 56(c)(3).
II. Local Civil Rule 56.1
Local Civil Rule 56.1 governs factual statements on motions for summary judgment. It requires a party moving for summary judgment to submit "a separate, short and concise statement" setting forth material facts as to which there is no genuine issue to be tried. Local Civ. R. 56.1(a). A party opposing summary judgment must respond with a statement of facts as to which a triable issue remains. Local Rule 56.1(b). "Each numbered paragraph in the statement of material facts . . . will be deemed to be admitted . . . unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party." Local Civ. R. 56.1(c). Further, "[e]ach statement by the movant or opponent . . . including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Fed. R. Civ. P. 56(c)." Local Civ. R. 56.1(d). Finally, if the moving party seeks summary judgment against a pro se litigant, that party must provide the pro se litigant with notice of the requirements of both Rule 56 of the Federal Rules of Civil Procedure and Local Civil Rule 56.1. Local Civ. R. 56.2. Once provided with this notice, pro se litigants are not excused from satisfying their obligations under Local Civil Rule 56.1. Allen v. City of New York, 480 F. Supp. 2d 689, 703 (S.D.N.Y. 2007).
Plaintiff was notified of her obligations concerning summary judgment when Defendant provided her with copies of both Rule 56 of the Federal Rules of Civil Procedure and Local Civil Rule 56.1. See Notice to Pro Se Litigant Opposing Summ. J., June 4, 2013, ECF No. 90. Facts in a defendant's uncontroverted statement may be deemed admitted as a matter of law. See Gubitosi v. Kapica, 154 F.3d 30, 31 n.1 (2d Cir. 1998). However, district courts have broad discretion to overlook a party's failure to comply with local court rules and may "opt to conduct an assiduous review of the record even where one of the parties has failed to file such a statement." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citations and internal quotation marks omitted). Courts in this Circuit typically forgive a pro se plaintiff's failure to file a Local Rule 56.1 Statement, and generally conduct their own independent review of the record. See, e.g., Hayes v. County of Sullivan, 853 F. Supp. 2d 400, 406 n.1 (S.D.N.Y. 2012). Thus, the Court construes Plaintiff's opposing affidavit as her statement of facts required by Local Civil Rule 56.1. See Smith v. Planas, 975 F. Supp. 303, 305 n.2 (S.D.N.Y. 1997). However, Plaintiff's affidavit and supporting exhibits fail to controvert many of the factual assertions in Defendant's 56.1 Statement. Thus, the Court considers any uncontroverted portions of Defendant's 56.1 Statement admitted. See id.
III. Race and Gender Discrimination
Plaintiff claims that Defendant discriminated against her because she is African-American and female. Because she seeks to prove race and gender discrimination through circumstantial evidence, her claim is evaluated using the three-step McDonnell Douglas burden-shifting framework. See, e.g., Peralta v. Chromium Plating & Polishing Corp., No. 99 Civ. 3996, 2000 WL 34633645, at *4 (E.D.N.Y. Sept. 15, 2000) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
At the first stage, the plaintiff bears the burden of establishing a "prima facie" case. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). The requirements to establish a prima facie case are "minimal," St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993), and a plaintiff's burden is therefore "not onerous." Burdine, 450 U.S. at 253. "Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee." Id. at 254. At the second McDonnell Douglas stage, the presumption created by the prima facie case "places upon the defendant the burden of producing an explanation to rebut the prima facie case - i.e., the burden of 'producing evidence' that the adverse employment actions were taken 'for a legitimate, nondiscriminatory reason.'" Hicks, 509 U.S. at 506-07 (quoting Burdine, 450 U.S. at 254). Although the presumption "shifts the burden of production to the defendant, '[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Id. at 507 (quoting Burdine, 450 U.S. at 253). If the defendant satisfies its burden of production, then "the presumption raised by the prima facie case is rebutted . . . and drops from the case." Id. (citation and internal quotation marks omitted). At the final stage, the plaintiff then has "the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision" - a burden that "merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination." Burdine, 450 U.S. at 256; see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000) (citation and internal quotation marks omitted) (noting that after the presumption is rebutted the "sole remaining issue [is] discrimination vel non"). The evidence must be sufficient to support a rational finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and that more likely than not discrimination was the real reason for the employment action. Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000).
To establish a prima facie case of discrimination, Plaintiff must show that: (1) she is a member of a protected group; (2) she is qualified for her position; (3) she suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination. Id. Defendant seems to concede that Plaintiff has satisfied the first two elements. Defendant disputes that Plaintiff suffered an adverse employment action. A failure-to-promote can constitute an adverse employment action. See Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002) (citation omitted) (recognizing failure-to-promote as "within the core activities encompassed by the term 'adverse actions.'"). However, Defendant contends that Plaintiff fails to state a prima facie case of discrimination based on a failure-to-promote.
To establish a failure-to-promote claim under Title VII, a plaintiff must show: "(1) she is a member of a protected class; (2) she applied and was qualified for a job for which the employer was seeking applicants; (3) she was rejected for the position; and (4) the position remained open and the employer continued to seek applicants having the plaintiff's qualifications." Estate of Hamilton v. City of New York, 627 F.3d 50, 55 (2d Cir. 2010) (citation and internal quotation marks omitted). In the complaint, Plaintiff alleges several instances of failure-to-promote, including the August 2008 denial of the Lead Legal Assistant position (where Ricciardelli was hired instead), applications for "Paralegal positions as well as other positions," and subsequent openings of the Lead Legal Assistant position on "April 19, 2010; May 25, 2010; and, most recently on October 7, 2010." Am. Compl. ¶¶ 26, 35. Defendant disputes that Plaintiff was qualified for several of the promotions she sought, including the Paralegal Specialist position. Plaintiff does not dispute Defendants' assertion that she was not qualified for the Paralegal position and similar promotions, and thus it is deemed admitted that she was not qualified for those positions for the purposes of this motion. See Planas, 975 F. Supp. at 305 n.2. But, she does assert that she was qualified for the Lead Legal Assistant position and has demonstrated so with sufficient evidence. See Lloyd Aff. Ex. 23 (e-mail from Mallette to Plaintiff stating Plaintiff is "basically qualified" for the Lead Legal Assistant position). Plaintiff was rejected for the Lead Legal Assistant position, satisfying the third element. See id. The fourth element can be satisfied by demonstrating the position remained open or was filled by someone outside of Plaintiff's protected class. Uddin v. City of New York, No. 07 Civ. 1356, 2009 WL 2496270, at *21 (S.D.N.Y. Aug. 13, 2009). Plaintiff has satisfied the fourth element, as she has demonstrated that Ricciardelli, a white male, received the Lead Legal Assistant position over her. See Lloyd Aff. Ex. 23. Thus, Plaintiff has established a prima facie claim of failure-to-promote, satisfying the third element of her discrimination claim under Title VII - adverse employment action.
The fourth element - that the adverse action occurred under circumstances giving rise to an inference of discrimination - must still be met. "A plaintiff may support an inference of race discrimination by demonstrating that similarly situated employees of a different race were treated more favorably." Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999) (citation omitted). To be "similarly situated," the individuals a plaintiff attempts to compare herself to "must be similarly situated in all material respects." Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997) (citation omitted). Plaintiff does allege that she was treated differently than Ricciardelli - her white male counterpart. Although they did hold the same position and worked under the same boss, it is unclear whether they were similarly situated in all material respects. Indeed, he could have been a better employee than Plaintiff, thus warranting better treatment from his superiors and promotion to the Lead Legal Assistant position. Plaintiff attempts to show that he engaged in conduct for which she was reprimanded - for example he too was often away from his desk. Lloyd Aff. ¶ 45 ("that's a real double standard"). Whether Plaintiff has marshaled an inference of discrimination is a close question. Nevertheless, the Court need not and does not resolve that question because, even if Plaintiff were able to establish a prima facie case of race and gender discrimination, her claim would fail at the third step of the McDonnell Douglas analysis.
Turning to the second step, Defendant has articulated a legitimate, nondiscriminatory reason for his actions. Defendant contends that the decision to hire Ricciardelli over Plaintiff was not the result of discrimination, but rather the consequence of Plaintiff's poor work performance and interview and because Ricciardelli was better suited for the job. See Mallette Decl. ¶¶ 26, 68. The record strongly supports this contention. Defendant points to substantial evidence demonstrating that Plaintiff, among other things, was often absent from her desk, failed to attend group meetings, failed to timely enter her own attendance, refused to speak with her colleagues and supervisors, walked out of evaluations, and generally demonstrated other behavioral and inter-personal problems. Id. at ¶¶ 14-19, 28-39; Kulinich Decl. ¶¶ 6, 7; Tyrrell Decl. ¶¶ 45, 55; Hopkins Decl. ¶¶ 7, 8. Plaintiff also failed to show up for her own interview for the Lead Legal Assistant position, and only rescheduled it upon an inquiry from Mallette asking if she was coming to the interview (an assertion Plaintiff does not deny). Mallette Decl. ¶ 64. Plaintiff also gave unimpressive answers during the interview, according to Defendant. Id. at ¶¶ 65-67. Defendant has more than met his burden of articulating some legitimate, nondiscriminatory reason for his actions.
The same reasons are also offered for Defendant's subsequent failures to hire Plaintiff for the Lead Legal Assistant position. See Def. Mem. 17 ("Defendant has produced ample evidence that Lloyd's managers had abundant and entirely legitimate and non-discriminatory reasons for all of their actions: their justifiable impression that she lacked competence, diligence, and professionalism.").
Turning to the third step, "[o]nce such a reason is provided, the plaintiff can no longer rely on the prima facie case, but may still prevail if she can show that the employer's determination was in fact the result of discrimination." Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010) (citation omitted). Plaintiff cannot prevail unless there is sufficient evidence in the record from which a reasonable jury could conclude by a preponderance of the evidence that Defendant's failure-to-promote Plaintiff was based, at least in part, on her race or gender. See Holcomb v. Iona Coll., 521 F.3d 130, 141 (2d Cir. 2008). Plaintiff has failed to carry this burden.
Plaintiff has offered almost no evidence that she was not promoted because of her race or gender. First, much of the "evidence" Plaintiff offers are merely declarations of her own sense of being discriminated against. See Lloyd Aff. ¶ 14 ("I felt [Mallette] did not like black people and began to document my treatment"); Id. at ¶ 33 ("Mallette gave me the impression she did not like black people, she would talk to me one way and treat me differently than she treated the whites."). See also Lloyd Dep. 62:9-19, April 30, 2010 ("As I said before, I feel like I was set up not to get the job and I was definitely discriminated against by gender and race. I really feel that way and I was intimidated out of the unit . . . I felt like I was discriminated against."). However, a plaintiff's sense of being discriminated against is not evidence of discrimination. See, e.g., Bickerstaff v. Vassar Coll., 196 F.3d 435, 456 (2d Cir. 1999) (alteration in original) (citation and internal quotation marks omitted) (noting that "[feelings and perceptions] of being discriminated against [are] not evidence of discrimination"); Fisher v. Vassar Coll., 70 F.3d 1420, 1439 (2d Cir. 1995) (a plaintiff's "'sense of being discriminated against' is not evidence" of discrimination).
Second, much of the "evidence" Plaintiff puts forward amounts to merely conclusory allegations of racism. See Lloyd Aff. ¶ 8 (Tyrrell "played the old racist game of [put the] 'black wom[a]n in charge but not really'"); Id. at ¶ 37 ("This sort of practice is a hot topic within the black community. We know this practice as 'moving the goal post[.]' Blacks complain that they are not given a fair opportunity because some whites change the rules and design them exclusively to exclude certain groups. It's a form of racial and [j]ob discrimination that in most cases [is] hard to prove"); Id. at ¶ 49 ("What I learned from the interview for the Lead Legal Assistant in 2008 with Mallette and Dmitry [Kulinich] was that Mallette and Dmitry are spiteful, mean, petty racist insensitive idiots"); Id. ("I believe that Tyrrell, Mallette, Dmitry and Olsen should undergo some sort of race and sensitivity training."). "To satisfy Rule 56(e), affidavits must be based upon, 'concrete particulars,' not conclusory allegations." Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)). In Schwapp, the Second Circuit found that the district court properly refused to countenance bald assertions and legal conclusions of racism - "for example, that [the defendant] 'was always making racial slurs about minorities,' . . . and that [the plaintiff] 'was working in a hostile or abusive working environment.'" Id. The assertions Plaintiff adduces above are no more than conclusory allegations; thus, they are not sufficiently particular to satisfy Rule 56.
Lastly, Plaintiff alleges that Mallette used certain words to project racism and by using them Mallette "brought up racial stereotypes into the mix." Lloyd Aff. ¶ 25. Mallette described Plaintiff as "lazy, shiftless, incompetent" (Id. at ¶ 25), "lazy, incompetent, entitled, never at [her] desk, slacking off, and dumb" (Id. at ¶ 30), and "implied that [Plaintiff] felt the job was an entitlement, [and that she] was ignorant and inarticulate." Id. at ¶ 40 (bold in original). See also id. at ¶ 22. Plaintiff asserts that "these are toxic, hostile, insensitive, racist, hurtful words and descriptions" (Id. at ¶ 30) and that the words project "racial stereotypes." Id. at ¶ 40. Plaintiff asserts the words are "the same verbiage that you hear on 'hate radio talk shows' and 'conservative television talk shows.'" Id. at ¶ 49 (bold in original).
The Court notes that Plaintiff's affidavit is sometimes ambiguious as to whether Plaintiff heard the words from Mallette or was told Mallette used the words from third parties. See, e.g., Lloyd Aff. ¶ 40 ("What [Mallette] did was slander me behind my back"). For the reasons stated herein, the Court need not decide whether this evidence is inadmissible hearsay.
Plaintiff paints Mallette as employing "dog-whistle racism" - the use of code words and themes which activate conscious or subconscious racist concepts and frames. The Court recognizes that certain facially non-discriminatory terms can invoke racist concepts that are already planted in the public consciousness - words like "welfare queen," "terrorist," "thug," "illegal alien." Indeed, Title VII can hear racism sung in the whistle register. See Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006) ("Although it is true the disputed word ['boy'] will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign. The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage"); Smith v. Fairview Ridges Hosp., 625 F.3d 1076, 1085 (8th Cir. 2010) (code words such as "fried chicken" and "ghetto" may provide evidence of discriminatory intent by sending a clear message and carrying the distinct tone of racial motivations and implications); McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1117 (9th Cir. 2004) ("[R]erefence to [the plaintiff] as a 'drug dealer' might certainly be deemed to be a code word or phrase"); Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 278 (3d Cir. 2001) (noting that the use of code words such as "all of you" and "one of them" could be sufficient evidence from which a jury could find an intent to discriminate).
However, courts decline to recognize allegations of code words when the words used activate no racial implications or animus. See Humphries v. City Univ. of New York, No. 13 Civ. 2641, 2013 WL 6196561, at *9 (S.D.N.Y. Nov. 26, 2013); Allen v. Bake-Line Prods., Inc., No. 98 Civ. 1119, 2001 WL 1249054, at *10 (N.D. Ill. Oct. 17, 2001) (plaintiff's allegations of being called "stupid," "lazy," "motherfucker," and "bitch" do not establish racial animus); Santiago v. Connecticut, No. 06 Civ. 277, 2008 WL 4453402, at *6 (D. Conn. Sept. 30, 2008) ("Plaintiff contends that evidence of discrimination may be found in 'code words' his supervisors used about him, including 'violent,' 'PTSD,' 'loose cannon' and 'intimidating.' These 'code words' provide an insufficient basis for a reasonable inference that the incidents were motivated by discriminatory intent"); Cuttino v. Genesis Health Ventures, Inc., No. 04 Civ. 575, 2006 WL 62833, at *6 (D. Conn. Jan. 11, 2006) ("However, the Court does not share [the plaintiff's] view that language such as 'lying' and 'violent'—standing alone—are racial code words.").
Drawing the line between facially race-neutral statements and racially charged code words is difficult. In Humphries, Plaintiff asserted her supervisors used code words used to invoke the stereotype of the "angry black woman" - "aggressive, agitated, angry, belligerent, disruptive, hands on hip, hostile, threatening." Humphries, 2013 WL 6196561, at *9 (citation and internal quotation marks omitted). The court found that "use of the above adjectives to describe an employee could, in combination with other concrete factual allegations, support a claim of racial and/or gender discrimination." Id. However, the court held that without more supporting evidence, the plaintiff's "subjective interpretation of her co-workers' use of these critical but facially non-discriminatory terms does not, itself, reveal discriminatory animus."
The Court is presented with similar facts here, and for the same reasons articulated in Humphries, Plaintiff's claim must fail. Although Mallette's use of certain adjectives - particularly "inarticulate" and "entitled" - to describe Plaintiff could, in combination with other concrete allegations, satisfy Plaintiff's burden at step three, Plaintiff fails to adduce any other evidence of discrimination supporting her claim. The only allegation which remains is that, "[i]n the summer of 2007 [Plaintiff] was on the 4th floor and observed Mallette yelling at Michelle[,] a black female[,] in her office surrounded by her co[-]workers that were all white. [Plaintiff] left quickly, however it was about getting something done on 'time.'" Lloyd Aff. ¶ 36. This allegation, without greater context, does not support an inference of discrimination. Thus, Plaintiff has offered no evidence in conjunction with the alleged 'code words' that satisfy her burden at step three. Indeed, in two separate depositions Plaintiff was pressed to, but could not, name a single racial or gender-related incident or comment. During her administrative deposition, Plaintiff was asked whether Mallette "ever exhibited or made any racist comments or exhibited any racist tendencies that you know of," to which Plaintiff answered, "Racist comments? Not racists comments, no, not to me." Lloyd Dep. 43:25-44:11, April 30, 2010. When asked if she was aware of Mallette "making any racist comments to anyone else," Plaintiff replied, "No." Id. at 44:9-11. She was also unable to recall any instance when Kulinich ever "exhibited racist tendencies against [Plaintiff] or said racist comments." Id. at 61:6-18. Similarly, in her recent deposition Plaintiff was asked repeatedly for any instance where anybody in the USAO said anything explicitly racist or sexist - and she was unable to cite a single occasion. She was unable to recall whether there was "ever any time" when Mallette "said anything that was expressly racist or discriminatory," or when any other supervisor ever uttered any racial term. Lloyd Dep. 30:4-21, March 21, 2013. Likewise, Lloyd was unable to recall hearing a single discriminatory gender-based comment. Id. at 31:12-17.
Additionally, Plaintiff has not presented evidence that would permit a rational jury to conclude that the legitimate, nondiscriminatory reasons offered for not promoting Plaintiff were a pretext for race and gender discrimination. See Roge v. NYP Holdings, Inc., 257 F.3d 164, 170-71 (2d Cir. 2001). Plaintiff's opposition does not clearly address why she believes the legitimate, nondiscriminatory reasons Defendant offered are pretextual. However, in her affidavit, she rebuts some of Defendant's assertions and offers evidence of her outstanding performance while employed in the Criminal Clerk's Office through merit awards, certificates, evaluations, and letters of recommendation, attached as exhibits. However, many of Defendant's legitimate, non-discriminatory reasons go unrebutted, and thus must be accepted as true. See Planas, 975 F. Supp. at 305 n.2. For example, Plaintiff does not deny that she walked out of her evaluations (Mallette Decl. ¶¶ 42-52; Hopkins Decl. ¶¶ 7, 8) and that she failed to even show up to her originally scheduled interview for the Lead Legal Assistant position (Mallette Decl. ¶ 64). Plaintiff also failed to rebut Defendant's assertion that she entered less data than other employees (Mallette Decl. ¶ 19), was strategically absent on days that required a lot of work (Id.), and had trouble meeting deadlines (Kulinich Decl. ¶ 6). Given these admitted facts, and others, no reasonable jury could conclude that the legitimate, nondiscriminatory reasons offered for not promoting Plaintiff were a pretext for race and gender discrimination.
Accordingly, Defendant is entitled to summary judgment on Plaintiff's race and gender discrimination claim.
IV. Hostile Work Environment
Title VII prohibits employers from "discriminat[ing] 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)(1). The Supreme Court has held that the phrase "terms, conditions, or privileges of employment" evinces a congressional intent "to strike at the entire spectrum of disparate treatment" and thus creates a cause of action for hostile work environment claims. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (citations and internal quotation marks omitted). However, "[c]onduct that is 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." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Also, "if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation." Id. at 21-22. Thus, the environment must be reasonably perceived, and actually perceived, as hostile or abusive. Id. at 22. Additionally, it is "axiomatic that mistreatment at work, whether through subjection to a hostile environment or through [other means], is actionable under Title VII only when it occurs because of an employee's . . . protected characteristic," such as race or gender. Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (citation omitted). Thus, personal animus without evidence of race or gender bias is insufficient to establish a claim under Title VII. See Lennert-Gonzalez v. Delta Airlines, Inc., No. 11 Civ. 1459, 2013 WL 754710, at *8 (S.D.N.Y. Feb. 28, 2013).
All of Plaintiff's allegations in support of her hostile work environment claim are facially race and gender neutral. For instance, Plaintiff complains that Mallette talked about Plaintiff behind Plaintiff's back (Lloyd Aff. ¶¶ 15, 22), questioned Plaintiff about her work schedule (Id. at ¶¶ 16, 17), asked Plaintiff a "barrage of questions" (Id. at ¶ 17), requested that Plaintiff not work overtime (Id. at ¶ 18), "micro[-]manag[ed]" Plaintiff and used "in your face, blunt, abrasive talking and divisive tactics" (Id. at ¶ 20), questioned Plaintiff's work product (Id. at ¶¶ 21, 27), turned Plaintiff's co-workers against her (Id. at ¶ 22), confronted Plaintiff stating, "'I know you want me to go away'" (Id. at ¶ 24), requested that Plaintiff water plants (Id. at ¶ 28), relied on "verbal abuse as a motivational tool" (Id. at ¶ 29), and generally engaged in other "divisive, discriminatory, and . . . bully[ing]" behavior. Id. at ¶ 35. To the extent that Plaintiff alleges that Mallette's "harassment" was race-based, such allegations do not suffice to create an issue of fact as to whether Plaintiff was subjected to a race-based hostile work environment for the same reasons discussed in Section III of this opinion. No reasonable fact-finder could find by a preponderance of the evidence that race or gender caused Defendant to subject her to a hostile work environment. See Clemente v. New York State Div. of Parole, 684 F. Supp. 2d 366, 377 (S.D.N.Y. 2010).
Even if Plaintiff could establish that she was harassed on account of her race and gender, her hostile work environment claim would likely still fail. The behavior about which she complains is likely too trivial to be actionable under the objective portion of the hostile work environment test. "'Hostile work environment' claims are meant to protect individuals from abuse and trauma that is severe. They are not intended to promote or enforce civility, gentility or even decency." Curtis v. DiMaio, 46 F. Supp. 2d 206, 213-14 (E.D.N.Y. 1999), aff'd, 205 F.3d 1322 (2d Cir. 2000). That is because Title VII is not a "general civility code," Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (citations and internal quotation marks omitted), and is inapplicable to "complaints attacking the ordinary tribulations of the workplace." Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citation and internal quotation marks omitted). --------
Accordingly, Defendant is entitled to summary judgment on Plaintiff's hostile work environment claim.
V. Retaliation
To establish a prima facie case of retaliation under Title VII, a plaintiff must generally show that: (1) she engaged in a protected activity by opposing a practice made unlawful by Title VII; (2) her employer was aware of that activity; (3) she suffered a materially adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action. Tepperwien v. Entergy Nuclear Ops., Inc., 663 F.3d 556, 568 n.6 (2d Cir. 2011).
There are only two instances of protected activity here: Plaintiff's August 4, 2008 Equal Employment Opportunity Commission complaint, and this lawsuit, filed on May 10, 2011. Plaintiff has not satisfied the second element, as she has not demonstrated that Defendant, Mallette, or any other supervisor or manager was aware of the complaint or lawsuit. Indeed, Plaintiff's affidavit does not recount any events that took place after she was denied the Lead Legal Assistant position in August 2008 and her exhibits are equally devoid of any evidence demonstrating Defendant was aware of the complaint or lawsuit. Additionally, Plaintiff does not even contest Defendant's assertion that she is unable to establish a prima facie case of retaliation in her opposition. "Federal courts may deem a claim abandoned when a party moves for summary judgment on one ground and the party opposing summary judgment fails to address the argument in anyway." Taylor v. City of New York, 269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003) (citation omitted).
Accordingly, Defendant is entitled to summary judgment on Plaintiff's retaliation claim.
CONCLUSION
For the reasons stated above, Defendant's motion for summary judgment is GRANTED in its entirety. The Clerk of Court is directed to terminate the motion (ECF No. 78) and to close the case.
SO ORDERED. Dated: December 17, 2013
New York, New York
/s/_________
ANALISA TORRES
United States District Judge