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holding that plaintiff failed to establish a causal link between his termination and his race when plaintiff was replaced by an individual in the same protected class
Summary of this case from Pearson v. Merrill LynchOpinion
No. 01 Civ. 11589 (RWS).
March 29, 2005
JOSEPH FLEMING, ESQ. By: ESQ., New York, NY, Attorney for Plaintiff.
MAYER, BROWN, ROWE MAW By: GARY D. FRIEDMAN, ESQ., ANDREW M. KOFSKY, ESQ., KIM L. GRAHAM, ESQ., New York, NY, Attorneys for Defendant.
OPINION
The defendant CIBC World Markets ("CIBC") has moved pursuant to Rule 56(c), Fed.R.Civ.P., for summary judgment dismissing the employment discrimination action of plaintiff Hallie Lamont Randolph ("Randolph"). For the reasons set forth below, the motion is granted.
Randolph was discharged after a complaint of harassment was filed against him and an investigation was conducted. Although he has challenged, in a somewhat conclusory fashion, the findings reached during the investigation, Randolph has not presented evidence to establish that his discharge was discriminatory. Nor has he set forth any other evidentiary basis for his other claims of employment discrimination.
Prior Proceedings
On February 28, 2001, Randolph filed a charge of race discrimination with the EEOC. On August 20, 2001, he requested a Right to Sue, which is a prerequisite to commencing a federal action pursuant to Title VII of the Civil Rights Act of 1964, as amended by the Equal Opportunity Employment Act of 1972 and the Civil Rights Act of 1991, 42 U.S.C. §§ 2000e to 2000e-17. The EEOC issued a Right to Sue letter on November 16, 2001. On December 19, 2001, Randolph filed his complaint alleging the following three causes of action against CIBC:
Count One — discrimination on account of his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-5 et seg. ("Title VII"), referring to himself as an African-American (Compl. ¶ 1) and black (Compl. ¶ 4).
Count Two — intentional infliction of emotional distress under New York common law; andCount Three — defamation under New York common law.
On July 26, 2002, Counts Two and Three were dismissed with prejudice on the grounds that they were time barred. Discovery was then undertaken with respect to Count One.
The instant motion by CIBC was heard and marked submitted on December 8, 2004.
The Facts
CIBC has submitted a Local Civil Rule 56.1(a) Statement. Randolph has submitted his Counter Statement and Declaration. Randolph's Counter Statement does not consist of a paragraph-by-paragraph response and he has not responded to 37 of the 91 paragraphs in the CIBC Statement. As to another 16 paragraphs, Randolph seeks to "dispute" them in one sentence. (See Pl.'s 56.1 Resp. at ¶ 30) (stating that "[Randolph's] termination (Para 76 through 91) was not based on the complaint of Jennifer Leotis because none of Ms. Leotis's serious allegations were ever truly substantiated.")).
The only evidence cited in Randolph's declaration in opposition to support the Title VII claim is the investigative report of Teresa Savory ("Savory") and the deposition of Michelle Burns ("Burns"). Randolph's failure to comply with Local Civil Rule 56.1 has complicated the following statement of facts. The facts set forth below are not in material dispute except as noted.
CIBC is a global financial institution which has its world headquarters in Toronto, Canada. From 1997 through January 2003, CIBC operated a U.S.-based broker-dealer business based in New York City which it acquired in 1997 by purchasing Oppenheimer Co., Inc. ("Oppenheimer").
CIBC's U.S.-based broker-dealer business included at all times an operations department. From 1995 through October 2000, Michael Weiss ("Weiss") was the director of this operations department. From February through October of 2000, Weiss reported to Salvatore Iannuzzi ("Iannuzzi"), CIBC's chief administrative officer for the United States.
From 1995 through the termination of Randolph's employment in October 2000, Lawrence Spaulding ("Spaulding") was the assistant director of CIBC's operations department. In this capacity, Spaulding reported directly to Weiss.
Randolph was hired on or about November 24, 1986 as a supervisor in the mutual funds department, which was part of the operations department. On the "Employment and Personal History Form" that he completed in connection with his application for employment, Randolph wrote that he attended Fairleigh Dickinson University, majoring in business management, and he completed the box entitled "Degree or Diploma Received" by writing "B.S. Business Mgmt." and checked "Yes" under the column marked "Did you Graduate?" Randolph signed the employment application and in so doing verified that he "[understood] that any falsification or misstatement on the application . . . [were] . . . grounds for immediate discharge."
Randolph stopped attending classes at Fairleigh Dickinson University in 1982, at which time he lacked a sufficient number of credits for a bachelor's degree. With respect to the representation on his employment application concerning his academic status, Randolph stated that he believed that he was "close enough" to graduating and that he never corrected the representation because he "didn't feel it was important."
At all times during the course of his employment with CIBC, and earlier with Oppenheimer, Randolph was the most senior person, by title, in the mutual funds department. He received promotions in August 1989 to the position of assistant manager, in May 1993 to the position of assistant vice president, and in May 1996 to the position of vice president. All of these promotions were approved by Weiss. From 1995 through 2000, Randolph received five bonuses equaling $88,500 and six annual increases to his salary, bringing his salary from $55,500 to $90,000. All such salary increases were approved by Weiss.
At some point in 1998, Randolph began reporting directly to Spaulding. For all employees reporting directly to Spaulding, decisions regarding salary increases, bonuses and promotions were made by Spaulding in consultation with Weiss. Weiss had final responsibility for decisions regarding compensation or promotions of the managers in the operations department.
In September 2000, Spaulding submitted a recommendation to Weiss that Randolph be promoted from director to executive director. In conjunction with CIBC's annual review process, Spaulding noted on an October 2, 2000 spreadsheet that he would recommend Randolph for this promotion and an annual salary increase to $100,000. Weiss subsequently approved these recommendations. Prior to the filing of the harassment complaint against him, Randolph was told that he had been recommended for a promotion to executive director.
During the spring of 2000, Lester Elson ("Elson") was the associate manager of CIBC's mutual funds department. In this capacity, he reported to Randolph, and he was the second most senior member, by title, of the mutual funds department as of October 2000. Elson, who is black, replaced Randolph following Randolph's termination.
At all times relevant to this action, CIBC had in place a policy governing workplace harassment, entitled "Harassment in the Workplace — Global Policy and Guidelines/Procedures" (the "Anti-Harassment Policy") which, among other things, stated CIBC's zero tolerance policy regarding workplace harassment. Randolph received and read the Anti-Harassment Policy but has challenged its wide distribution before 2000 and has characterized it as a "sham" and not enforced against white employees.
The Anti-Harassment Policy expressly forbids leering, unwelcome touching, and sexually suggestive comments. Pursuant to the Anti-Harassment Policy, "[m]anagers must ensure that employees are aware of and abide by this policy and that the work environment they are responsible for is free from harassment." (Randolph Dep. Ex. 19, at 8.) The Anti-Harassment Policy also explicitly states that "[r]etaliation is a serious violation of the Company's non-harassment policy" and that "[a]ny person who retaliates against another individual for reporting any perceived acts of harassment will be subject to disciplinary action, up to and including discharge." (Id.)
On April 20, 2000, John Hunkin ("Hunkin"), CIBC's global chairman and chief executive officer, distributed a memorandum by electronic mail to all employees of CIBC which reiterated CIBC's "zero tolerance" policy towards workplace harassment. Among other things, Hunkin's memorandum stated: (1) that CIBC was committed to ensuring a work environment in which "every employee is treated with respect and dignity"; (2) that the Anti-Harassment Policy prohibited "any conduct that disrupts or interferes with another person's work performance"; and (3) that all employees were required to conduct themselves in a manner that exhibited "respect for all individuals, including dealings with co-workers, clients, vendors or the public." (Randolph Dep. Ex. 17.) Randolph received and reviewed the April 20, 2000 "zero tolerance" memorandum.
During his employment with Oppenheimer and CIBC, Randolph received sexual harassment training, which he states was of such limited scope and nature that he did not consider it to be serious.
On or about June 16, 2000, Jennifer Leotis ("Leotis") was hired by CIBC as a clerk in the mutual funds department. During the course of Leotis's employment at CIBC, Randolph made numerous comments about Leotis's appearance, including her clothing, various parts of her body and her weight. Examples of such remarks made by Randolph about Leotis included that she was "stacked in all the right places," (Deposition of Hallie Lamont Randolph taken November 12 and 18, 2003 ("Randolph Dep."), at 220-221; February 26, 2004 Deposition of Jennifer Leotis ("Leotis Dep."), at 18, 24-25, 49; Declaration of Jennifer Leotis sworn to August 10, 2004 ("Leotis Decl."), at ¶ 5), had a "butt like a black woman," (Randolph Dep. at 219-21; Randolph Dep. Ex. 13 at 4, 17-18;), and had gained weight in various parts of her body. (Leotis Dep. at 16; Randolph Dep. Ex. 13 at 2-3; Leotis Decl. at ¶ 8). Moreover, on one occasion Randolph rubbed Leotis' shoulders while she was at her desk (Randolph Dep. at 221; Randolph Dep. Ex. 13 at 1,4; Leotis Dep. at 20-21; Leotis Decl. at ¶ 6.) According to Leotis, this physical contact made her feel uncomfortable. (Leotis Dep. at 20-21; Leotis Decl. at ¶ 6.)
On September 29 and October 2, of 2000, Leotis spoke privately with several female co-workers, including Burns, Gwendolyn Leslie ("Leslie"), Eleanor Graham ("Graham") and Jennifer Sterling ("Sterling"). (Leotis Dep. at 61-62; Leotis Decl. ¶ 9; Randolph Dep. Ex. 13 at 5-7; July 12, 2004 Deposition of Michelle Burns ("Burns Dep."), at 9-10; February 19, 2004 Deposition of Gwendolyn Leslie ("Leslie Dep."), at 16.) Leotis asked these co-workers for advice on what to do concerning Randolph's conduct, and she told them that his conduct had made her upset. At least one of Leotis's co-workers told her that she should report Randolph to CIBC's human resources department.
On or about October 3, 2000, Leslie and Burns warned Randolph that Leotis was upset with him and was considering filing a complaint against him with CIBC's human resources department.
On Wednesday, October 4, 2000, Randolph called Leotis into his office for a closed-door meeting at which he and Elson were present. During this meeting, Randolph told Leotis that he would write her up for failing to furnish CIBC with the appropriate documentation concerning a disability leave which Leotis had taken due to injuries she apparently suffered in a car accident. Leotis responded that she had previously provided the relevant forms. During this meeting, Randolph also told Leotis that he was upset that she was considering lodging a complaint with the human resources department.
Later that day, Randolph called Leotis back into his office for a second meeting alone. At this meeting, he told Leotis that he felt "betrayed" by her because she was thinking of lodging a complaint with the human resources department. (Randolph Dep. at 196, 202; Randolph Dep. Ex. 13 at 1, 3, 5, 17, 22; Leotis Dep. at 50-51; Leotis Decl. ¶ 11.) He also stated that she was not the only "attractive" or "shapely" woman, or woman with "curves," in the department. (Randolph Dep. at 198-99, 211, 307, 310; Randolph Dep. Ex. 13 at 1, 3, 5, 17, 22; Leotis Dep. at 50-51; Leotis Decl. ¶ 11.) He also told her that if she wanted to have a "mature" conversation with someone, she should be prepared to "handle what happens." (Randolph Dep. at 198-201, 205; Randolph Dep. Ex. 13 at 3, 5, 16; Leotis Dep. at 33, 51; Leotis Decl. at ¶ 11.) Leotis was apparently terrified by these comments, feared that she would lose her job, and immediately thereafter recounted this meeting to her co-worker Graham.
On Thursday, October 5, 2000, Leotis went to the human resources Department of CIBC, asked to speak with someone regarding a complaint of sexual harassment and was directed to Savory, a Director of Human Resources/Employee Relations Consultant.
Randolph has denied that his remarks were threatening, and he has characterized Leotis' complaint as a sham and anticipatory based on his criticism of her decorum and work practices.
On October 5, Savory met with Leotis and took her complaint of harassment against Randolph. Savory then met with Steven Messinger ("Messinger"), Savory's immediate supervisor and the head of the employee relations group at the time, who determined that Savory, who had conducted more than a dozen investigations throughout her career, should lead the investigation. Messinger indicated that Savory would be joined in this capacity by Esther Lumague ("Lumague"), director of human resources and the human resources representative assigned to the Operations Department.
It was apparently Savory's custom and practice when responding to a complaint of harassment to commence the investigation by first interviewing the complainant and then immediately interviewing the subject of the complaint. Following these two interviews, Savory typically would conduct additional interviews with potential witnesses who had been identified by either the complainant or the subject of the complaint and also any other people who Savory believed might have relevant knowledge or information concerning the conduct at issue. Savory followed this practice with respect to the investigation of Leotis' complaint.
During each interview in the course of the investigation, Savory took handwritten notes during each interview she conducted, and she later retyped these notes. Those typewritten notes formed the basis for Savory's October 27, 2000 final report (the "Investigation Report") (See Randolph Dep. Ex. 13.)
On Friday, October 6, 2000, the day after Leotis made her complaint to CIBC's human resources department, Savory and Lumague interviewed Randolph. Before the interview had begun, and before Randolph had been told why the meeting had been called, Randolph stated that he knew he had been asked to meet with a representative of the human resources department because of a complaint that had been made by Leotis. The Investigative Report reflects that during his interviews, Randolph admitted to the following conduct and comments:
• Randolph made comments to other male employees about Leotis' body, including that Leotis had "a butt like a black woman." (Investigative Report at 4.)
• Randolph made a disparaging remark about Leotis' weight, referring to the size of her "butt" and legs. (Id. at 3.)
• Randolph made a gesture to Leotis to indicate that she had gained weight. (Id. at 2-3.)
• Randolph had a meeting with Leotis and Elson on Wednesday, October 4, 2000, at which Randolph reprimanded Leotis for failing to provide a note from a doctor concerning her recent disability leave. (Id. at 3.)
• Randolph told Leotis that "she was not the only attractive person in the department and she would not be the last and that if she wanted to have a mature conversation with someone she should be prepared to have it." (Id.)
• Randolph had previously "crossed the line" in a conversation he had at some earlier time with Burns, a subordinate employee. (Id.)
Following the interviews of Randolph and Leotis, the investigators interviewed (1) various employees identified by Randolph and Leotis who worked in the mutual funds department and (2) other persons whom the investigators believed would have relevant knowledge or information.
On October 11, 2000, Burns, an employee in the mutual funds department, was interviewed by Savory and Lumague. According to the Investigation Report, Burns made the following statements:
• On a "continuous basis," Randolph would make comments about the attire of women in the department. (Id. at 6.)
• Randolph would refer to the body parts of female employees, including their "butts" and legs. (Id.)
• Randolph told Burns that she had put on weight, particularly in her rear end. (Id.)
• Burns believed that Randolph was not a "normal boss" and that he joked too much. (Id.)
• Randolph touched nearly all of the women in the department on their shoulders, either to massage them or just to touch them. (Id. at 7)
• Other women in the department had told Burns that Randolph had made comments that had upset them. (Id.)
• Randolph made comments about the body and weight of Graham, including that Graham had gained weight in "her behind." (Id. at 8)
• Randolph made other comments to Burns which she regarded as inappropriate, and, at one point, she considered going to Human Resources because Randolph said something to her that had "really `pissed' her off." (Id.)
Randolph has challenged the Investigation Report by citing portions of Burns' deposition testimony that he alleges contradict its contents.
On Thursday, October 12, 2000, Savory and Lumague interviewed Elson. According to the Investigation Report, Elson told the investigators that during the meeting on October 4, 2000, Randolph told Leotis that he was hurt that she felt the need to go to someone else or to complain about him. (Id. at 9.)
On October 12, 2000, Savory and Lumague interviewed Graham, an employee of the mutual funds department. According to the Investigation Report, Graham stated during the interview that:
• Randolph had given her a massage without her consent, and she was uncomfortable with this physical contact. (Id. at 10.)
• Randolph frequently mentioned that she had gained weight, and, as a result of Randolph's conduct, Graham stated that she began wearing baggy clothing. (Id.)
• Randolph referred to her as "Strutting" and "Thickness." Graham stated that these comments made her feel uncomfortable. (Id.)
• Randolph, at times, would hold a ruler in his hand and threaten to measure the size of the rear ends of women in the department, including Graham. This upset Graham and she tried to avoid Randolph as a result. (Id.)
• Randolph would often walk around to see what the women in his department were wearing that day and he would often call women into his office to ask what they were doing that night. (Id. at 11.)
Following these interviews, Savory informed Iannuzzi that in addition to Leotis, several of the women in Randolph's department had reported that some of Randolph's conduct and comments were inappropriate and unwelcomed. In view of the information gathered by the investigators, the nature of the allegations against Randolph, the fact that Randolph was a long-term employee of the company, and CIBC's zero-tolerance policy regarding harassment, Iannuzzi believed it was prudent to have CIBC's legal department become involved in the investigation.
Following Iannuzzi's initial briefing, Charles Gerber ("Gerber"), CIBC's global director of litigation, participated in the investigation of the Leotis complaint, including reinterviewing (along with Savory) the witnesses who had been interviewed by Savory and Lumague (with the exception of Leotis) and interviewing additional employees in the mutual funds department. In addition, Mark Kaplan ("Kaplan"), CIBC's general counsel, provided legal advice and counsel regarding the investigation.
The additional mutual funds employees who were subsequently interviewed included Leslie and Meiyan Szeto ("Szeto"). According to the Investigation Report, Leslie stated that:
• Leotis had complained to her about the statements and conduct of Randolph before Leotis filed her complaint with human resources. (Id. at 11.)
• Prior to Leotis's complaint, Leslie had told Randolph that because he was in a position of power, he needed to refrain from making certain comments. (Id. at 12.)
• Leslie was aware that both Burns and Graham were offended by comments made by Randolph. (Id.)
• Randolph had given massages to Leslie and other female employees in the department. (Id.)
On October 23, 2000, Gerber and Savory conducted a second interview of Graham. According to the Investigation Report, Graham made the following additional statements at this interview:
• She heard Randolph say that if a "butt measuring" contest were ever held, he knew that Sari Garcia ("Garcia"), an employee in the mutual funds department, would win because she had the largest rear end. Burns stated that Garcia, who was present when Randolph made this remark, was very upset by this comment, and said to Burns that Randolph "makes [her] sick." (Id. at 21.)
• She stated that Randolph has bad judgment and says things without thinking. (Id.)
On October 24, 2000, Gerber and Savory conducted a second interview with Elson. According to the Investigation Report, Elson stated during this interview that at the October 4, 2000 meeting in Randolph's office, Randolph told Leotis that "she was not the most attractive woman in the department." (Id. at 22.) In addition, Elson stated that he had heard Randolph make comments regarding the weight of female employees. (Id. at 23.)
Following the completion of the investigation, it was Savory's view that Randolph had repeatedly violated the Anti-Harassment Policy and that his employment with CIBC should be terminated. Her view was premised, inter alia, on the following facts:
• Randolph admitted to having made many of the comments and engaged in much of the conduct attributed to him, even though he often interpreted his conduct and comments differently from the others who were interviewed.
• Randolph was in a management position, and his conduct and comments had been directed at various subordinate employees whom he supervised.
• Several subordinate employees in addition to Leotis had told the investigators that some of Randolph's conduct made them feel uncomfortable, and that they had each endured multiple instances of such conduct.
• More than one subordinate employee stated that, as a result of Randolph's conduct and in order to avoid future occurrence of such conduct, they had altered their manner of dress and appearance.
• Randolph, in confronting Leotis at two meetings on October 4, 2000 about her intention to file a complaint, had engaged in retaliatory conduct towards Leotis in violation of CIBC's Anti-Harassment Policy.
• Randolph's conduct had the potential to expose CIBC to significant legal liability.
(Declaration of Teresa Savory signed August 10, 2004 ("Savory Decl"), at ¶¶ 14-15.)
During October 2000, Iannuzzi was advised of the complaint and the investigation, but had never met nor spoken to Randolph or Leotis, and he did not know the race of either Randolph or Leotis. Randolph never met Iannuzzi and has no knowledge concerning him.
On Friday, October 27, 2000, following the completion of the investigation, Savory sent Iannuzzi the Investigation Report. Iannuzzi told Savory that he wanted to review this report over the weekend in anticipation of a meeting which was to take place on October 30, 2000.
On October 30, 2000, Iannuzzi participated in a meeting to discuss the results of the investigation (the "October 30 Meeting"). Present at the meeting were Gerber, Savory, Jennifer Board ("Board"), head of human resources of CIBC World Markets, Weiss, Kaplan, Lumague and Spaulding.
During the October 30 Meeting, Savory made a factual presentation concerning the investigators' findings. Everyone present at the meeting agreed that some form of disciplinary action against Randolph was warranted. Options discussed included rescinding Randolph's upcoming promotion, reducing or eliminating his bonus, and terminating his employment. The participants at the meeting noted that Hunkin's April 20, 2000 memorandum had reemphasized the Anti-Harassment Policy.
Based on the October 30 Meeting, Iannuzzi decided that the most appropriate course of action was to terminate Randolph's employment. According to Iannuzzi, factors militating in favor of termination included the following:
• Randolph had admitted to much of the inappropriate conduct and comments attributed to him.
• Randolph was in a management position, and his conduct and comments had been directed at subordinate employees whom he supervised.
• Several subordinate employees, in addition to Leotis, had told the investigators that some of Randolph's conduct and comments made them feel uncomfortable, and that such conduct was not isolated.
• Randolph had confronted Leotis at meetings in his office after learning that Leotis intended to file a harassment complaint.
• Iannuzzi would not want his wife or daughter to be subjected to the conduct and comments attributed to Randolph.
(Declaration of Salvatore Ianuzzi signed July 30, 2004 ("Ianuzzi Decl."), at ¶ 13.)
Iannuzzi was the sole decision-maker with respect to the decision to terminate Randolph's employment.
On October 31, 2000, Spaulding informed Randolph of his termination. Savory and Gerber were also present at this meeting. At no time during this termination meeting did Randolph ever state that he had been discriminated against or otherwise treated unfairly on account of his race. Moreover, at no time during his employment did Randolph ever complain about race discrimination or mistreatment on account of race. Randolph has stated that he does not know who at CIBC discriminated against him on account of race.
In November 2000, after Randolph's employment had been terminated, Spaulding recommended, and Iannuzzi approved, a bonus payment for Randolph in the amount of $40,000 for fiscal year 2000, which ended on October 31, 2000. Iannuzzi and Spaulding believed that, notwithstanding Randolph's conduct, he had worked the full fiscal year and was therefore entitled to compensation for services rendered. CIBC did not require a separation agreement or release in exchange for that bonus payment.
Following Randolph's termination, his position was filled by Elson, a person of the same race as Randolph. Randolph has noted that Elson is no longer employed by CIBC. CIBC states that Elson has relocated to Florida.
DISCUSSION 1. Summary Judgment Standard
Pursuant to Rule 56, Fed.R.Civ.P., summary judgment may be granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.See Fed.R. Civ .P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); SCS Communications, Inc. v. Herrick Co., Inc., 360 F.3d 329, 338 (2d Cir. 2004). The court will not try issues of fact on a motion for summary judgment, but, rather, will determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
Summary judgment is appropriate where the moving party has shown that "little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir. 1994) (internal citations omitted). If, however, "`as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper.'"Security Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004) (quoting Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996)).
"The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995) (citation omitted). This burden may be satisfied "by showing — that is pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam) (internal quotation marks and citations omitted); accord Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).
In order to defeat a motion for summary judgment, the non-moving party must offer sufficient evidence to enable a reasonable jury to return a verdict in its favor. See Anderson, 477 U.S. at 248; Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001); Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). In other words, the non-moving party "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993);accord Scotto, 143 F.3d at 114-15.
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, 477 U.S. at 248; see also R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997). Thus, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248; see also Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985) (per curiam) ("[T]he mere existence of factual issues — where those issues are not material to the claims before the court — will not suffice to defeat a motion for summary judgment."). In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir. 2002).
2. Statutory Framework
Title VII provides, in pertinent part, as follows:
It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.42 U.S.C. § 2000e-2(a).
3. Randolph's Allegations Of Discrimination
In the complaint, Randolph alleges that CIBC: (1) "failed to recognize and reward [his] contributions to [CIBC] by denying him the same promotional and advancement opportunities made available to Caucasian employees with less experience, seniority and productivity" (Compl. ¶ 12(a)); see also id. ¶¶ 12(f), (h), (i)); (2) "failed to provide [him] with the same level of departmental support and assistance made available to [his] Caucasian counterparts" (Compl. ¶ 12(e)); (3) "used an unsubstantiated complaint [of sexual harassment] by a Caucasian female employee . . . to terminate [his] employment" (Compl. ¶ 12(c); see also id. ¶ 12(k)); (4) "failed to properly and adequately respond to [his] complaints about disparate treatment . . . in CIBC's response to the unsubstantiated claim of sexual harassment by a probationary Caucasian employee . . ." (Compl. ¶ 12(g)); (5) "created, maintained and allowed a hostile work environment to exist by its willful efforts to keep [him] below a certain level in the company . . ." (Compl. ¶ 12(b)); and (6) "created and allowed to exist an atmosphere permeated with hostility, directed toward [him] because of his color and race" (Compl. ¶ 12(d); see also id. ¶ 12(j)).
In short, Randolph argues that he was subjected to disparate treatment by CIBC on the basis of his race. The Second Circuit has stated that
a plaintiff may establish a claim of disparate treatment under Title VII either (1) by showing that he has suffered an adverse job action under circumstances giving rise to an inference of discrimination on the basis of race, color, religion, sex, or national origin, or (2) by demonstrating that harassment on one or more of these bases amounted to a hostile work environment.Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004) (quotingRaniola v. Bratton, 243 F.3d 610, 617 (2d Cir. 2001)). A. CIBC's Motion For Summary Judgment Is Granted As To Randolph's Adverse Employment Action Claims
Claims of discrimination based on an adverse employment actions are analyzed under the three-part test announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, in order to establish a prima facie case, a plaintiff must show: (1) that he or she is a member of a protected class, (2) that he or she was qualified for the position in question, (3) that he or she suffered an adverse employment action, and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination. See id. at 802; Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003); Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002); Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000).
As the Second Circuit Court of Appeals has recently observed:
An "adverse employment action" is one which is "`more disruptive than a mere inconvenience or an alteration of job responsibilities.'" Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (quoting Crady v. Liberty Nat'l Bank Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir. 1993)). Examples of materially adverse employment actions include "`termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation.'" Id. (quoting Crady, 993 F.2d at 136).Feingold, 366 F.3d at 152.
Where a plaintiff makes out a prima facie case, the defendant must then rebut the plaintiff's showing by articulating a legitimate, non-discriminatory reason for the employment action in question. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981); Weinstock, 224 F.3d at 42. Upon defendant's articulation of such a reason, the presumption of discrimination arising with the establishment of the prima facie case "drops from the picture," and for the case to continue, the plaintiff must present evidence that the proffered reason is "a mere pretext for actual discrimination." Weinstock, 224 F.3d at 42; see also Feingold, 366 F.3d at 152 ("If the defendant has stated a neutral reason for the adverse action, `to defeat summary judgment . . . the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination.'") (quoting Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997)).
i Randolph Has Failed To Demonstrate That The Circumstances Of His Dismissal Give Rise To An Inference of Discriminatory Intent
For the purpose of this motion, CIBC has conceded that Randolph belongs to a protected class, that his October 31, 2000 termination was an adverse employment action, and that Randolph was qualified for his position prior to the time that his violations of CIBC's anti-harassment policy were discovered. However, CIBC argues that with respect to his termination, Randolph has failed to establish the fourth element of the prima facie case for an adverse employment action claim — i.e., "that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent." Feingold, 366 F.3d 138 (citing Collins, 305 F.3d at 118).
Where a plaintiff has alleged that he was the victim of discrimination based on his termination for misconduct, the Second Circuit has stated that "[w]hether or not [the plaintiff] was actually guilty of any misconduct has no bearing on the resolution of [a] disparate treatment claim. . . ." Henry v. Daytop Village, Inc., 42 F.3d 89, 96 (2d Cir. 1994) (affirming, in part, summary judgment for defendants on race and sex discrimination claims where plaintiff was terminated for violating employer's disciplinary code); see also Stern 131 F.3d at 315 (stating that "[i]t is simply inappropriate for a court to act `as a super-personnel department that reexamines an entity's business decisions'"); Argueta v. N. Shore Long Island Jewish Health Sys., No. 01 Civ. 4031 (JG), 2003 WL 22670915, at *9 (E.D.N.Y. Nov. 6, 2003) (stating that "[i]t is not the province of this Court to . . . second-guess the nondiscriminatory business decisions of private employers");Agugliaro v. Brooks Bros., Inc., 927 F. Supp. 741, 743 (S.D.N.Y. 1996) (dismissing Title VII claim where plaintiff who had been terminated for cause failed to demonstrate that his former employer had acted in bad faith). Francis v. Runyon, 928 F. Supp. 195, 203 (E.D.N.Y. 1996) (stating that "a court is not to second-guess the defendant's judgment as long as it is not for a discriminatory reason").
Rather, the only relevant inquiry is whether the plaintiff has come forward with enough evidence "from which a rational fact finder could infer unlawful discriminatory animus on the part of [the defendant]." Henry, 42 F.3d at 96.
Here, Randolph has presented no evidence to establish any such causal link between his termination and his race. Indeed, he could not identify anyone at CIBC who had discriminated against him on the basis of his race. (See Randolph Dep. at 136-38, 284-85.) Furthermore, Randolph was replaced by Elson, an individual in the same protected class. "Where no evidence giving rise to an inference of discrimination has been presented, the fact that a plaintiff is replaced with an individual within his protected class undermines his attempt to establish a prima facie case of discrimination." Morris v. N.Y. City Dep't of Sanitation, No. 99 Civ. 4376 (WK), 2003 WL 1739009, at *5 (S.D.N.Y. Mar. 3, 2003); see also Montanile v. Nat'l Broad. Co., 211 F. Supp. 2d 481, 487 (S.D.N.Y. 2002) (stating "[t]hat a plaintiff is replaced by another in the same protected class weighs heavily against the inference that she suffered discrimination"), aff'd, 57 Fed. Appx. 27 (2d Cir. 2003);Umansky v. Masterpiece Int'l Ltd., No. 96 Civ. 2367 (AGS), 1998 WL 433779, at *3 (S.D.N.Y. July 30, 1998) (stating that "the fact that plaintiff was replaced by another white female weighs heavily against an inference that she was discriminated against as a white female").
There is no evidence in the record that Iannuzzi, the sole decision-maker with respect to the termination of Randolph, exhibited any discriminatory animus toward Randolph. Courts of this district have held that plaintiff's failure to provide evidence of bias on the part of the person(s) responsible for an adverse employment action is grounds for dismissal of a Title VII claim. See Griffin v. Ambika Corp., 103 F. Supp. 2d 297, 309 (S.D.N.Y. 2000) (noting that "it is fatal to plaintiffs' case that they [do not] allege that . . . any of the decision-makers who were responsible for their termination[s], harbored discriminatory feelings for them"); Jordan v. Olsten Corp., 111 F. Supp. 2d 227, 236 (W.D.N.Y. 2000) (granting defendant's summary judgment motion in Title VII case where the record failed to raise an inference of the decision-maker's discriminatory animus).
In order to establish the fourth element of his prima facie case, Randolph must demonstrate that he was treated differently from similarly situated employees who are not members of a protected class. See Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997). The Shumway court stated:
[Plaintiff] Shumway argued in opposition to [defendant]'s summary judgment motion that "numerous male supervisory employees violated the [no fraternization] policy . . . and no disciplinary action was taken against these employees." [Citation omitted]. These allegations are insufficient. To establish the fourth element of a prima facie case, Shumway must show that she was treated differently from "similarly situated" males. Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992). To be "similarly situated," the individuals with whom Shumway attempts to compare herself must be similarly situated in all material respects. Mitchell, 964 F.2d at 583.Shumway, 118 F.3d at 64.
Although Randolph has made the general allegation that he was treated more harshly than white CIBC employees who committed similar violations of CIBC's anti-harassment policy (see Randolph Decl. ¶ 16), there is no other evidence in the record to support this assertion. Conclusory allegations of this sort are insufficient to survive a motion for summary judgment. Id. at 65 (stating that "conclusory" allegations concerning the treatment of similarly situated employees "do not raise a genuine issue of material fact"); Alston v. New York City Transit Authority, No. 97 Civ. 1080 (RWS), 1999 WL 540442, at *7 (S.D.N.Y. July 26, 1999) (stating that Title VII plaintiff's "conclusory allegations and failure to provide some factual support for his prima facie case of discrimination do not satisfy even the light burden with which [he] is faced at this stage of the proceedings").
Here, the only evidence in the record on the issue of treatment of similarly situated white employees is the deposition testimony of Savory, who testified that two white CIBC employees were fired for violating CIBC's Anti-Harassment Policy. (See February 19, 2004 Deposition of Teresa Savory ("Savory Dep."), at 49-55.)
Randolph has cited a portion of Burns' deposition in which Burns allegedly stated that she had "advised CIBC that other managers, all of whom were white, engaged in constant acts of sexual harassment far more inappropriate than the acts [Plaintiff] was accused of . . ." (Randolph Decl. ¶ 16.) However, Burns makes no allegation in her deposition that CIBC had ignored complaints or otherwise failed to take appropriate action in response to complaints concerning these other managers. (See July 12, 2004 Deposition of Michelle Burns ("Burns Dep."), at 44-45.) Furthermore, it is clear from Burns' deposition that she did not at any time identify to the CIBC investigators the identities or race of these other managers. (Id.)
Although Randolph does not dispute that Elson replaced him as a manager of the mutual funds department after his termination, he does state that Elson "never received the raise or the promotion promised to [Randolph] and when the Defendant went through its transition, Mr. Elson was not retained." (Randolph Decl. ¶ 31). However, the record reveals that at the time that Randolph was terminated, Elson held the title of associate director, which was one corporate level below that of Randolph. (Randolph Dep. Ex. 13). Following Randolph's termination, Elson was promoted into Randolph's position and was given the title of director, the same title which Randolph held at the time of his termination. (Declaration of Gary Friedman signed November 24, 2004 ("Friedman Reply Decl."), Ex. A at ¶ 8.) After CIBC sold its U.S. Private Client Division to another company in January 2003, Elson left CIBC, relocating to Florida. (Id. at ¶¶ 3,8.)
Based on the foregoing, it is determined that Randolph has failed to establish a prima facie case of disparate treatment.
ii. Randolph Has Not Demonstrated A Genuine Issue of Material Fact As To Whether His Dismissal Was Pretextual
Even if Randolph had established a prima facie case of discrimination, summary judgment would still be warranted on the record before the Court. As stated above, where a plaintiff makes out a prima facie Title VII case, the defendant may then rebut the plaintiff's showing by articulating a legitimate, non-discriminatory reason for the adverse employment action. See Burdine, 450 U.S. at 254-55; Weinstock, 224 F.3d at 42. Upon such showing, the plaintiff must present evidence that the proffered reason is "a mere pretext for actual discrimination."Weinstock, 224 F.3d at 42; see also Feingold, 366 F.3d at 152.
According to courts of this district, a finding that an employee engaged in sexual harassment is a legitimate, non-discriminatory reason for discharging an adverse employment action. See, e.g., DeCintio v. Lawrence Hosp., 797 F. Supp. 323, 324 (S.D.N.Y. 1992) (stating that finding that an employee committed acts of sexual harassment is "an adequate basis for adverse personnel action unless a collective bargaining or other agreement dictates the contrary"); see also Silverman v. City of New York, 216 F. Supp. 2d 108, 119 (E.D.N.Y. 2002) (finding that allegations of sexual harassment constitute a legitimate, non-discriminatory reason for discharge of an employee); Pealo v. AAF McQuay, Inc., 140 F. Supp. 2d 233, 239-40 (N.D.N.Y. 2001) (same).
The Weinstock court described the showing that a Title VII plaintiff must make in order to demonstrate that a defendant's seemingly legitimate, non-discriminatory reason for an adverse employment action is, in fact, pretextual:
The plaintiff must "produce not simply `some' evidence, but `sufficient evidence 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].'" Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (quoting Woroski v. Nashua Corp., 31 F.3d 105, 110 (2d Cir. 1994)). In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, "[i]t is not enough . . . to disbelieve the employer; the factfinder must [also] believe the plaintiff's explanation of intentional discrimination." [St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993)].Weinstock, 224 F.3d at 42.
Randolph has failed to make any such showing. Rather, he has (1) speculated that CIBC's stated reason for his termination was a pretext for discrimination and (2) attacked the credibility of CIBC's investigation into his conduct. Such "[c]onclusory statements and general attacks on the defendant's credibility are insufficient to defeat a motion for summary judgment." Bass v. NYNEX, No. 02 Civ. 5171 (DLC), 2004 WL 1941088, at *5 (S.D.N.Y. Sep. 1, 2004) (quoting Opals on Ice Lingerie v. Body Lines, 320 F.3d 362, 370 n. 3 (2d Cir. 2003); Crawford El v. Britton, 523 U.S. 574, 600 (1998)); see also Gross v. Nat'l Broad. Co., 232 F. Supp. 2d 58, 72 (S.D.N.Y. 2002) (stating that Title VII plaintiff's "conclusory statements and subjective feelings" are inadequate to demonstrate pretext).
a. Randolph's Speculation Concerning CIBC's Motive Is Insufficient To Establish Pretext
Randolph has failed to present any evidence that would establish that the conduct of Iannuzzi, the sole decision-maker regarding his termination, was pretextual.
Instead, Randolph asserts that CIBC terminated his employment in order to prevent him from obtaining a position that would insulate him from any personnel changes in the event that CIBC sold its U.S. Private Client Division or otherwise restructured its operations. His theory appears to be that an opportunity to terminate his employment fortuitously arose in the form of Leotis's charges of sexual harassment, and that CIBC used this opportunity to "rummage through [his] history of employment to find some means to justify their pre-determined decision to terminate him." (Declaration of Joseph Fleming signed October 20, 2004 ("Fleming Decl."), at ¶ 4.)
Randolph's argument is premised on the notion that CIBC sought to prevent him from becoming an executive director, a position that, according to Randolph, would have been insulated from downsizing or other negative consequences of CIBC's restructuring. However, there is no evidence in the record to indicate that the position at issue would have been so insulated. It is undisputed that when CIBC sold its U.S. Private Client Division, of which Randolph's operations department was a component, the vast majority of the employees in Randolph's former department lost their jobs. It is similarly undisputed that of the five individuals in CIBC's operations department who held the title of executive director, only was retained by CIBC, and that employee was retained only because this person had managed the operations department of a predecessor to CIBC.
The restructuring to which Randolph apparently refers —i.e., the sale of CIBC's U.S. Private Client Division to Fahnestock Co., Inc. — occurred in 2003, more than two years after Randolph was terminated.
More fundamentally, Randolph has not identified any CIBC employee who used the opportunity of the Leotis' complaint to terminate him or who discriminated against him in any way. Nor has Randolph provided any other evidentiary support for his theory concerning the actual motive for CIBC's decision to terminate his employment.
b. Randolph's Critique of the Investigation Into Leotis' Allegations Is Insufficient To Establish Pretext
Randolph has asserted that Leotis fabricated her complaint of sexual harassment because she had received warnings concerning her performance. This assertion is not supported by the record. When Savory asked Randolph if he had ever issued a written warning to Leotis about her performance or whether he had ever sent her home as a result of inappropriate attire, Randolph stated that he had not, despite knowing the procedures for doing so. (Randolph Dep. Ex. 13 at 3). Furthermore, the record suggests that the first written criticism of Leotis' performance was issued after Leotis had filed her complaint against Randolph. (See July 13, 2004 Deposition of Ronald Bruno ("Bruno Dep."), at 33-34.)
Randolph argues that because Leotis's complaint could not be trusted, CIBC "dug up old incidents" to justify its decision to terminate him. However, Randolph does not offer any evidence to seriously challenge the propriety of the CIBC investigation into his conduct. He does not dispute any of the steps that CIBC took in its investigation into the complaint against him, including the number of people involved, the number of interviews, the number of re-interviews, the involvement of CIBC's legal department, and the various meetings that took place before the decision was made to terminate his employment. Nor does Randolph argue that the investigators failed to interview any employee with relevant information concerning the conduct that he is accused to have engaged in.
Rather, Randolph contends: (1) that Savory did not keep reliable interview notes and (2) that CIBC coerced and unduly influenced employees into making statements. (Fleming Decl. at ¶ 5.) These contentions are not supported by the record. Randolph has not pointed to any evidence to demonstrate that Savory's notes were incomplete or otherwise unreliable. Furthermore, none of the non-parties who testified indicated that they were "coerced" or "unduly influenced" as Randolph asserted, and he has not cited to any evidence that would suggest otherwise.
Randolph has alleged that the Savory report is contradicted by the testimony of Burns, who was interviewed twice during the investigation, and the testimony of other unspecified witnesses. At her deposition, Burns reiterated much of what she had told the CIBC investigators, including the following:
• that Randolph made comments to Burns that were of a sexual nature, including at least one that referred to her breast (Burns Dep. at 33);
• that Burns had told investigators that Randolph had gone "overboard" in his relationships with his employees (id. at 43);
• that Randolph "crossed the line" in a conversation with her about a "guy [she] was seeing" (id. at 42, 44);
• that Garcia, another female subordinate employee, may have said that she was upset with Randolph's having made comments about her rear end (id. at 57-58);
• that Graham told Burns that she had been uncomfortable around Randolph for a long time prior to Leotis' complaint because of his comments (id. at 40, 58);
• that Randolph made comments to Graham about her body that were of a sexual nature (id. at 41-42);
• that Leotis, who appeared angry, complained to Graham and Burns about Randolph, stating that she felt she was being sexually harassed and she was considering reporting it to CIBC's human resources department (id. at 9, 47, 59-60);
• that it was not appropriate for Randolph, as the supervisor in the department, to continue to engage in certain types of conversations (id. at 65);
• that Randolph would touch female subordinate employees on their shoulders and had massaged female employees (id. at 12-13, 38);
• that Randolph joined into a conversation between females in which they were joking about who had the "biggest butt" (id. at 14-16, 56) and that Randolph would walk around with a ruler and ask other people what they thought about certain female employees' "butts" (id. at 36);
• that Randolph would point out to female subordinate employees that they had gained weight (id. at 16); and
• that Randolph called himself "an interpreter of dreams" (Id. at 35).
It is significant that the investigation of Randolph's conduct and subsequent termination occurred at a time when CIBC was emphasizing its anti-harassment policy. See Connell v. Consol. Edison Co. of NY, Inc., 109 F. Supp. 2d 202, 209 (S.D.N.Y. 2000) (noting that adverse employment action had been taken against Title VII employee at a time when defendant employer had "heightened concern" over the type of conduct engaged in by the plaintiff).
Similarly, less than six months prior to Leotis's complaint, CIBC had reaffirmed its zero tolerance policy regarding harassment in Hunkin's memorandum, which was distributed to every employee. In fact, Savory testified that she found it significant that Randolph's conduct had occurred so shortly after the reaffirmation of the Anti-Harassment Policy:
Q. So after information was given as to the result of your investigation, what was discussed about Ms. Leotis and Mr. Randolph?
A. The discussion then was about the policy of CIBC, sexual harassment policy, which had then been reemphasized not that long ago.
Q. "Not that long ago," meaning not long before October?
A. Correct, about what would be tolerated and what would not be tolerated, and clearly, there were things that had occurred throughout our investigation that were items that should not be tolerated under the sexual harassment policy. Based on that, Mr. Iannuzzi felt that it was completely inappropriate behavior and felt that behavior such as that would not occur in his department, and this was without him knowing, really, any of the parties, just hearing the information that was his decision.
(Savory Dep. at 110.)
Randolph argues that it was unreasonable for CIBC to view Leotis' allegations as credible. However, the only relevant inquiry is whether CIBC actually did give credence to these allegations. See, e.g., Bradshaw v. Brookdale Hosp. Med'l Ctr., No. 91 Civ. 2241, 1993 WL 289435, at *5 (E.D.N.Y. July 19, 1993). The Brookdale court stated:
[P]laintiff has produced no evidence even suggesting that [defendant] was aware of the allegedly bogus allegation or that [defendant] terminated him for any reason other than the reason it has advanced. The record reveals that [defendant], following an investigation, determined that [the] allegations were credible. Even if [defendant]'s investigation resulted in an inaccurate determination of credibility, plaintiff offers no evidence that [defendant] acted with discriminatory intent.Id. Since Randolph has failed to present evidence of a discriminatory intent and has admitted to engaging in most of the conduct for which he was terminated, there is no genuine issue of fact as to whether CIBC determined that the allegations against Randolph were credible.
In sum, Randolph has failed to come forward with any evidence to demonstrate the pretextual nature of CIBC's seemingly legitimate, non-discriminatory reason for his termination.
Based on the foregoing, CIBC's motion for summary judgment is granted with respect to Randolph's Title VII claim with respect to the alleged discriminatory nature of his dismissal.
iii. Randolph's Has Not Stated a Prima Facie "Failure To Promote" Claim
In the complaint, Randolph asserts that CIBC violated Title VII by denying him promotional opportunities available to similarly situated white employees. (See Compl. ¶¶ 12(a), (f), (h), (i).) The Second Circuit has stated that:
To establish a prima facie case of a discriminatory failure to promote, a Title VII plaintiff must ordinarily demonstrate that: "(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." Brown v. Coach Stores, Inc., 163 F.3d 706, 709 (2d Cir. 1998) (quoting McDonnell Douglas Corp. v. Green, [ 411 U.S. 792, 802] (1973)).Petrosino v. Bell Atlantic, 385 F.3d 210, 226 (2d Cir. 2004). Here, Randolph has failed to come forward with any evidence to establish the most basic elements of the prima facie case —i.e., that he applied for a position for which CIBC was seeking applicants and that he was rejected for such position. It should be noted that the second element of a prima facie failure to promote case cannot be established merely by providing evidence that a plaintiff generally requested consideration for promotion.See id. at 227 (stating that "a specific application is required to `ensure that, at the very least, the plaintiff employee alleges a particular adverse employment action, an instance of alleged discrimination, by the employer.'") (quoting Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998)).
Based on the foregoing, CIBC's motion for summary judgment is granted as to Randolph's "failure to promote" claim.
iv. Randolph Has Not Stated a Prima Facie Case Based on CIBC's Alleged Failure To Provide Adequate Administrative Support
Randolph has alleged disparate treatment based on CIBC's failure to provide him with the same level of administrative support provided to similarly situated white employees. (See Compl. ¶ 12(e).) Under proper circumstances, failure to provide administrative support can give rise to an employment discrimination claim. See, e.g., Epstein v. Kemper Ins. Companies, 210 F. Supp. 2d 308, 316 (S.D.N.Y. 2002) (holding that plaintiff had established a prima facie age discrimination case where there was evidence in the record that "[d]efendant set unattainable job expectations, including inadequate administrative support, unreasonable assignments, and unfair criticisms"). Here, Randolph has provided no evidence to support his allegation concerning CIBC's failure to provide adequate administrative support. Therefore, he has failed to establish a prima facie Title VII case based on this alleged failure on the part of CIBC.
B. CIBC's Motion For Summary Judgement Is Granted As To Randolph's Hostile Work Environment Claim
Randolph has alleged that CIBC subjected him to a hostile work environment in violation of Title VII. (See Compl. ¶¶ 12(b), (d), (j).) The showing that a Title VII plaintiff must make in order to defeat a motion for summary judgment on a hostile work environment claim is well established:
In order to prevail on a hostile work environment claim, a plaintiff must first show that "the harassment was "`sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. . . .'" Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (citations omitted); see also Oncale v. Sundowner Offshore Servs., Inc., [ 523 U.S. 75, 78] (1998) (stating that a hostile work environment is created "[w]hen 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 and create an abusive working environment"). Second, the plaintiff must demonstrate a specific basis for imputing the conduct creating the hostile work environment to the employer. Alfano, 294 F.3d at 373. . . .
Proving the existence of a hostile work environment involves showing both "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 that environment to be abusive." Id. at 374 (quoting Harris v. Forklift Sys., Inc., [ 510 U.S. 17, 21] (1993)).Feingold, 366 F.3d 138, 149-50 (2d Cir. 2004). Here, Randolph has not made even the most cursory evidentiary showing to support his hostile work environment claim. Therefore, CIBC's motion for summary judgment is granted with respect to this claim.
C. Randolph Is Not Entitled To Back Pay
CIBC argue that even if Randolph were to survive summary judgment on his Title VII claims, his alleged misrepresentation on his employment application bars him from recovering front pay, reinstatement, or back pay after November 12, 2003, the date on which his misstatement was discovered. See McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 363 (1995); Matima v. Celli, 228 F.3d 68, 76-77 (2d Cir. 2000) (stating that evidence of Title VII plaintiff's misconduct precluded reinstatement or recovery of front pay and limited recovery of back pay to the period between the date of the wrongful discharge and the date on which the misconduct was discovered).
In light of the Court's determination that defendant is entitled to summary judgment, it is not necessary to reach the issue of the after-acquired evidence of Randolph's wrongful conduct with respect to his employment application. CONCLUSION
This is an appropriate circumstance for summary judgment. Since Randolph has failed to establish a prima facie case with respect to any of his Title VII claims, the motion for judgment dismissing the complaint is granted in its entirety.
It is so ordered.