Shepherd v. BCBG Max Azria Grp., Inc.

Full title: LATRICE DARLENE SHEPHERD, Plaintiff, v. BCBG MAX AZRIA GROUP, INC.…

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Oct 11, 2012

11 Civ. 7634 (RJS) (AJP) (S.D.N.Y. Oct. 11, 2012)

Opinion

11 Civ. 7634 (RJS) (AJP)

10-11-2012

LATRICE DARLENE SHEPHERD, Plaintiff, v. BCBG MAX AZRIA GROUP, INC., Defendant.

ANDREW J. PECK, United States Magistrate Judge

REPORT AND RECOMMENDATION ANDREW J. PECK, United States Magistrate Judge :

To the Honorable Richard J. Sullivan, United States District Judge:

Pro se plaintiff Latrice Darlene Shepherd, an African American woman, brings this action against her former employer, defendant BCBG Max Azria Group, Inc., alleging violations of Title VII, the New York State Human Rights Law ("NYSHRL") and the New York City Human Rights Law ("NYCHRL"). (Dkt. No. 2: Compl. at 1.) Shepherd asserts that BCBG unlawfully discriminated against her on the basis of her race, subjected her to a hostile work environment, and retaliated against her. (Compl. ¶ II.)

Presently before the Court is BCBG's summary judgment motion. (Dkt. No. 25: Notice of Motion.) For the reasons set forth below, BCBG's motion should be GRANTED.

FACTS

Shepherd's at-will employment with BCBG began on June 6, 2008. (Dkt. No. 27: BCBG Rule 56.1 Stmt. ¶¶ 7-8, 100; Dkt. No. 29: Macias Aff. ¶¶ 3, 11-12; Dkt. No. 28: Savage Aff. Ex. A: Shepherd Dep. at 37, 247.)

BCBG is a national retail corporation with eight store locations in Manhattan, including the Madison Avenue store where Shepherd was employed as a First Assistant Manager. (BCBG Rule 56.1 Stmt. ¶¶ 2, 7; Dkt. No. 30: Donahoe Aff. ¶¶ 3-4.) The Madison Avenue store had thirteen employees: three stock associates, six sales associates, three First Assistant Managers, and a General Manager. (BCBG Rule 56.1 Stmt. ¶ 20; Donahoe Aff. ¶ 5.)

First Assistant Managers at the Madison Avenue store reported to General Manager Lauren Van Dillon, who is part African American and part Caucasian. (BCBG Rule 56.1 Stmt. ¶¶ 9-10; Shepherd Dep. at 37.) Van Dillon's responsibilities included ensuring the store's compliance with company goals, hiring, scheduling, and taking disciplinary actions. (Macias Aff. Ex. T at 4: BCBG Retail Field Mgmt. Roles: General/Store Manager; Dkt. No. 37: Shepherd Opp. Br. at 1.)

Van Dillon reported to BCBG Manhattan District Manager Matthew Donahoe, who is Caucasian. (BCBG Rule 56.1 Stmt. ¶¶ 11-12; Shepherd Opp. Br. at 1; Macias Aff. ¶ 30.) Donahoe's responsibilities included overseeing sales and personnel developments at all eight Manhattan BCBG stores, and reporting performance and disciplinary issues. (Donahoe Aff. ¶¶ 4, 24; Macias Aff. Ex. T at 4: BCBG Retail Field Mgmt. Roles: Dist. Manager Role; Shepherd Opp. Br. at 1.) Van Dillon and Donahoe also held weekly management meetings, which First Assistant Managers were required to attend. (BCBG Rule 56.1 Stmt. ¶ 16; Donahoe Aff. ¶ 10.) Facts Relevant To Shepherd's Race Discrimination And Harassment Claims

Shepherd alleges she was discriminated against on the basis of her race by Van Dillon and Donahoe. (Dkt. No. 28: Savage Aff. Ex. A: Shepherd Dep. at 45-46; Dkt. No. 29: Macias Aff. ¶ 19 & Ex. G: Investigation Questionnaire at 128.)

Shepherd alleges that Van Dillon made two remarks that constitute racial discrimination: Shepherd claims that in December 2008, she was told by a stock associate that Van Dillon said Shepherd did not look "Madison Avenue," was being paid too much, was lazy, was failing at her job, and that Van Dillon said that Donahoe might want to fire Shepherd. (Dkt. No. 2: Compl. Ex.: 5/20/09 EEOC EAS Questionnaire at 2; Shepherd Dep. at 96-102, 165; Savage Aff. Ex. B: 12/16/08 Shepherd Journal Entry; Dkt. No. 27: BCBG Rule 56.1 Stmt. ¶ 28; Macias Aff. ¶ 20.) Shepherd did not confront Van Dillon about these alleged comments. (Shepherd Dep. at 101-02; BCBG Rule 56.1 Stmt. ¶ 29.)

According to Van Dillon, the phrase "Madison Avenue" was used to describe the polished and professional look of the clientele who shop at the Madison Avenue store, as compared to other BCBG stores, and was not a race-based phrase. (Macias Aff. Ex. G: Investigation Questionnaire at 133.) An African American First Assistant Manager confirmed that the phrase was not race-based. (Macias Aff. Ex. G: Investigation Questionnaire at 131.) Van Dillon believed that Shepherd was "Madison Avenue" material. (Macias Aff. Ex. G: Investigation Questionnaire at 133.)

Second, Shepherd claims that after closing the store together and while walking to the train in December 2008, Van Dillon asked Shepherd how she felt about being a black woman in New York. (Shepherd Dep. at 90-94, 166; Savage Aff. Ex. B: 12/16/08 Shepherd Journal Entry; Macias Aff. ¶ 21; BCBG Rule 56.1 Stmt. ¶¶ 30-32.) Shepherd testified that this question was asked in the context of a general conversation about Shepherd's transition from California to New York. (Shepherd Dep. at 93; BCBG Rule 56.1 Stmt. ¶ 31.) Shepherd never told Van Dillon that she was offended by this question. (Shepherd Dep. at 94, 97; BCBG Rule 56.1 Stmt. ¶ 33.)

Shepherd also identifies two allegedly discriminatory remarks by Donahoe. First, she alleges that Donahoe addressed her as "sistah" beginning in approximately September 2008. (Macias Aff. ¶ 23 & Ex. G: Investigation Questionnaire at 129; Shepherd Dep. at 46.) Shepherd states that Donahoe did not use the term with any other employees. (Macias Aff. ¶ 23 & Ex. G: Investigation Questionnaire at 129; Shepherd Dep. at 46; BCBG Rule 56.1 Stmt. ¶ 35.) Shepherd never told Donahoe that she was offended by his use of the term "sistah" and responded with a normal "hello" to his greetings. (Macias Aff. ¶ 29 & Ex. G: Investigation Questionnaire at 129; Shepherd Dep. at 62; BCBG Rule 56.1 Stmt. ¶ 36.) Donahoe denies ever using the term "sistah" to address anyone, and states that while it is possible he could have used the word "sister" on occasion, it is not part of his normal speech. (Macias Aff. ¶ 29 & Ex. G: Investigation Questionnaire at 134; BCBG Rule 56.1 Stmt. ¶ 34.)

Second, Shepherd asserts that during a management meeting in March 2009, Donahoe directed the staff to hire blonde females. (Compl. Ex.: 5/20/09 EEOC EAS Questionnaire at 2; Shepherd Dep. at 51, 166-67; Savage Aff. Ex. C: 3/24/09 Shepherd Journal Entry; Macias Aff. ¶ 22 & Ex. G: Investigation Questionnaire at 129.) Another First Assistant Manager confirmed that Donahoe made this statement. (Macias Aff. Ex. G: Investigation Questionnaire at 131.) Donahoe denied making this statement. (Donahoe Aff. ¶ 12; Macias Aff. ¶ 28 & Ex. G: Investigation Questionnaire at 134; BCBG Rule 56.1 Stmt. ¶ 37.) Two other managers reported they never heard Donahoe make the alleged statement. (Macias Aff. Ex. G: Investigation Questionnaire at 132-33.)

Donahoe describes the staff at the Madison Avenue store as "all Latino [a]nd African-American" and states the "[g]oal was to make the store [d]iverse" to cater to their female customer base. (Macias Aff. ¶ 28 & Ex. G: Investigation Questionnaire at 134.) Donahoe states that nine women were hired during his management from June 2008 through April 2010, and of those nine, two were Caucasian, and only one of those two was blonde. (Donahoe Aff. ¶ 14.) The other new hires were African American, Hispanic, and Asian American women, as well as three males. (Donahoe Aff. ¶ 8.) Events Leading Up To Shepherd's Termination

On May 11, 2009, in response to what Shepherd felt was an invasion of her privacy by Van Dillon, Shepherd sent an email to Director of Human Resources Carla Macias, stating:

Without my knowledge Lauren Van Dillon made and kept [a] copy for her personal records. . . . This private matter was to be presented to HR only. It was not a matter for my General Manager and District Manager to discuss. I am overwhelmed by the constant harassment and embarrassed by the invasion of privacy. I would like to be assured that this information or any other private matters will not be discussed with parties outside of Human Resources.

(Dkt. No. 29: Macias Aff. ¶ 17 & Ex. F: 5/11/09 Shepherd Email, emphasis added.)¹ Macias sought to discuss with Shepherd her "constant harassment" complaint. (Macias Aff. ¶ 18 & Ex. F: 5/13/09 Macias Email.)

1 On or about March 31, 2009, Shepherd requested a leave of absence from May 13, 2009 through May 21, 2009 to travel to California. (Dkt. No. 27: BCBG Rule 56.1 Stmt. ¶ 40; Macias Aff. ¶¶ 14-15; Dkt. No. 28: Savage Aff. Ex. A: Shepherd Dep. at 112.) When this request was denied, on May 9, 2009 Shepherd furnished Macias with proof of a mandatory court appearance in California on May 14, 2009 for a speeding ticket. (BCBG Rule 56.1 Stmt. ¶¶ 41-44; Macias Aff. ¶¶ 14-15; Shepherd Dep. at 112.) Macias granted Shepherd leave from May 13 through May 18, 2009 to attend her court appearance. (BCBG Rule 56.1 Stmt. ¶ 45; Macias Aff. ¶ 15; Shepherd Dep. at 116.) The document proving Shepherd's mandatory court appearance was sent via fax to BCBG's Madison Avenue store, where it was initially received by Van Dillon, who made a copy before giving it to Shepherd. (Macias Aff. ¶¶ 17, 42 & Ex. O: 6/19/09 Van Dillon Email.)

BCBG's Internal Investigation

On June 3, 2009, Macias interviewed Shepherd as part of BCBG's internal investigation into Shepherd's complaint, during which Shepherd identified Van Dillon and Donahoe as the alleged harassers, and described the same incidents of racial discrimination complained of in this action. (Dkt. No. 29: Macias Aff. ¶ 19 & Ex. G: Investigation Questionnaire at 128-30; Dkt. No. 28: Savage Aff. Ex. A: Shepherd Dep. at 45-46.)²

2 Shepherd admitted that she recorded this June 3, 2009 telephone conversation without consent from Macias. (Shepherd Dep. at 156-57.)

Van Dillon and Donahoe were interviewed about Shepherd's allegations, denied the alleged racially discriminatory conduct and complained about Shepherd's job performance. Van Dillon stated that Shepherd's job performance was suffering, including that she "doesn't respect the protocol when dealing with Corporate" and that Van Dillon received a complaint about Shepherd from another First Assistant Manager. (Macias Aff. ¶ 27 & Ex. G: Investigation Questionnaire at 133.) Van Dillon stated she had documented Shepherd's performance issues twice previously, and on both occasions Shepherd refused to sign the Performance Correction Notices. (Macias Aff. ¶ 27 & Ex. G: Investigation Questionnaire at 133.)³

3 Shepherd stated during her internal investigation interview that no previous corrective action had been issued to her. (Macias Aff. Ex. G: Investigation Questionnaire at 130.)

Donahoe described issues with Shepherd's job performance. Specifically, Donahoe stated that he hardly saw or spoke to Shepherd because of her frequent absences. (Macias Aff. Ex. G: Investigation Questionnaire at 134.) Donahoe noted that Shepherd had attended no more than five of the mandatory weekly management meetings in person. (Macias Aff. ¶ 28 & Ex. G: Investigation Questionnaire at 134.) Donahoe claimed Shepherd was the "highest paid/lowest producing" First Assistant Manager in the Madison Avenue store, was not a team player, had failed to observe protocol for making reports/requests to Corporate, had used profanity, and other managers had complained to Donahoe about Shepherd. (Macias Aff. Ex. G: Investigation Questionnaire at 134.)

Macias interviewed several other employees of the Madison Avenue store, none of whom witnessed or had been subjected to any racially discriminatory behavior. (Macias Aff. Ex. G: Investigation Questionnaire at 131-32; Dkt. No. 27: BCBG Rule 56.1 Stmt. ¶ 56.)

Macias concluded that there were "personality conflicts" between Shepherd and other Madison Avenue employees, but that no discrimination had taken place. (Macias Aff. ¶¶ 35-36.)

Disciplinary And Performance Reports Issued After Shepherd's Complaint

Van Dillon and Donahoe began documenting alleged instances of disciplinary or performance problems with Shepherd by sending regular email reports to Macias in Human Resources. Shepherd alleges that those reports were retaliatory.⁴

4 During her deposition, Shepherd testified that Van Dillon and Donahoe engaged in additional retaliatory conduct including transferring her for short-terms to other BCBG stores in Manhattan (Dkt. No. 28: Savage Aff. Ex. A: Shepherd Dep. at 55, 62, 64, 66, 67), deliberately giving her Tuesdays off so she would have to commute from Brooklyn to Manhattan to attend the weekly management meetings even though she was not scheduled to work (Shepherd Dep. at 53-54, 102-03), and refusing to grant her requests for vacation leave or days off (Shepherd Dep. at 103). However, Shepherd admits that each of these allegedly retaliatory acts began occurring well before her May 2009 complaint to Human Resources. (Shepherd Dep. at 62 (temporary assignments to other stores began two weeks into her employment), 102-03 (she was "always" scheduled off on Tuesdays and that this was among the conduct she complained of to Human Resources in May 2009), 112, 116 (her requests for time off were denied in advance of her May 2009 complaint).) As a matter of law, alleged employer acts that admittedly began prior to an employee's participation in a protected activity cannot be considered retaliatory employment actions and, therefore, these allegations by Shepherd are immaterial. Courts in this Circuit have consistently held that "[w]here timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise." Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir.), cert. denied, 534 U.S. 951, 122 S. Ct. 348 (2001); see also, e.g., Sicular v. N.Y.C. Dep't of Homeless Servs., 09 Civ. 0981, 2010 WL 423013 at *27 (S.D.N.Y. Feb. 4, 2010) (Peck, M.J.), report & rec. adopted, 2010 WL 2179962 (S.D.N.Y. May 28, 2010), aff'd, 455 F. App'x 129 (2d Cir. 2012); Stroud v. New York City, 374 F. Supp. 2d 341, 352 (S.D.N.Y. 2005); Hunter v. St. Francis Hosp., 281 F. Supp. 2d 534, 547 (E.D.N.Y. 2003).

On May 26, 2009, Van Dillon reported that Shepherd failed to appear for her scheduled shifts on May 9, 20, and 24, 2009, and failed to follow the store's protocol for notifying management of her intended absence. (Dkt. No. 27: BCBG Rule 56.1 Stmt. ¶¶ 65-66; Dkt. No. 29: Macias Aff. ¶ 40 & Ex. M: 5/26/09 Van Dillon Email; Dkt. No. 30: Donahoe Aff. ¶ 16 & Ex. A: 5/26/09 Van Dillon Email.) On May 28, 2009, Jill Harrison, another First Assistant Manager at the Madison Avenue store, emailed Donahoe complaining primarily about issues with Shepherd's attendance and punctuality. (Donahoe Aff. Ex. B: 5/28/09 Harrison Email.) According to Donahoe, Harrison asked about expressing her frustrations with Shepherd, and Donahoe directed her to put the complaints into an email. (Donahoe Aff. Ex. B: 5/30/09 Donahoe Email.)

When asked about issues with her punctuality and attendance during her deposition, Shepherd testified that her attendance issues in the first half of 2009 were the result of her health problems and her mother's declining health, which caused Shepherd to call in sick. (Shepherd Dep. at 259.)

Several days after Macias' June 16, 2009 interview of Van Dillon in connection with the internal investigation of Shepherd's complaints (Macias Aff. ¶ 25), Van Dillon sent two emails to Macias documenting alleged performance and other recent issues with Shepherd (Macias Aff. ¶¶ 42-44, Ex. O: 6/19/09 Van Dillon Email & Ex. P: 6/20/09 Van Dillon Email). First, on June 19, 2009, Van Dillon stated that Shepherd called out sick from her shifts on June 15 and 16, 2009. (Macias Aff. ¶ 42 & Ex. O: 6/19/09 Van Dillon Email.) On June 19, 2009, Shepherd sent a text message to Van Dillon requesting approval for personal time off from July 3 through July 6, 2009 to visit her terminally ill mother in California. (BCBG Rule 56.1 Stmt. ¶ 46; Macias Aff. ¶ 43 & Ex. O: 6/19/09 Van Dillon Email.) Van Dillon denied this request on the basis of the company-wide black-out policy, i.e., policy of no time off during busy periods. (BCBG Rule 56.1 Stmt. ¶ 47; Macias Aff. ¶ 43 & Ex. O: 6/19/09 Van Dillon Email.) Van Dillon informed Shepherd she was eligible for FMLA leave if she wanted to request the time off on that basis. (BCBG Rule 56.1 Stmt. ¶ 47; Macias Aff. ¶ 43 & Ex. O: 6/19/09 Van Dillon Email.) According to Van Dillon, Shepherd ignored protocol, bypassed Van Dillon and Donahoe, and made a request directly to BCBG's benefits department for FMLA leave. (Macias Aff. ¶ 43 & Ex. O: 6/19/09 Van Dillon Email.) Shepherd's FMLA request was granted for a leave of absence from June 20, 2009 through August 30, 2009. (BCBG Rule 56.1 Stmt. ¶ 48; Macias Aff. ¶ 38.)

Van Dillon also described her general reaction to Shepherd's allegations, writing to Macias that:

In the 6 yrs that I have been employees [sic] with BCBG [I] have never had 1 Human Resource issue. . . . I hope that my integrity is never jeopardized because of these accusations. I am part African American and I have never felt that anything has ever been said by any member of management be [it] in my store or from a supervisor within BCBG that was offensive or racist in any way. Never has an asst manager of mine or employee come to me with any complaints concerning race. [Shepherd] has manipulated this situation to its fullest. . . . I do not want her in the store anymore.

(Macias Aff. Ex. O: 6/19/09 Van Dillon Email, emphasis added.)

The next day, on June 20, 2009, Van Dillon emailed Macias and Donahoe documenting an incident with Shepherd that occurred that afternoon. (Macias Aff. ¶ 44 & Ex. P: 6/20/09 Van Dillon Email; Donahoe Aff. ¶ 18.) Van Dillon reported that beginning approximately fifteen minutes into Shepherd's shift, she started disappearing from her assigned areas, and was caught making personal calls in the stock room and on the sales floor in front of customers. (Macias Aff. ¶ 44 & Ex. P: 6/20/09 Van Dillon Email; Donahoe Aff. ¶ 18; BCBG Rule 56.1 Stmt. ¶ 68.) When Van Dillon addressed Shepherd's conduct, Shepherd asserted that she was going home for the day, which she did. (Macias Aff. ¶ 44 & Ex. P: 6/20/09 Van Dillon Email; Donahoe Aff. ¶ 18; BCBG Rule 56.1 Stmt. ¶ 68.) This marked the beginning of Shepherd's FMLA leave of absence, and she did not return until August 30, 2009. (BCBG Rule 56.1 Stmt. ¶ 48; Macias Aff. ¶ 38.)

Shepherd emailed Macias two days later with her version of the incident. (Dkt. No. 37: Shepherd Opp. Br. Ex. G: 6/22/09 Shepherd Email.) Shepherd stated that she received an emergency telephone call from her mother approximately thirty minutes into her shift, and went to the fourth floor of the store for privacy to take the call. (Id.) When Shepherd tried to explain the situation to Van Dillon, Van Dillon said Shepherd was being insubordinate, and that if she left for the day it would be an unexcused absence. (Id.) Van Dillon accused Shepherd of taking advantage of her FMLA situation. (Id.) Shepherd stated she was sobbing uncontrollably, was unable to breathe, and went directly to the emergency room where she was treated for a panic attack and kept overnight. (Id.) Shepherd also stated her belief that Van Dillon's conduct was in retaliation for Shepherd's complaint to Human Resources, and requested a transfer to a different store. (Id.: "Her continued inappropriate and unprofessional behavior is definitely a back lash against me for reaching out to you prior.")

On July 9, 2009, BCBG Regional Manager Sandra Owen reported an incident between Shepherd and a customer. (Macias Aff. ¶ 45 & Ex. Q: 7/9/09 Owen Email; BCBG Rule 56.1 Stmt. ¶ 84.) Owen was at another BCBG store when a customer returned a pair of shoes that she had attempted to return or exchange at the Madison Avenue store; the customer complained to Owen that Shepherd refused to process the return or exchange, had a poor attitude, was unhelpful and rude, and was unwilling to contact either a supervisor or customer service to assist. (Macias Aff. ¶ 45 & Ex. Q: 7/9/09 Owen Email; BCBG Rule 56.1 Stmt. ¶ 85.)⁵

5 In response to this allegation, Shepherd points out that she was on FMLA leave from June 20 through August 30, 2009, and this alleged incident was reported on July 9, 2009. (Shepherd Opp. Br. at 3.)

On September 2, 2009, two days after Shepherd's return from FMLA leave, Van Dillon reported that on August 31, 2009, Shepherd arrived at work with her tattoos exposed in violation of company policy requiring tattoos to be covered. (BCBG Rule 56.1 Stmt. ¶ 69; Macias Aff. ¶ 46 & Ex. R: 9/2/09 Macias Email.) Shepherd was reminded of the policy on August 31, 2009, but on September 2, 2009, Shepherd again came to work with a tattoo exposed, and also was caught using her cell phone on the sales floor. (Macias Aff. Ex. T: 9/14/12 Performance Corr. Notice.) Macias instructed Van Dillon to disregard any personality conflicts she had with Shepherd and if Shepherd was violating a policy or procedure, Van Dillon should have a performance correction conversation with Shepherd in the presence of Donahoe or Owen as a witness, the same procedure she would follow with anyone else. (Macias Aff. ¶ 46 & Ex. R: 9/2/09 Macias Email.)

Shepherd failed to attend the mandatory management meeting on September 8, 2009, which Van Dillon stated was consistent with Shepherd's pattern of failing to attend management meetings unless she was scheduled to work that day. (Macias Aff. Ex. S: 9/8/09 Van Dillon Email.) Additionally, Shepherd sent a text to tell Van Dillon she could not attend the meeting, again disregarding the protocol, of which Shepherd had been repeatedly reminded, requiring her to call in advance if she could not attend a meeting. (Macias Aff. Ex. S: 9/8/09 Van Dillon Email.) Macias instructed Van Dillon to proceed with the performance correction conversation and notice. (Macias Aff. Ex. S: 9/8/09 Macias Email.)

Shepherd was issued a performance correction notice on September 14, 2009. (Macias Aff. ¶ 47 & Ex. T: 9/14/09 Performance Corr. Notice; BCBG Rule 56.1 Stmt. ¶ 70; Donahoe Aff. ¶ 19.) The notice indicated Shepherd was verbally disciplined for four separate "Behavior/Conduct infraction" incidents: (1) her August 31, 2009 violation of company policy prohibiting employees from exposing their tattoos; (2) her violation of the same policy two days later on September 2, 2009; (3) her failure to attend the mandatory management meeting on September 8, 2009 and her general refusal to attend meetings unless she was scheduled to work that day, as well as her continued disregard of the protocol requiring that she call the store, not text an employee, if she could not attend; and (4) her use of her cell phone on the sales floor, including on September 2, 2009, in violation of BCBG policy. (Macias Aff. ¶ 47 & Ex. T: 9/14/09 Performance Corr. Notice; BCBG Rule 56.1 Stmt. ¶ 70; Donahoe Aff. ¶ 19.) The following additional statement was included after the list of infraction details in the "Incident Description" portion of the notice: Shepherd "must adhere to all policies and procedures at all times. Failure to do so may result in additional disciplinary action up to an[d] including termination." (Macias Aff. Ex. T: 9/14/09 Performance Corr. Notice.) Shepherd refused to sign the notice. (Macias Aff. ¶ 48; Donahoe Aff. ¶ 20; BCBG Rule 56.1 Stmt. ¶ 71.)⁶

6 Donahoe claims that Shepherd admitted to all of the infractions listed in the notice, except the one relating to her cell phone usage, which Shepherd claimed was not an infraction because she had an FMLA arrangement with BCBG's benefits department allowing her to use her cell phone on the sales floor. (Donahoe Aff. ¶ 20; Macias Aff. ¶ 48; BCBG Rule 56.1 Stmt. ¶¶ 72-73.) In contrast, Shepherd asserts that she refused to sign the document because the allegations were false. (Shepherd Opp. Br. at 2.)

Van Dillon made additional written complaints to Human Resources in October 2009. On October 14, 2009, Van Dillon wrote that on the nights of October 8 and 9, 2009, Shepherd was the closing manager and closed the store early, in violation of company policy. (Donahoe Aff. ¶ 21; Macias Aff. ¶ 50 & Ex. X: 10/14/09 Donahoe Email; BCBG Rule 56.1 Stmt. ¶ 76.) Shepherd denies that she ever closed the store early, explaining that she closed one of the two cash registers two minutes early, but that the second register remained open. (Shepherd Dep. at 103.)

On October 20, 2009, Van Dillon reported complaints from other employees about Shepherd, including Shepherd's continued disappearances from her assigned areas and continued use of her cell phone on the sales floor. (Donahoe Aff. ¶ 22; Macias Aff. ¶ 51 & Ex. Y: 10/20/09 Van Dillon Email; BCBG Rule 56.1 Stmt. ¶¶ 77, 86-87.)

On October 26, 2009, Van Dillon reported that despite prior warnings, Shepherd continued to use her cell phone on the sales floor. (Macias Aff. ¶ 52 & Ex. Z: 10/26/09 Van Dillon Email; BCBG Rule 56.1 Stmt. ¶ 77.) Van Dillon also stated that she caught Shepherd reviewing a celebrity photo album on the sales floor during her scheduled shift, and that after being caught, Shepherd announced she was taking her break 2 1/2 hours early without approval. (Macias Aff. ¶ 52 & Ex. Z: 10/26/09 Van Dillon Email; BCBG Rule 56.1 Stmt. ¶ 78.) According to Van Dillon, when she warned Shepherd that such misconduct would be documented, Shepherd replied that she would "consult with the Labor Board." (Macias Aff. ¶ 52 & Ex. Z: 10/26/09 Van Dillon Email.)

Van Dillon further reported that on the evening of October 23, 2009, Shepherd improperly closed the store leaving it in disarray, including failing to empty the trash cans and return merchandise to the proper location. (Macias Aff. ¶ 53 & Ex. Z: 10/26/09 Van Dillon Email; BCBG Rule 56.1 Stmt. ¶ 79.)⁷ Shepherd reportedly arrived thirty minutes late for three consecutive shifts on October 23, 24 and 25, 2009, and failed to call and inform the store that she would be late. (Macias Aff. ¶ 53 & Ex. Z: 10/26/09 Van Dillon Email; BCBG Rule 56.1 Stmt. ¶ 80.) Van Dillon addressed Shepherd's tardiness on October 25, 2009 and allegedly issued a Performance Correction Notice to her, but no such Performance Correction Notice appears in the record. (Macias Aff. ¶ 53 & Ex. Z: 10/26/09 Van Dillon Email; BCBG Rule 56.1 Stmt. ¶ 80.) During that discussion about Shepherd's tardiness, Shepherd stated that she felt harassed by Van Dillon and reiterated her intent to "talk to the Labor Board." (Macias Aff. ¶ 53 & Ex. Z: 10/26/09 Van Dillon Email.)

7 Shepherd testified that she asked Van Dillon to specify what she did wrong, but Van Dillon failed to explain the alleged misconduct, other than to say Shepherd was doing a horrible job. (Shepherd Dep. at 103.)

Van Dillon reported to Human Resources on November 9, 2009 that Shepherd called in sick for her shifts on November 7 and 8, 2009 and again failed to properly notify the store by telephone as required. (Macias Aff. ¶ 54 & Ex. AA: 11/9/09 Van Dillon Email; BCBG Rule 56.1 Stmt. ¶ 81.)

Shepherd's November 2009 Complaint To Human Resources And BCBG's "Temperature Check" Investigation

On November 17, 2009, Shepherd made a second complaint to Human Resources:

Please let me know if your [sic] available on Friday November 20th as I'd like to discuss a few incidents that have occurred since my return to Madison Ave.

Unfortunately the same harassing practices continue and they are becoming more blatant, demeaning and tedious each day. I desperately need to discuss these issues with you in full detail as soon as your time permits.

(Dkt. No. 29: Macias Aff. ¶ 55 & Ex. BB: 11/17/09 Shepherd Email; Dkt. No. 27: BCBG Rule 56.1 Stmt. ¶ 88; Dkt. No. 28: Savage Aff. Ex. A: Shepherd Dep. at 274-75.)

Macias scheduled a telephone meeting with Shepherd for November 20, 2009, but early that morning, Shepherd emailed Macias stating: "Please cancel our meeting today. I have spoke [sic] with my manager and I've decided to revisit my concerns with her first before involving Human Resources a third time." (Macias Aff. ¶ 55 & Ex. BB: 11/20/09 Shepherd Email; BCBG Rule 56.1 Stmt. ¶ 89.) Shepherd made no further complaints to Human Resources. (Macias Aff. ¶ 55; BCBG Rule 56.1 Stmt. ¶ 90.) According to Shepherd, she had a conversation with Van Dillon about making certain changes in the workplace, and Shepherd believed conditions improved following that conversation. (Shepherd Dep. at 274-75.)

Shepherd's November 17, 2009 complaint and the numerous reports to Human Resources about Shepherd's continued poor conduct triggered a "temperature check" of the Madison Avenue store. (Macias Aff. ¶ 57; BCBG Rule 56.1 Stmt. ¶¶ 91-92.) A temperature check is an informal survey of employees to detect the existence of personnel issues. (Macias Aff. ¶ 57; BCBG Rule 56.1 Stmt. ¶ 92.) BCBG Senior Human Resources Generalist Ivonne Vargas conducted the temperature check in early December 2009. (Macias Aff. ¶¶ 5, 57; BCBG Rule 56.1 Stmt. ¶ 91.)

Vargas reported the results to Macias on December 11, 2009, and although most responses were vague, some employees offered comments about specific coworkers. (Macias Aff. ¶ 58 & Ex. CC: 12/11/09 Vargas Email.) Vargas reported the following complaint from a stock associate about Shepherd:

He then said that [Shepherd] is lazy, not motivating and she just goes with the flow, she is lackadaisical, she is often behind the cash wrap and is late very often. When she is late they all have to wait outside for her and when she gets there she's never apologetic even though they waited for her for thirty min to an hour. She is nonchalant about it because she figures at least the store opened on time but they still have to do the opening procedures.

(Macias Aff. ¶ 58 & Ex. CC: 12/11/09 Vargas Email; BCBG Rule 56.1 Stmt. ¶ 93.)⁸

8 During her deposition Shepherd recalled at least one occasion on or around November 29, 2009 where she arrived late and the staff were waiting outside for her. (Shepherd Dep. at 275.)

After reviewing these results, Macias concluded that Shepherd's performance issues had not improved and that she continued to be a difficult employee. (Macias Aff. ¶ 59.) On December 16, 2009, Human Resources received one final complaint about Shepherd from another First Assistant Manager, Sara Derr. (Macias Aff. ¶ 60 & Ex. DD: 12/16/09 Vargas Email.) Derr complained that Shepherd was lazy, lackadaisical, regularly late for her shifts and often missing from her assigned areas on the sales floor. (Macias Aff. ¶ 60 & Ex. DD: 12/16/09 Vargas Email.) According to Macias, this reinforced her conclusions following the temperature check that Shepherd's behavior remained unchanged despite all prior warnings and discussions. (Macias Aff. ¶ 61.) Shepherd's Termination

Macias sought and on December 17, 2009 received authority from BCBG's Legal Department to offer Shepherd a two-week severance package to voluntarily resign. (Dkt. No. 29: Macias Aff. ¶ 62.) Macias made the offer to Shepherd during a confidential telephone conversation on December 17, 2009, and granted her a vacation day to consider the offer. (Macias Aff. ¶ 62.) The following day, December 18, 2009, Shepherd rejected the severance offer and declined to resign. (Macias Aff. ¶ 65 & Ex. GG: 12/18/09 Shepherd Email; Dkt. No. 27: BCBG Rule 56.1 Stmt. ¶ 99; Dkt. No. 28: Savage Aff. Ex. A: Shepherd Dep. at 277.)

That same morning, Macias learned that Shepherd breached the confidentiality of their conversation regarding the severance offer by disclosing to Van Dillon that Macias and Shepherd had spoken. (Macias Aff. ¶ 63 & Ex. EE: 12/18/09 Van Dillon Email.)⁹ In addition, Macias was informed that Shepherd had sent a text message to Van Dillon saying: "As you know I had a meeting with Carla Macias today. I have told you before I am a child of the highest power GOD and any weapon formed against me shall not prosper. Only the strong survive." (Macias Aff. ¶ 64 & Ex. FF: 12/18/09 Van Dillon Email.)

9 Although BCBG contends Shepherd disclosed the contents of her confidential discussion with Macias about the severance offer (Macias Aff. ¶ 63; Dkt. No. 30: Donahoe Aff. ¶ 24; BCBG Rule 56.1 Stmt. ¶ 97), the document attached in support of this contention shows only that Shepherd disclosed the fact that she had a scheduled discussion with Macias, but not necessarily the contents thereof (Macias Aff. Ex. EE: 12/18/09 Van Dillon Email).

According to Macias, this breach of confidentiality and Shepherd's text message were the final acts of misconduct that BCBG would tolerate. (Macias Aff. ¶ 66.) Macias discussed the circumstances with BCBG's Legal Department and with Regional Manager Sandra Owen, and Macias and Owen made the final decision to terminate Shepherd. (Macias Aff. ¶ 66; Donahoe Aff. ¶ 24; BCBG Rule 56.1 Stmt. ¶ 100.) Van Dillon and Donahoe were not consulted regarding the final decision to terminate Shepherd, but they were notified once the decision was made because company policy required one of them to witness the termination conversation, which Donahoe did. (Macias Aff. ¶ 67; Donahoe Aff. ¶ 24; BCBG Rule 56.1 Stmt. ¶¶ 102-03, 105.) Macias' stated reasons for Shepherd's termination were her repeated violations of company policies and procedures, her coworkers' numerous complaints about her behavior, and her breach of the confidentiality of the severance discussion. (Macias Aff. ¶ 68 & Ex. HH: 12/18/09 Macias Email; Donahoe Aff. ¶ 24.) Comparator: Sara Derr

Sara Derr was a Caucasian First Assistant Manager at BCBG's Madison Avenue store in 2009. (Dkt. No. 29: Macias Aff. Ex. H: BCBG Madison Ave. Empl. List; Dkt. No. 28: Savage Aff. Ex. A: Shepherd Dep. at 70.)

A supervisor at BCBG's Flatiron store issued a Performance Correction Notice to Derr on April 6, 2009 for unsatisfactory sales performance, stating that Derr failed to meet her "personal standard goal" for the month of March and only met her weekly goal one out of the previous five weeks. (Savage Aff. Ex. F: 4/6/09 Performance Corr. Notice.) Derr received another Performance Correction Notice on May 4, 2009, also from a supervisor at BCBG's Flatiron store, for policy and procedure violations relating to loss prevention and register shortages, unsatisfactory communication performance, and time and attendance issues. (Savage Aff. Ex. F: 5/4/09 Performance Corr. Notice.)

During her deposition, Shepherd testified she was a "better" employee than Derr. (Shepherd Dep. at 70.) Shepherd asserts that Derr's infractions were "more severe" than Shepherd's. (Dkt. No. 37: Shepherd Opp. Br. at 3.) Derr was promoted to a General Manager in one of BCBG's downtown locations. (Shepherd Opp. Br. at 3; Dkt. No. 38: BCBG Reply Br. at 7.) Shepherd's EEOC Charge Of Discrimination

Shepherd filled out an EEOC questionnaire in May 2009, complaining of the same acts of race discrimination alleged in this action. (Dkt. No. 27: BCBG Rule 56.1 Stmt. ¶ 49; Dkt. No. 29: Macias Aff. Ex. E: 7/26/11 EEOC Letter; Dkt. No. 2: Compl. Ex.: 5/20/09 EEOC EAS Questionnaire; Dkt. No. 28: Savage Aff. Ex. A: Shepherd Dep. at 223-24.) The acts of retaliation alleged in this action occurred after May 2009 (see pages 7-14 above), and therefore could not have been referred to in Shepherd's May 2009 EEOC EAS Questionnaire.

On May 3, 2011, Shepherd sent a letter to the EEOC requesting a Notice of Right to Sue based on her May 2009 charge of discrimination. (See Compl. Ex.: 8/2/11 EEOC Cover Letter.)¹⁰ A formal Charge of Discrimination form was not completed at the time Shepherd originally made her complaint to the EEOC in May 2009, and was only completed after Shepherd requested a Notice of Right to Sue in May 2011; the Charge of Discrimination form was executed and dated by Shepherd on June 27, 2011. (Macias Aff. Ex. E: 6/27/11 Charge of Discrimination.)

10 Shepherd testified during her deposition that she never filed a supplemental EEOC EAS questionnaire after May 2009. (Shepherd Dep. at 224.)

The June 2011 Charge of Discrimination form contains the same allegations of race discrimination complained of in the May 2009 EEOC EAS Questionnaire and in this action. (Compl. Ex.: 5/20/09 EEOC EAS Questionnaire; Macias Aff. Ex. E: 6/27/11 Charge of Discrimination.) The June 27, 2011 Charge of Discrimination form contains the additional fact that BCBG terminated Shepherd on December 17, 2009, "allegedly because it wasn't working out," but that Shepherd "believe[d] that [she is] a victim of discrimination based on [her] race." (Macias Aff. Ex. E: 6/27/11 Charge of Discrimination.) In the section of the Charge of Discrimination form labeled "Discrimination Based On," Shepherd checked the "Race" box, but did not check the "Retaliation" box. (Macias Aff. Ex. E: 6/27/11 Charge of Discrimination.)

On July 26, 2011, the EEOC served a Notice of Charge of Discrimination on BCBG, attaching a copy of the June 27, 2011 Charge of Discrimination form, and explained that the charge was originally received in May 2009, but was not processed or served due to EEOC error. (Macias Aff. Ex. E: 7/26/11 EEOC Letter.) According to BCBG, the July 26, 2011 EEOC letter was its first notice of Shepherd's EEOC charge of discrimination. (BCBG Rule 56.1 Stmt. ¶ 52; Macias Aff. ¶ 16.) On August 2, 2011, Shepherd received the EEOC Notice of Right to Sue form. (Compl. Ex.: 8/2/11 EEOC Letter.)

ANALYSIS

I. SUMMARY JUDGMENT STANDARD

A. The General Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure provides that the "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Lang v. Ret. Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).

The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S. Ct. at 2552-53.

To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986). Instead, the non-moving party must "cit[e] to particular parts of materials in the record" to show that "a fact . . . is generally disputed." Fed. R. Civ. P. 56(c); see, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S. Ct. at 1356; Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (At summary judgment, "[t]he time has come . . . 'to put up or shut up.'" (citations omitted)), cert. denied, 540 U.S. 811, 124 S. Ct. 53 (2003).

In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S. Ct. at 2513.¹¹ The Court draws all inferences in favor of the non-moving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S. Ct. 489 (1987). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 37.

11 See also, e.g., Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 36; Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d at 1223.

In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S. Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S. Ct. at 2510 (citations omitted); see also, e.g., Knight v. U.S. Fire Ins. Co., 804 F.2d at 11-12.

"The Court recognizes that it must extend extra consideration to pro se plaintiffs" and that "pro se parties are to be given special latitude on summary judgment motions." Salahuddin v. Coughlin, 999 F. Supp. 526, 535 (S.D.N.Y. 1998) (Peck, M.J.) (citations & internal quotations omitted); see, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be read liberally and interpreted "'to raise the strongest arguments that they suggest'").¹² "Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, 93 Civ. 5981, 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing cases).¹³

12 See also, e.g., Ferran v. Town of Nassau, 471 F.3d 363, 369 (2d Cir. 2006); Fuller v. Armstrong, 204 F. App'x 987, 988 (2d Cir. 2006), cert. denied, 552 U.S. 906, 128 S. Ct. 209 (2007); Gildor v. U.S. Postal Serv., 179 F. App'x 756, 758 (2d Cir. 2006); Porter v. Coughlin, 421 F.3d 141, 144 n.2 (2d Cir. 2005); Hemphill v. New York, 380 F.3d 680, 687 (2d Cir. 2004); Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003); Johnson v. Buffalo Police Dep't, 46 F. App'x 11, 12 (2d Cir. 2002), cert. denied, 539 U.S. 959, 123 S. Ct. 2645 (2003).

13 See also, e.g., United States v. Acomb, No. 99-6308, 216 F.3d 1073 (table), 2000 WL 899482 at *1 (2d Cir. June 29, 2000); James v. Phillips, 05 Civ. 1539, 2008 WL 1700125 at *3 (S.D.N.Y. Apr. 9, 2008); Thompson v. Tracy, 00 Civ. 8360, 2008 WL 190449 at *5 (S.D.N.Y. Jan. 17, 2008); Bunting v. Nagy, 452 F. Supp. 2d 447, 454 (S.D.N.Y. 2006); Rodriguez v. McClenning, 399 F. Supp. 2d 228, 234 & n.52 (S.D.N.Y. 2005); Pack v. Artuz, 348 F. Supp. 2d 63, 78 (S.D.N.Y. 2004); Rector v. Sylvania, 285 F. Supp. 2d 349, 353 (S.D.N.Y. 2003); Walker v. Vaughan, 216 F. Supp. 2d 290, 296-97 (S.D.N.Y. 2002); Hussein v. The Waldorf-Astoria, 134 F. Supp. 2d 591, 596 (S.D.N.Y. 2001), aff'd, 31 F. App'x 740 (2d Cir. 2002).

B. Additional Summary Judgment Standards In Employment Discrimination Cases

When a case turns on the intent of one party, as employment discrimination and retaliation claims often do, a "trial court must be cautious about granting summary judgment." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994).¹⁴ Because the employer rarely leaves direct evidence of its discriminatory or retaliatory intent, the Court must carefully comb the available evidence in search of circumstantial proof to undercut the employer's explanations for its actions. E.g., Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d at 1224. "[S]ummary judgment may not be granted simply because the court believes that the plaintiff will be unable to meet his or her burden of persuasion at trial. There must either be a lack of evidence in support of the plaintiff's position or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error." Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998) (citations omitted). Nonetheless, when an employer provides convincing evidence to explain its conduct and the plaintiff's argument consists of purely conclusory allegations of discrimination or retaliation, the Court may conclude that no material issue of fact exists and it may grant summary judgment to the employer. E.g., Budde v. H&K Distrib. Co., No. 99-9449, 216 F.3d 1071 (table), 2000 WL 900204 at *1 (2d Cir. June 29, 2000); Stern v. Trs. of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Meloff v. N.Y. Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995).

14 Accord, e.g., Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004); Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("[I]n an employment discrimination case when, as here, the employer's intent is at issue, the trial court must be especially cautious about granting summary judgment."); McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997) ("[C]aution must be exercised in granting summary judgment where motive is genuinely in issue."); Cardoza v. Healthfirst, Inc., 210 F. Supp. 2d 224, 227 (S.D.N.Y. 1999); see also, e.g., Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 40 (2d Cir. 1994).

In other words, 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." Stern v. Trs. of Columbia Univ., 131 F.3d at 312; see, e.g., Schnabel v. Abramson, 232 F.3d 83, 90-91 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) ("[T]he question [on summary judgment is] . . . whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, it is not enough to disbelieve the employer; the factfinder must also believe the plaintiff's explanation of intentional discrimination." (quotations & alterations omitted)), cert. denied, 540 U.S. 811, 124 S. Ct. 53 (2003); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (plaintiff must "produce not simply 'some' evidence, but 'sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely than not [discrimination] was the real reason for the discharge'").¹⁵ Indeed, the Second Circuit "went out of [its] way to remind district courts that the 'impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable.'" Weinstock v. Columbia Univ., 224 F.3d at 41.

15 See also, e.g., Budde v. H&K Distrib. Co., 2000 WL 900204 at *1; Scaria v. Rubin, 94 Civ. 3333, 1996 WL 389250 at *5 (S.D.N.Y. July 11, 1996) (Peck, M.J.), aff'd, 117 F.3d 652 (2d Cir. 1997).

II. GOVERNING LEGAL STANDARD FOR TITLE VII CASES

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating 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).

In connection with discrimination claims under Title VII, the Second Circuit applies the burden-shifting analysis established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973).¹⁶ See, e.g., Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012); Desir v. City of N.Y., 453 F. App'x 30, 33 (2d Cir. 2011); Leibowitz v. Cornell Univ., 584 F.3d at 498.

16 Employment discrimination claims brought under the NYSHRL and the NYCHRL also are analyzed using the McDonnell Douglas analysis. E.g., Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010) ("This Court has determined that a plaintiff's discrimination claims under both the NYSHRL and the NYCHRL are subject to the burden-shifting analysis applied to discrimination claims under Title VII."); Leibowitz v. Cornell Univ., 584 F.3d 487, 498 n.1 (2d Cir. 2009) ("[D]iscrimination claims brought pursuant to the NYSHRL, and the NYCHRL are analyzed under the Title VII framework."); Fall v. N.Y.S. United Teachers, 289 F. App'x 419, 422 (2d Cir. 2008) ("The McDonnell Douglas burden-shifting analysis 'is also applicable to [the plaintiff's] claims under the NYSHRL.'"); John v. Dep't of Info. Tech. & Telecomm., 06 Civ. 13119, 2008 WL 4694596 at *3 (S.D.N.Y. Oct. 23, 2008) (McDonnell Douglas analysis applies to NYSHRL and NYCHRL claims.); Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305 n.3, 786 N.Y.S.2d 382, 391 n.3 (2004) ("The standards for recovery under the New York State Human Rights Law are the same as the federal standards under [T]itle VII of the Civil Rights Act of 1964. Thus, '[b]ecause both the Human Rights Law and [T]itle VII address the same type of discrimination, afford victims similar forms of redress, are textually similar and ultimately employ the same standards of recovery, federal case law in this area also proves helpful to the resolution of this appeal.' Further, the human rights provisions of the New York City Administrative Code mirror the provisions of the [New York State] Executive Law and should therefore be analyzed according to the same standards." (citations omitted)).
However, the NYCHRL is to be more liberally construed. E.g., Adams v. City of N.Y., 837 F. Supp. 2d 108, 127 (E.D.N.Y. 2011); Bennett v. Health Mgmt. Sys., Inc., 92 A.D.3d 29, 34, 936 N.Y.S.2d 112, 116 (1st Dep't 2011), appeal denied, 18 N.Y.3d 811, 945 N.Y.S.2d 645 (2012); Williams v. N.Y.C. Hous. Auth., 61 A.D.3d 62, 75, 872 N.Y.S.2d 27, 37-38 (1st Dep't), appeal denied, 13 N.Y.3d 702, 885 N.Y.S.2d 716 (2009); see also, e.g., Albunio v. City of N.Y., 16 N.Y.3d 472, 477-78, 922 N.Y.S.2d 244, 246 (2011) ("In answering this question, we must be guided by the Local Civil Rights Restoration Act of 2005 (LCRRA), enacted by the City Council 'to clarify the scope of New York City's Human Rights Law,' which, the Council found 'has been construed too narrowly to ensure protection of the civil rights of all persons covered by the law.' The LCRRA, among other things, amended Administrative Code § 8-130 to read: 'The provisions of this title . . . shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed.' The application of the LCRRA provision to this case is clear: we must construe Administrative Code § 8-107(7), like other provisions of the City's Human Rights Law, broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible." (citation omitted)); Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 112, 946 N.Y.S.2d 27, 30 (1st Dep't 2012) (NYCHRL was amended by LCRRA "to clarify, among other things, that it should be construed, regardless of the construction given to comparable federal and state statutes, 'broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.'"); Hanna v. N.Y. Hotel Trades Council, 18 Misc. 3d 436, 438 n.1, 851 N.Y.S.2d 818, 822 n.1 (Sup. Ct. N.Y. Co. 2007) ("NYCHRL is to be liberally and independently construed with the aim of making it more protective than its federal . . . or state . . . counterparts."). As I previously explained: "As this Court has pointed out several times, while the cases . . . employ the same federal analysis to NYCHRL claims, the legislative history of the NYCHRL makes clear that it is to be even more liberally construed than the federal and state anti-discrimination laws." Viruet v. Citizen Advice Bureau, 01 Civ. 4594, 2002 WL 1880731 at *14 n.28 (S.D.N.Y. Aug. 15, 2002) (Peck, M.J.) (quotations omitted; citing cases); Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009); see also, e.g., Williams v. Mount Sinai Med. Ctr., 11 Civ. 5425, --- F. Supp. 2d ----, 2012 WL 1628105 at *9 n.7 (S.D.N.Y. May 8, 2012) (Peck, M.J.) (citing cases); see generally Craig Gurian, A Return to Eyes on the Prize: Litigating Under the Restored New York City Human Rights Law, 33 Fordham Urb. L.J. 255 (2006). Because the parties in this case have not argued for a different result under the NYCHRL than the NYSHRL or Title VII, and because there is insufficient evidence to support even a minimal inference of discrimination (see below), the Court will not pursue the issue any further in this case.

Under the familiar McDonnell Douglas burden-shifting analysis, the plaintiff has the burden at the outset of "proving by the preponderance of the evidence a prima facie case of discrimination." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093 (1981); see, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 2106 (2000); McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 93 S. Ct. at 1824.¹⁷ Establishment of a prima facie case "'in effect creates a presumption that the employer unlawfully discriminated against the employee.'" St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 506, 113 S. Ct. at 2747 (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 254, 101 S. Ct. at 1094).¹⁸

17 See also, e.g., Raytheon Co. v. Hernandez, 540 U.S. 44, 50 n.3, 124 S. Ct. 513, 517 n.3 (2003); O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 310, 116 S. Ct. 1307, 1309 (1996); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S. Ct. 2742, 2746-47 (1993); Ruszkowski v. Kaleida Health Sys., 422 F. App'x 58, 60 (2d Cir. 2011); United States v. Brennan, 650 F.3d 65, 93 (2d Cir. 2011); Leibowitz v. Cornell Univ., 584 F.3d at 498; Dorfman v. Doar Commc'ns, Inc., 314 F. App'x 389, 390 (2d Cir. 2009); DeSalvo v. Volhard, 312 F. App'x 394, 396 (2d Cir.), cert. denied, 130 S. Ct. 70 (2009); Fall v. N.Y.S. United Teachers, 289 F. App'x at 420-21; Nader v. ABC Television, Inc., 150 F. App'x 54, 55 (2d Cir. 2005); Mandell v. Cnty. of Suffolk, 316 F.3d 368, 377-78 (2d Cir. 2003); Mario v. P&C Food Mkts., Inc., 313 F.3d 758, 767 (2d Cir. 2002); Collins v. N.Y.C. Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002); Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).

18 See also, e.g., Crawford v. Dep't of Investigation, 324 F. App'x 139, 141 (2d Cir. 2009); Smith v. New Venture Gear, Inc., 319 F. App'x 52, 54 (2d Cir. 2009); Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir. 2006), cert. denied, 549 U.S. 1282, 127 S. Ct. 1855 (2007); Mandell v. Cnty. of Suffolk, 316 F.3d at 380; Mario v. P&C Food Mkts., Inc., 313 F.3d at 767; Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997).

Once a plaintiff claiming employment discrimination establishes a prima facie case, the burden shifts to the defendant to rebut the presumption of discrimination by articulating a legitimate, non-discriminatory reason for its employment decision. E.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 142-43, 120 S. Ct. at 2106; McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 93 S. Ct. at 1824.¹⁹ The burden on the defendant at this phase is one of production rather than persuasion. E.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 142, 120 S. Ct. at 2106.²⁰

19 See also, e.g., Raytheon Co. v. Hernandez, 540 U.S. at 50 n.3, 124 S. Ct. at 517 n.3; O'Connor v. Consol. Coin Caterers Corp., 517 U.S. at 310, 116 S. Ct. at 1309; St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 506-07, 113 S. Ct. at 2747; Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 253-54, 101 S. Ct. at 1093-94; Desir v. City of N.Y., 453 F. App'x at 33-34; United States v. Brennan, 650 F.3d at 93; Leibowitz v. Cornell Univ., 584 F.3d at 498-99; Dorfman v. Doar Commc'ns, Inc., 314 F. App'x at 390; DeSalvo v. Volhard, 312 F. App'x at 396; Fall v. N.Y.S. United Teachers, 289 F. App'x at 421; Nader v. ABC Television, Inc., 150 F. App'x at 55; Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004); Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003); Mandell v. Cnty. of Suffolk, 316 F.3d at 380; Mario v. P&C Food Mkts., Inc., 313 F.3d at 767; Schnabel v. Abramson, 232 F.3d at 88; Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000), cert. denied, 540 U.S. 811, 124 S. Ct. 53 (2003); Stern v. Trs. of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Scaria v. Rubin, 117 F.3d at 654; Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 38.

20 See also, e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 507, 113 S. Ct. at 2747; Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 257, 101 S. Ct. at 1096; Terry v. Ashcroft, 336 F.3d at 144 n.17; Scaria v. Rubin, 117 F.3d at 654.

"Although intermediate evidentiary burdens shift back and forth under [the McDonnell Douglas] framework, '[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.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 143, 120 S. Ct. at 2106.

If the defendant articulates a non-discriminatory reason, the McDonnell Douglas burden-shifting framework drops out of the picture, and the plaintiff must show that the adverse employment decision more likely than not was motivated in whole or part by discriminatory reasons. E.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 142-43, 120 S. Ct. at 2106.²¹ "Moreover, although the presumption of discrimination 'drops out of the picture' once the defendant meets its burden of production, . . . the trier of fact may still consider the evidence establishing the plaintiff's prima facie case 'and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 143, 120 S. Ct. at 2106 (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 255 n.10, 101 S. Ct. at 1095 n.10).

21 See also, e.g., Raytheon Co. v. Hernandez, 540 U.S. at 50 n.3, 124 S. Ct. at 517 n.3; St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 510, 113 S. Ct. at 2749; Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 253, 101 S. Ct. at 1093-94; Allen v. Murray-Lazarus, 463 F. App'x 14, 16 (2d Cir. 2012); Desir v. City of N.Y., 453 F. App'x at 34; United States v. Brennan, 650 F.3d at 93; Leibowitz v. Cornell Univ., 584 F.3d at 499; DeSalvo v. Volhard, 312 F. App'x at 396; Fall v. N.Y.S. United Teachers, 289 F. App'x at 421; Feingold v. New York, 366 F.3d at 152; Mandell v. Cnty. of Suffolk, 316 F.3d at 380-81; Mario v. P&C Food Mkts., Inc., 313 F.3d at 767; Weinstock v. Columbia Univ., 224 F.3d at 42; Scaria v. Rubin, 117 F.3d at 654.

The Supreme Court in 2000 clarified the standard at this stage of the McDonnell Douglas analysis:

[I]n St. Mary's Honor Center . . . . we held that the factfinder's rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff. The ultimate question is whether the employer intentionally discriminated, and proof that "the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the
plaintiff's proffered reason . . . is correct." In other words, "[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination."

In reaching this conclusion, however, we reasoned that it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation. . . .

Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.

This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. To hold otherwise would be effectively to insulate an entire category of employment discrimination cases from review under Rule 50 [or Rule 56], and we have reiterated that trial courts should not "'treat discrimination differently from other ultimate questions of fact.'"

Whether judgment as a matter of law [or summary judgment] is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 146-49, 120 S. Ct. at 2108-09 (emphasis added & citations omitted).

After Reeves, the Second Circuit has made clear that merely proving a prima facie case and disproving the employer's explanation for its conduct at the third step of the McDonnell Douglas analysis will not preclude summary judgment in all cases; rather, a case-by-case analysis is necessary:

In examining the impact of Reeves on our precedents, we conclude that Reeves prevents courts from imposing a per se rule requiring in all instances that a [Title VII] claimant offer more than a prima facie case and evidence of pretext. . . . But the converse is not true; following Reeves, we decline to hold that no [Title VII] defendant may succeed on a summary judgment motion so long as the plaintiff has established a prima facie case and presented evidence of pretext. Rather, we hold that the Supreme Court's decision in Reeves clearly mandates a case-by-case approach, with a court examining the entire record to determine whether the plaintiff could satisfy his "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff."

Schnabel v. Abramson, 232 F.3d at 90 (emphasis added).²²

22 See also, e.g., Braun v. Securitas Sec. Servs. USA, Inc., 372 F. App'x 113, 114 (2d Cir. 2010); Butts v. N.Y.C. Dep't of Hous. Pres. & Dev., 307 F. App'x 596, 599 (2d Cir. 2009); Cross v. N.Y.C. Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005); Feingold v. New York, 366 F.3d at 152; Roge v. NYP Holdings, Inc., 257 F.3d 164, 167-68 (2d Cir. 2001); Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 469-70 (2d Cir.), cert. denied, 534 U.S. 993, 122 S. Ct. 460 (2001); James v. N.Y. Racing Ass'n, 233 F.3d 149, 156-57 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d at 42 ("In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination."); Aksamit v. 772 Park Ave. Corp., 00 Civ. 5520, 2003 WL 22283813 at *6 (S.D.N.Y. Oct. 2, 2003) ("[A] plaintiff's establishment of a prima facie case and rebuttal of a nondiscriminatory reason for the adverse action do not save the plaintiff from summary judgment when there is insufficient evidence of discrimination."), aff'd, 128 F. App'x 204 (2d Cir. 2005); Weiser v. Forest Pharm., Inc., 99 Civ. 1809, 2001 WL 293951 at *7-8 (S.D.N.Y. Mar. 26, 2001); Tanay v. Saint Barnabas Hosp., 99 Civ. 9215, 2001 WL 262695 at *4 (S.D.N.Y. Mar. 15, 2001); Connell v. Consol. Edison Co., 109 F. Supp. 2d 202, 207-08 (S.D.N.Y. 2000) (Chin, D.J.) ("The key is whether there is sufficient evidence in the record - whether it consists of just the prima facie case and proof of pretext alone or those items together with additional evidence - to support an inference of discrimination.").

III. BCBG'S SUMMARY JUDGMENT MOTION SHOULD BE GRANTED AS TO SHEPHERD'S RACE DISCRIMINATION CLAIMS

A. Shepherd's Allegations Fail To Establish A Prima Facie Case Of Discrimination

It is well settled that a plaintiff asserting a claim under Title VII must first establish a prima facie case of discrimination. (See cases cited at page 27 above.) A Title VII plaintiff meets that burden by showing that: (1) she was within a protected group, (2) she was qualified for the functions of her position, (3) she suffered an adverse employment action, and (4) the action took place under circumstances giving rise to an inference of discrimination. See, e.g., Brown v. Syracuse, 673 F.3d 141, 150 (2d Cir. 2012); Lore v. Syracuse, 670 F.3d 127, 169 (2d Cir. 2012); Ruszkowski v. Kaleida Health Sys., 422 F. App'x 58, 60 (2d Cir. 2011); United States v. Brennan, 650 F.3d 65, 93 (2d Cir. 2011).²³ "The burden of establishing a prima facie case is not onerous, and has been frequently described as minimal." Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997); accord, e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S. Ct. 2742, 2746-47 (1993).²⁴

23 See also, e.g., Leibowitz v. Cornell Univ., 584 F.3d 487, 498 (2d Cir. 2009); Crawford v. Dep't of Investigation, 324 F. App'x 139, 141 (2d Cir. 2009); Danzy v. Chao, 177 F. App'x 133, 134 (2d Cir. 2006); Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001); Hollander v. Am. Cynamid Co., 172 F.3d 192, 199 (2d Cir.), cert. denied, 528 U.S. 965, 120 S. Ct. 399 (1999).

24 See also, e.g., Broich v. Inc. Vill. of Southampton, 462 F. App'x 39, 43 (2d Cir. 2012); Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008); Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000), cert. denied, 540 U.S. 811, 124 S. Ct. 53 (2003); Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998); Raskin v. Wyatt Co., 125 F.3d 55, 64 (2d Cir. 1997); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 32 (2d Cir. 1994); Fisher v. Vassar Coll., 114 F.3d 1332, 1335 (2d Cir. 1997), cert. denied, 522 U.S. 1075, 118 S. Ct. 851 (1998); Williams v. N.Y.C. Dep't of Sanitation, 00 Civ. 7371, 2001 WL 1154627 at *16 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.); Gonzalez v. N.Y.C. Transit Auth., 00 Civ. 4293, 2001 WL 492448 at *13 (S.D.N.Y. May 9, 2001) (Peck, M.J.); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at *16 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.), aff'd, 23 F. App'x 82 (2d Cir. 2001); Weber v. Parfums Givenchy, Inc., 49 F. Supp. 2d 343, 357 (S.D.N.Y. 1999) (Wood, D.J. & Peck, M.J.).

For purposes of this motion, BCBG concedes that Shepherd satisfies the first three prongs of the McDonnell Douglas analysis for her discriminatory termination claim. (Dkt. No. 26: BCBG Br. at 4.) However, Shepherd fails to establish that her termination took place under circumstances giving rise to an inference of discrimination.

As evidence of discriminatory animus in support of the fourth element, Shepherd offers four alleged remarks: (1) Van Dillon's December 2008 question to her about being a black woman in New York, (2) Shepherd's claim that in December 2008, Van Dillon told a stock associate that Shepherd did not look "Madison Avenue" and was lazy, (3) Donahoe's use of the term "sistah" to greet Shepherd, and (4) Donahoe's March 2009 management meeting comment about hiring more blonde females. (See pages 2-5 above.) Taken together, these allegations are insufficient to create an inference that Shepherd's December 2009 termination was motivated by discrimination.

First, Shepherd admitted that Van Dillon's question about Shepherd being a black woman in New York was in the context of a casual conversation about Shepherd's transition to New York, that Shepherd answered the question, and that she never told Van Dillon or anyone else that she found the question offensive. (See page 3 above.) Shepherd's own testimony about the context of this question largely precludes any interpretation of it as discriminatory. See, e.g., Sicular v. N.Y.C. Dep't of Homeless Servs., 09 Civ. 0981, 2010 WL 423013 at *20 (S.D.N.Y. Feb. 4, 2010) (Peck, M.J.) (plaintiff's own testimony established that alleged discriminatory remarks were not actionable where plaintiff "concede[d] that he felt the remarks were not malicious, he responded by making jokes, and the remarks did not affect his work environment"), report & rec. adopted, 2010 WL 2179962 (S.D.N.Y. May 28, 2010), aff'd, 455 F. App'x 129 (2d Cir. 2012); O'Neill-Marino v. Omni Hotels Mgmt. Corp., 99 Civ. 3793, 2001 WL 210360 at *7 (S.D.N.Y. Mar. 2, 2001) (plaintiff's "attempt[] to cast a sinister light" on comments by "pull[ing] out several soundbytes to suit her purposes" was insufficient to establish discriminatory intent where comments were unconnected to the eventual adverse employment action, and, "when those statements are viewed in context, one cannot reasonably conclude" that defendant was attempting to discriminate).

Moreover, Van Dillon herself is part African American (see page 2 above), which further disproves Shepherd's claim that the question was discriminatory. See, e.g., Baguer v. Spanish Broad. Sys., Inc., 04 Civ. 8393, 2010 WL 2813632 at *11 (S.D.N.Y. July 12, 2010) (Sullivan, D.J.) ("Courts draw an inference against discrimination where the person taking the adverse action is in the same protected class as the [a]ffected employee."), aff'd, 423 F. App'x 102 (2d Cir. 2011); Walder v. White Plains Bd. of Educ., 738 F. Supp. 2d 483, 501 (S.D.N.Y. 2010) (Peck, M.J.) ("Any inference of sex discrimination is further undermined by the fact that . . . the supervisor who allegedly discriminated against [plaintiff] as to the terms of her duties, is a woman.").²⁵

25 See also, e.g., Eder v. City of N.Y., 06 Civ. 13013, 2009 WL 362706 at *8 (S.D.N.Y. Feb. 12, 2009) (Plaintiff's "immediate supervisor who assessed Plaintiff's performance and determined that it was lacking, are members of the same protected class. Thus, any inference of discrimination, without additional evidence, is not warranted."); Tucker v. New York City, 05 Civ. 2804, 2008 WL 4450271 at *5 (S.D.N.Y. Sep. 30, 2008) ("[A]ny inference of race discrimination is further undermined by the fact that all three superintendents under whom [plaintiff] worked as well as three of his four direct supervisors at the DOE were also African-American."), aff'd, 376 F. App'x 100 (2d Cir. 2010); Fosen v. N.Y. Times, 03 Civ. 3785, 2006 WL 2927611 at *5 (S.D.N.Y. Oct. 11, 2006) ("Any inference of discrimination was also critically undermined by the fact that the supervisors responsible for Plaintiff's termination" were part of the same protected class as plaintiff.); Morris v. N.Y.C. Dep't of Sanitation, 99 Civ. 4376, 2003 WL 1739009 at *7 (S.D.N.Y. Apr. 2, 2003) ("Where all decision-makers are members of a plaintiff's protected class, courts have found an inference against discriminatory intent."); Marlow v. Office of Ct. Admin., 820 F. Supp. 753, 757 (S.D.N.Y. 1993), aff'd, 22 F.3d 1091 (2d Cir.), cert. denied, 513 U.S. 897, 115 S. Ct. 252 (1994); Toliver v. Cmty. Action Comm'n to Help the Econ., Inc., 613 F. Supp. 1070, 1074 (S.D.N.Y. 1985), aff'd, 800 F.2d 1128 (2d Cir.), cert. denied, 479 U.S. 863, 107 S. Ct. 217 (1986).

Finally, the comment occurred a year before Shepherd's termination, and thus fails to show that her termination was the result of discriminatory animus. Woodard v. TWC Media Solutions, Inc., 09 Civ. 3000, 2011 WL 70386 at *7 (S.D.N.Y. Jan. 4, 2011) (evidence insufficient to establish discriminatory animus where alleged comment made "approximately eight months" before termination), aff'd, No. 11-2076-cv, --- F. App'x ----, 2012 WL 2579897 (2d Cir. July 5, 2012); Buckman v. Calyon Sec. (USA) Inc., 817 F. Supp. 2d 322, 335-36 (S.D.N.Y. 2011) (inappropriate comment made five months before termination "is not probative of whether [plaintiff] was discharged because of his race"); Argueta v. N. Shore Long Island Jewish Health Sys., Inc., No. 01 CV 4031, 2003 WL 22670915 at *9 (E.D.N.Y. Nov. 6, 2003) (comment made "more than five months before" termination).²⁶

26 See also, e.g., Crawford v. Dep't of Investigation, 324 F. App'x 139, 142 (2d Cir. 2009) (comment "made more than a year prior to the reduction in force"); Feldman v. Looms, Div. of Levcor Int'l, Inc., No. 98-9680, 198 F.3d 233 (table), 1999 WL 973518 at *2 (2d Cir. Oct. 4, 1999) (comment made "some seven months prior to the termination"); Risco v. McHugh, 10 Civ. 6314, --- F. Supp. 2d ----, 2012 WL 2161115 at *18 (S.D.N.Y. June 14, 2012) (comment made "approximately four months" before plaintiff's termination); Sheridan v. N.Y. Life Inv. Mgmt., LLC, 09 Civ. 4746, 2012 WL 474035 at *7 (S.D.N.Y. Feb. 9, 2012) (comment made "nearly four months prior to" disciplinary action); Rodriguez v. City of N.Y., No. 09-CV-1378, 2011 WL 3610751 at *9 (E.D.N.Y. Aug. 16, 2011) (comment made "more than five months before plaintiff's termination"); Georgy v. O'Neill, No. 00-CV-0660, 2002 WL 449723 at *6 (E.D.N.Y. Mar. 25, 2002) (comment made "more than six months before" plaintiff's termination).

The remaining three remarks proffered by Shepherd make no explicit reference to race, and fail to provide support for Shepherd's claim that her termination occurred under circumstances giving rise to an inference of discrimination.

As an initial matter, Van Dillon's alleged comments to another coworker about Shepherd are inadmissible hearsay. Taylor v. Potter, 99 Civ. 4941, 2004 WL 1811423 at *17 (S.D.N.Y. Aug. 16, 2004) (Peck, M.J.) (Plaintiff's "testimony about what other employees allegedly told him is inadmissible hearsay."), aff'd, 148 F. App'x 33 (2d Cir. 2005).²⁷ In any event, even if admissible, Van Dillon's comment that Shepherd did not look "Madison Avenue" does not clearly refer to race, and Shepherd's own belief that this remark was motivated by discrimination will not suffice to establish the required inference. See, e.g., Sicular v. N.Y.C. Dep't of Homeless Servs., 2010 WL 423013 at *19 ("[Plaintiff's] personal belief . . . that his being Jewish played into the prejudices of the individual defendants and reinforced their animosity against him is insufficient to defeat defendants' summary judgment motion."); Baptiste v. Cushman & Wakefield, 03 Civ. 2102, 2007 WL 747796 at *7 (S.D.N.Y. Mar. 7, 2007) ("Plaintiff's mere subjective belief she was discriminated against because of her race . . . cannot sustain a charge of race discrimination."); Patterson v. Newspaper & Mail Deliverers' Union, 73 Civ. 4278, 2005 WL 3750749 at *16 (S.D.N.Y. July 13, 2005) ("A party's own self-serving conclusory statements cannot sustain a Title VII claim of discrimination.").

27 See, e.g., Howley v. Stratford, 217 F.3d 141, 155 (2d Cir. 2000) (In Title VII action, "assertions made by [plaintiff] only on her information and belief, for example, would not be admissible through her at trial, for testimony as to facts must generally be based on the witness's personal knowledge. Nor would testimony by [plaintiff] that other firefighters told her of certain statements by [her supervisor] likely be admissible to prove that [her supervisor] actually made such statements, for her testimony offered for that purpose would be hearsay."); Cooper v. John D. Brush & Co., 242 F. Supp. 2d 261, 270 (W.D.N.Y. 2003) (plaintiff in Title VII case failed to provide admissible evidence of supervisor's racist comments where "the only racial epithet of which plaintiff is aware is an alleged comment reported to him by another co-worker" and "plaintiff has not provided an affidavit from the co-worker who allegedly heard this statement"); Medina v. N.Y.C. Dep't of Parks & Recreation, 01 Civ. 7847, 2002 WL 31812681 at *5 (S.D.N.Y. Dec. 12, 2002) ("[Plaintiff's] own deposition testimony that a woman in the payroll department named Denise told her that African Americans are paid less than 'their positions require' . . . is inadmissible hearsay. A party resisting a motion for summary judgment must present admissible evidence in opposition to the motion." (citing Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 160 (2d Cir. 1999))).

Donahoe's alleged comment at a management meeting of the need to hire more blonde females related only to future hires. There is no evidence that he wanted to eliminate any existing employees who were not blonde females, and thus this comment does not raise an inference of discrimination as to Shepherd's termination. See, e.g., Saunders v. McDonald Invs. Inc., 110 F. App'x 150, 152 (2d Cir. 2004) (supervisors "made at least four statements indicative of a desire to fill the New York office with younger equity traders" but district court held remarks "ambiguous in so far as they can be considered as expressions of a desire for hiring chronologically younger equity traders" and thus "do not support a discrimination suit"); Buckman v. Calyon Sec. (USA) Inc., 817 F. Supp. 2d at 335 (comment that plaintiff's co-worker "was a good fit for sales because he is white, although inappropriate, is not probative of whether [plaintiff] was discharged because of his race"); Dixon v. Int'l Fed'n of Accountants, 09 Civ. 2839, 2010 WL 1424007 at *4 (S.D.N.Y. Apr. 9, 2010) (co-worker's comment at a meeting that "she can't believe that [defendant] could hire a black Jamaican woman at 48 years of age" held to be "at best ambiguous as to whether it met the test for discriminatory animus, was laudatory of the efforts to increase workplace diversity, or had some other meaning"), aff'd, 416 F. App'x 107 (2d Cir. 2011); Chuang v. T.W. Wang Inc., 647 F. Supp. 2d 221, 238 (E.D.N.Y. 2009) ("[R]emarks made in the past expressing a desire to hire younger subordinates are stray remarks insufficient to support a discrimination suit."); Brollosy v. Margolin, Winer & Evens, LLP, No. 05-CV-0873, 2006 WL 721433 at *10-11 (E.D.N.Y. Mar. 20, 2006) (discriminatory animus not established where record devoid of evidence showing supervisor's comment made five months prior to plaintiff's termination that position was "better performed by a person closer in age to the younger accountants" bore any nexus or was in any way related to plaintiff's termination decision).²⁸

28 See also, e.g., Renz v. Grey Adver., Inc., 135 F.3d 217, 224 (2d Cir. 1997) (granting summary judgment to employer because plaintiff's sole evidence of discrimination consisted of isolated remarks by decision-maker that, although inappropriate, were not directed at plaintiff); Velez v. SES Operating Corp., 07 Civ. 10946, 2009 WL 3817461 at *11 (S.D.N.Y. Nov. 12, 2009) ("[T]he [inappropriate] comment made by [defendant] to an unknown person on the telephone - a comment overheard by plaintiff . . . while standing outside her office - is best characterized as a 'stray remark' that is not probative of a discriminatory motive."); Nugent v. St. Luke's / Roosevelt Hosp. Ctr., 05 Civ. 5109, 2007 WL 1149979 at *16 (S.D.N.Y. Apr. 18, 2007) (inappropriate gender related remarks made by male supervisor but not directed at female plaintiff were "insufficient to demonstrate that the adverse actions taken against the plaintiff [were] attributable to gender bias"), aff'd, 303 F. App'x 943 (2d Cir. 2008); Murray v. Visiting Nurse Servs. of N.Y., 528 F. Supp. 2d 257, 279 (S.D.N.Y. 2007) (Sullivan, D.J.) ("In addition, it is undisputed that the . . . comments were not directed at plaintiff."); Green v. Harris Publ'ns, Inc., 331 F. Supp. 2d 180, 192 (S.D.N.Y. 2004) (granting summary judgment to defendant on plaintiff's hostile work environment claim, where two racially discriminatory comments overheard by plaintiff and not directed to plaintiff were isolated stray remarks).

Additionally, the diversity of the employees at BCBG's Madison Avenue store, all of whom were either hired or supervised by Donahoe (Donahoe Aff. ¶¶ 8-9, 14; see pages 4-5 above), further negates any inference of discrimination from this alleged remark. See, e.g., Baguer v. Spanish Broad. Sys., Inc., 2010 WL 2813632 at *12 ("In addition, the substantially diverse makeup of [defendant's] workforce and management strongly suggests that its decision to terminate Plaintiff was not racially motivated."); Liburd v. Bronx Lebanon Hosp. Ctr., 07 Civ. 11316, 2009 WL 900739 at *5 (S.D.N.Y. Apr. 3, 2009) (plaintiff failed to state a prima facie case in part because "statistics evince[d] substantial racial diversity among the employees comparable to Plaintiff and negate[d] any inference of discrimination that otherwise might have been created"), aff'd, 372 F. App'x 137 (2d Cir. 2010).

Similarly, in the absence of any other instances of racial discrimination, Donahoe's purported use of the term "sistah" does not evidence discrimination. E.g., Wilton v. San Francisco, No. 94-15116, 60 F.3d 836 (table), 1995 WL 398845 at *3 (9th Cir. July 7, 1995) ("Although [manager's] comments were crass . . . , they were isolated, and are insufficient to establish a hostile work environment. The one racial comment, [manager's] use of the word 'brother' at some time over a year before the altercation, is not enough to create sufficient specific evidence to survive summary judgment. Stray remarks are insufficient to establish discrimination."); Jubilee-Miller v. Frankford Torresdale Hosp., No. 09-00749, 2011 WL 534086 at *7 (E.D. Pa. Feb. 14, 2011) (Supervisor's "statement, '[o]ne more write-up, sister, and you are out the door,' does not give rise to an inference of discrimination."); Fraser v. Fiduciary Trust Co. Int'l, 04 Civ. 6958, 2009 WL 2601389 at *8 (S.D.N.Y. Aug. 25, 2009) (use of "'street slang' when talking to" plaintiff including referring to him as "'homey' or 'cuz'" were "not sufficiently severe or pervasive to sustain a hostile work environment claim"), aff'd, 396 F. App'x 734 (2d Cir. 2010); Hansberry v. Father Flanagan's Boys' Home, No. CV-03-3006, 2004 WL 3152393 at *4-6 (E.D.N.Y. Nov. 28, 2004) (supervisor's September 11, 2001 comment that plaintiff "shouldn't have let his 'brother with the rag on his head, fly the plane'" did not raise inference of discrimination since "even if interpreted to display a discriminatory animus towards African Americans" the comment was "temporally remote" and "unrelated to the decision process"); Taylor v. Potter, 2004 WL 1811423 at *15 ("Even if the term 'brother' is interpreted as a racial epithet, the Court does not find that [supervisor's] isolated, one-time use of the term in this context to be evidence of discrimination.").²⁹

29 See also, e.g., Hayes v. Cablevision Sys. N.Y.C. Corp., No. 07-CV-2438, 2012 WL 1106850 at *9 (E.D.N.Y. Mar. 31, 2012) ("In the absence of any other evidence suggesting a racially hostile environment, however, use of the term 'thug' does not suffice to create one."); Atterberry v. Ikon Office Solutions, Inc., No. Civ. 302CV1490, 2003 WL 22937719 at *8 (D. Conn. Dec. 10, 2003) (plaintiff failed to raise an inference of discrimination with only two alleged statements not bolstered by any other evidence of racial animus (& cases cited therein)); Rinsler v. Sony Pictures Entm't, Inc., 02 Civ. 4096, 2003 WL 22015434 at *6 (S.D.N.Y. Aug. 25, 2003) (single, stray remark, unsupported by any other evidence of discriminatory animus, did not create an inference of discrimination (& cases cited therein)); Manessis v. N.Y.C. Dep't of Transp., 02 Civ. 359, 2003 WL 289969 at *6 (S.D.N.Y. Feb. 10, 2003) ("Single incidents, unless very serious, generally do not satisfy the necessary requirement of severity or pervasiveness."), aff'd, 86 F. App'x 464 (2d Cir. 2004), cert. denied, 544 U.S. 1000, 125 S. Ct. 1928 (2005).

Accordingly, these incidents of vaguely race-related remarks, made between nine and twelve months prior to Shepherd's termination, are insufficient to establish an inference of discrimination. E.g., Beachum v. AWISCO N.Y., 785 F. Supp. 2d 84, 96 (S.D.N.Y. 2011) (Sullivan, D.J.) ("Plaintiff's vague testimony makes it impossible for this Court to assess the remarks' tendency to show decision-makers' motivations or even that the remarks were invidious at all. To the extent the Court is capable of doing so, it seems unlikely that the required nexus exists. Plaintiff did not testify that any of the comments were made in relation to [defendant's] decision to terminate his employment . . . and it seems unlikely they were made close in time to either adverse event."), aff'd, 459 F. App'x 58 (2d Cir. 2012); Galimore v. City Univ. of N.Y. Bronx Cmty. Coll., 641 F. Supp. 2d 269, 286 (S.D.N.Y. 2009) (Sullivan, D.J.) (comments such as "'I'm not going to let [a] black girl make me look bad'" may "evince a degree of racial animus" but "fail to demonstrate a sufficient nexus to Plaintiff's subsequent termination" where the "comments were not made in connection with the decision-making process").³⁰

30 See also, e.g., Davis-Bell v. Columbia Univ., 851 F. Supp. 2d 650, 677 (S.D.N.Y. 2012) ("Plaintiff offers a few discrete, facially neutral events, plus one statement from 2006, by an outside consultant to [defendant], regarding an alleged attitude about Plaintiff's race. This single statement does not afford a sufficient basis for a jury to conclude that the other discrete incidents occurred out of discriminatory animus."); Burke v. Deer-Park Union Free Sch. Dist., No. 08-CV-3600, 2011 WL 477736 at *4 (E.D.N.Y. Feb. 3, 2011) ("In this regard, the Court notes that his claims of racially based discrimination are predicated on three comments alone. Second, those stray comments are equivocal: it is not at all clear to the Court that referring to a Haitian girl as a Haitian girl constitutes even a racial, much less a racist, observation. Nor, necessarily, is [the superintendent's] alleged comment that she would employ more minorities 'if one could find any minorities that were qualified to teach.'"); Coley-Allen v. Strong Health, 828 F. Supp. 2d 582, 587 (W.D.N.Y. 2011) (where only race-related comments complained of were stray references "to African-American women as 'black girls'" the allegation "lacks 'sufficient gravitas to be considered circumstantial evidence of discrimination'").

1. The Alleged Comparator Is Not Similarly Situated To Shepherd

Absent direct evidence of a defendant's discriminatory intent, a plaintiff may establish the fourth prong of the prima facie case, circumstances giving rise to an inference of discrimination, by showing that she was treated differently than similarly situated employees outside her protected group. See, e.g., Broich v. Inc. Vill. of Southampton, 462 F. App'x 39, 42 (2d Cir. 2012); Ruiz v. Cnty. of Rockland, 609 F.3d 486, 493 (2d Cir. 2010); Berube v. Great Atl. & Pac. Tea Co., 348 F. App'x 684, 686 (2d Cir. 2009); Mandell v. Cnty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003); Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000); Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997); Conway v. Microsoft, 414 F. Supp. 2d 450, 459 (S.D.N.Y. 2006). In order to prove that she was subjected to disparate treatment, a plaintiff must show that she was "'similarly situated in all material respects' to the individuals with whom she seeks to compare herself." Conway v. Microsoft, 414 F. Supp. 2d at 459.³¹ "What constitutes 'all material respects' . . . varies somewhat from case to case and . . . must be judged based on (1) whether the plaintiff and those [she] maintains were similarly situated were subject to the same workplace standards and (2) whether the conduct for which the employer imposed discipline was of comparable seriousness." Graham v. Long Island R.R., 230 F.3d at 40 ("Hence, the standard for comparing conduct requires a reasonably close resemblance of the facts and circumstances of plaintiff's and comparator's cases. . . .").³²

31 Accord, e.g., Broich v. Inc. Vill. of Southampton, 462 F. App'x at 42; Ruiz v. Cnty. of Rockland, 609 F.3d at 494; Berube v. Great Atl. & Pac. Tea Co., 348 F. App'x at 686; Mandell v. Cnty. of Suffolk, 316 F.3d at 379; McGuinness v. Lincoln Hall, 263 F.3d 49, 53-54 (2d Cir. 2001); Graham v. Long Island R.R., 230 F.3d at 39; Shumway v. United Parcel Serv., Inc., 118 F.3d at 64.

32 See also, e.g., Rommage v. MTA Long Island R.R., 452 F. App'x 70, 71 (2d Cir. 2012) ("'[T]he standard for comparing conduct requires a reasonably close resemblance of the facts and circumstances of plaintiff's and comparator's cases, rather than a showing that both cases are identical.'"); Ruiz v. Cnty. of Rockland, 609 F.3d at 493-94 ("An employee is similarly situated to co-employees if they were (1) 'subject to the same performance evaluation and discipline standards' and (2) 'engaged in comparable conduct.'"); Stepheny v. Brooklyn Hebrew Sch. for Special Children, 356 F. Supp. 2d 248, 260 (E.D.N.Y. 2005) ("'Similarly situated' means the other employee 'must have engaged in conduct similar to the plaintiff's without such differentiating or mitigating circumstances that would distinguish their conduct or the appropriate discipline for it.'").

Shepherd fails to establish that Derr was similarly situated in all material respects. By the time Shepherd was terminated in December 2009, Human Resources had received numerous written complaints about Shepherd purporting to reveal continuous and ongoing performance and disciplinary issues that remained uncorrected after repeated warnings. (See pages 7-14 above.) In contrast, Shepherd has submitted evidence only of two isolated instances of misconduct by Derr, and no evidence that Derr continued to violate BCBG policies thereafter. (See page 18 above.) Derr thus is not similarly situated in all material respects. E.g., Conway v. Microsoft, 414 F. Supp. 2d at 464 ("When a plaintiff's misconduct is objectively more serious than that of a proposed comparator, differential treatment by the employer does not create an issue of fact that will defeat a motion for summary judgment."); see, e.g., Bengard v. United Parcel Serv., 48 F. App'x 350, 352 (2d Cir. 2002) (summary judgment affirmed for employer because terminated employee who "falsified his time sheets to reflect that he was working on company tasks when he was in fact repairing private vehicles" was not similarly situated to employee who fixed private vehicles on his own time); Cruz v. Coach Stores, Inc., 202 F.3d 560, 567-68 (2d Cir. 2000) (summary judgment affirmed for employer because terminated employee who engaged in physical fight was not similarly situated to employee who only used racial slurs).³³

33 See also, e.g., McKinney v. Bennet, 06 Civ. 13486, 2009 WL 2981922 at *7 (S.D.N.Y. Sept. 16, 2009) (summary judgment for employer granted because State trooper with a lengthy disciplinary history who placed a female trooper's hand on his penis was not "similarly situated to either his female victims or the white troopers he attempt[ed] to compare himself to" because they had not behaved in a similar manner and did not have similar disciplinary histories); Gonzalez v. N.Y.C. Transit Auth., 00 Civ. 4293, 2001 WL 492448 at *15 (S.D.N.Y. May 9, 2001) (Peck, M.J.) ("An employee who agrees to settle misconduct charges is not similarly situated to one who contests the charges and is found guilty at an administrative hearing."); Economou v. Caldera 99 Civ. 12117, 2000 WL 1844773 at *29 (S.D.N.Y. Dec. 18, 2000) (Peck, M.J.) ("In the absence of evidence that employees who engaged in conduct similar to [Plaintiff]'si.e., submitting apparently fraudulent travel vouchers - were not investigated, the fact that other employees were not being investigated for fraud is irrelevant.").

Additionally, Derr is not similarly situated to Shepherd because she was supervised by another manager at a different store when she was issued the two performance correction notices, and not by Van Dillon. (See page 18 above.) "In the Second Circuit, whether or not co-employees report to the same supervisor is an important factor in determining whether two employees are subject to the same workplace standards for purposes of finding them similarly situated." Conway v. Microsoft, 414 F. Supp. 2d at 465; see, e.g., Iuorno v. DuPont Pharm. Co., 129 F. App'x 637, 641 (2d Cir. 2005); Shumway v. United Parcel Serv., Inc., 118 F.3d at 64; Sicular v. N.Y.C. Dep't of Homeless Servs., 09 Civ. 0981, 2010 WL 423013 *19 n.25 (S.D.N.Y. Feb. 4, 2010) (Peck, M.J.), report & rec. adopted, 2010 WL 2179962 (S.D.N.Y. May 28, 2010), aff'd, 455 F. App'x 129 (2d Cir. 2012); Akinyemi v. Chertoff, 07 Civ. 4048, 2008 WL 1849002 at *5 & n.10 (S.D.N.Y. Apr. 25, 2008) (Peck, M.J.) ("Whether or not a plaintiff reports to the same supervisor as her comparator is an important factor in finding that plaintiff and the comparator are similarly situated." (& cases cited therein)); Murray v. Visiting Nurse Servs. of N.Y., 528 F. Supp. 2d 257, 274 n.12 (S.D.N.Y. 2007) (Sullivan, D.J.).

Because Shepherd offers insufficient direct evidence that she was terminated because of her race, and because her alleged comparator is not similarly situated in all material respects, she has failed to establish a prima facie case of racial discrimination. Accordingly, the Court should grant summary judgment to BCBG dismissing Shepherd's claim that she was terminated because of her race.

B. In Any Event , Shepherd's Discrimination Claim Fails At The Third McDonnell Douglas Step

BCBG's reasons for Shepherd's termination were her repeated violations of company policies and procedures, numerous co-worker complaints about Shepherd's behavior, and her breach of the confidentiality of the severance discussion she had with Macias on December 17, 2009. (See pages 17-18 above.) BCBG's reasons satisfy its burden at the second McDonnell Douglas step. (See cases cited at page 28 above.) Shepherd disputes the factual bases for BCBG's complaints about her performance. (See pages 7-14 above.) Even assuming arguendo that Shepherd has presented sufficient evidence to show that BCBG's proffered non-discriminatory justification is false, that does not suffice to satisfy the third prong of the McDonnell Douglas test, which requires a showing not only that BCBG's reason is false, but also that the real reason is discrimination. (See cases cited at pages 29-31 above.)

Since Shepherd's evidence of discrimination is insufficient to make out a prima facie showing, it is undoubtedly insufficient to satisfy the third step of the McDonnell Douglas test. See, e.g., Beachum v. AWISCO N.Y., 785 F. Supp. 2d 84, 97 (S.D.N.Y. 2011) (Sullivan, D.J.) ("Moreover, the evidence that Plaintiff pointed to in his attempt to establish a prima facie case does not alter this analysis. As stated above, the alleged disparate treatment and Plaintiff's conclusory, vague statements about racially-motivated jokes are insufficient to establish an inference of discrimination at step one, let alone at step three of the McDonnell Douglas framework."), aff'd, 459 F. App'x 58 (2d Cir. 2012); Sicular v. N.Y.C. Dep't of Homeless Servs., 09 Civ. 0981, 2010 WL 423013 at *21 (S.D.N.Y. Feb. 4, 2010) (Peck, M.J.) ("As described above in connection with [plaintiff's] prima facie case, he either has not made out a prima facie case (which this Court has so held) or if he has, it is an incredibly weak showing. While [plaintiff] challenges some of defendants' claims of his insubordination, he concedes that the factual basis for the main reasons DHS gave for firing him - his lateness and his improper comments about immigrants and foreigners - are true. Accordingly, at the third McDonnell Douglas step, the case for granting summary judgment to defendants is even stronger than at the prima facie case stage." (citations omitted)), report & rec. adopted, 2010 WL 2179962 (S.D.N.Y. May 28, 2010), aff'd, 455 F. App'x 129 (2d Cir. 2012).

C. BCBG's Summary Judgment Motion Should Be Granted With Respect To Shepherd's Hostile Work Environment Claim

To establish a hostile work environment claim, Shepherd must show that BCBG's conduct was:

"sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., 510 U.S. 17, 21, 114 S. Ct. 367, 370 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 2405 (1986)) (internal brackets and quotation marks omitted). The conduct must be intimidating, hostile, or offensive, with discriminatory intimidation, ridicule, and insult permeating the workplace. See Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995). All of the circumstances must be considered; a reasonable person would have to find the environment hostile or abusive, and the victim must have subjectively so perceived it. See Harris v. Forklift Sys., 510 U.S. 17, 21-23, 114 S. Ct. 367, 370-71 (1993); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995).

Gallagher v. Delaney, 139 F.3d 338, 346-47 (2d Cir. 1998), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998); accord, e.g., Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009); Aulicino v. N.Y.C. Dep't of Homeless Servs., 580 F.3d 73, 82 (2d Cir. 2009); Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007); Feingold v. New York, 366 F.3d 138, 149-50 (2d Cir. 2004).³⁴

34 See also, e.g., Mormol v. Costco Wholesale Corp., 364 F.3d 54, 58 (2d Cir. 2004); Terry v. Ashcroft, 336 F.3d 128, 147-48 (2d Cir. 2003); Alfano v. Costello, 294 F.3d 365, 373-74 (2d Cir. 2002); Dayes v. Pace Univ., 2 F. App'x 204, 207 (2d Cir. 2001); Whidbee v. Garzarelli Food Specialties, Inc., 223 F. 3d 62, 69-71 (2d Cir. 2000); Howley v. Town of Stratford, 217 F.3d 141, 153-54 (2d Cir. 2000); Richardson v. N.Y.S. Dep't of Corr. Serv., 180 F.3d 426, 437-40 (2d Cir. 1999), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998); Torres v. Pisano, 116 F.3d 625, 630 (2d Cir.), cert. denied, 522 U.S. 997, 118 S. Ct. 563 (1997); Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1042 (2d Cir. 1993); Slaitane v. Sbarro, Inc., 03 Civ. 5503-04, 2004 WL 1202315 at *12-13 (S.D.N.Y. June 2, 2004) (Peck, M.J.); Viruet v. Citizen Advice Bureau, 01 Civ. 4594, 2002 WL 1880731 at *15 (S.D.N.Y. Aug. 15, 2002) (Peck, M.J.); Williams v. N.Y.C. Dep't of Sanitation, 00 Civ. 7371, 2001 WL 1154627 at *12-13 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.); Adeniji v. Admin. for Children Servs., 43 F. Supp. 2d 407, 421 (S.D.N.Y.) (Wood, D.J. & Peck M.J.), aff'd, No. 99-7561, 201 F.3d 430 (table), 1999 WL 1070027 (2d Cir. Nov. 18, 1999).

"Conduct that is 'merely offensive' and 'not severe or pervasive enough to create an objectively hostile or abusive work environment'" is insufficient to establish a Title VII discrimination claim. Torres v. Pisano, 116 F.3d at 631; accord, e.g., Duch v. Jakubek, 588 F.3d at 762; Rios v. Buffalo & Fort Erie Pub. Bridge Auth., 326 F. App'x 612, 613-14 (2d Cir. 2009); DeSalvo v. Volhard, 312 F. App'x 394, 397 (2d Cir.), cert. denied, 130 S. Ct. 70 (2009); Slaitane v. Sbarro, Inc., 2004 WL 1202315 at *13; Williams v. N.Y.C. Dep't of Sanitation, 2001 WL 1154627 at *13; see also, e.g., Dayes v. Pace Univ., 2 F. App'x at 207 (Defendant's "comments and behavior, although boorish and inappropriate, simply do not rise to the level of behavior necessary for a jury reasonably to conclude that they were sufficiently severe or pervasive to alter the condition of [plaintiff]'s employment."). "Thus, harms suffered in the workplace are cognizable under Title VII, even when they are not the result of 'tangible employment actions,' if they arise from conduct (1) that is 'objectively' severe or pervasive - that is, if it creates 'an environment that a reasonable person would find hostile or abusive' [the 'objective' requirement], (2) that the plaintiff 'subjectively perceive[s]' as hostile or abusive [the 'subjective' requirement], and (3) that creates such an environment because of plaintiff's . . . characteristic protected by Title VII [the 'prohibited causal factor' requirement]." Gregory v. Daly, 243 F.3d 687, 691-92 (2d Cir. 2001) (citations omitted, bracketed material in original).

Isolated incidents of discriminatory comments or conduct is not sufficient to establish a hostile work environment. E.g., Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 2283 (1998) ("'[S]imple teasing,' . . . offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment.'"); Harris v. Forklift Sys., Inc., 510 U.S. at 21, 114 S. Ct. at 370 ("'mere utterance of an . . . epithet which engenders offensive feelings in an employee,' . . . does not sufficiently affect the conditions of employment to implicate Title VII"); Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006) ("Isolated incidents typically do not rise to the level of a hostile work environment unless they are 'of sufficient severity' to 'alter the terms and conditions of employment as to create such an environment.' Generally, 'incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.'" (citations omitted)); Petrosino v. Bell Atl., 385 F.3d 210, 223 (2d Cir. 2004) ("Simple teasing, offhand comments, or isolated incidents of offensive conduct (unless extremely serious) will not support a claim of discriminatory harassment.").³⁵ "Among the factors [the courts] consider are 'the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes in [the] employee's work performance.'" Feingold v. New York, 366 F.3d at 150 (quoting Harris v. Forklift Sys., Inc., 510 U.S. at 23, 114 S. Ct. at 371).³⁶

35 See also, e.g., Byrne v. Telesector Res. Grp., Inc., 339 F. App'x 13, 18 (2d Cir. 2009) (isolated incidents of offensive misconduct "do not rise to a sufficiently serious level to manifest a work environment 'permeated with discriminatory intimidation'"); DeSalvo v. Volhard, 312 F. App'x at 397; Feingold v. New York, 366 F.3d at 150 ("'As a general rule, incidents must be more than "episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive."'"); Holtz v. Rockefeller & Co., 258 F.3d 62, 75 (2d Cir. 2001) ("'Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.'"); Rizzo-Puccio v. Coll. Auxiliary Servs., Inc., No. 99-9272, 216 F.3d 1073 (table), 2000 WL 777955 at *3 (2d Cir. June 14, 2000) ("[I]solated remarks or occasional episodes of harassment do not constitute a hostile environment within the meaning of Title VII."); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998) ("As a general matter, 'isolated remarks or occasional episodes of harassment will not merit relief under Title VII; in order to be actionable, the incidents of harassment must occur in concert or with a regularity that can reasonably be termed pervasive.'"), abrogated on other grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002); Slaitane v. Sbarro, Inc., 2004 WL 1202315 at *13; Diaz v. Weill Med. Ctr. of Cornell Univ., 02 Civ. 7380, 2004 WL 285947 at *18 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.) (& cases cited therein), aff'd, 138 F. App'x 362 (2d Cir. 2005).

36 Accord, e.g., Aulicino v. N.Y.C. Dep't of Homeless Servs., 580 F.3d at 82; Patane v. Clark, 508 F.3d at 113; Demoret v. Zegarelli, 451 F.3d at 149-50; Mormol v. Costco Wholesale Corp., 364 F.3d at 58; Terry v. Ashcroft, 336 F.3d at 148; Slaitane v. Sbarro, Inc., 2004 WL 1202315 at *13; see also, e.g., Clemente v. N.Y. State Div. of Parole, 01 Civ. 3945, 2004 WL 1900330 at *12 (S.D.N.Y. Aug. 24, 2004) ("As for pervasiveness, the Court concludes that six occurrences of relatively mild workplace difficulty over the course of a year do not, as a matter of law, constitute 'pervasive' harassment.").

During her deposition, Shepherd testified to the same four isolated comments or incidents: that Van Dillon allegedly told a coworker that Shepherd was not "Madison Avenue" and was lazy, that Van Dillon asked Shepherd how she felt being a black woman in New York, that Donahoe referred to Shepherd as "sistah" and that Donahoe stated at a management meeting that they should hire more blonde females. (See pages 2-5 above.)

Even when viewing the totality of the alleged conduct Shepherd complains of, the allegations fail to rise to the level of a hostile work environment. Importantly, Shepherd fails to allege how the conduct she complains of interfered with her ability to do her work. Quite to the contrary, she alleges that she outperformed her colleagues.³⁷ See Murray v. Visiting Nurse Servs. of N.Y., 528 F. Supp. 2d 257, 278 (S.D.N.Y. 2007) (Sullivan, D.J.) (plaintiff failed to successfully plead that he was subjected to a hostile work environment because he conceded that the conduct at issue did not "'adversely affect the terms and conditions of his own employment'"); Clemente v. N.Y. State Div. of Parole, 2004 WL 1900330 at *12 ("Moreover, plaintiff has not alleged that her performance was affected in any material way by the alleged harassment she encountered. In fact, plaintiff continued to receive commendations for her work with the SOU throughout the relevant time period for this action.").

37 Shepherd claims that she achieved the second-highest sales performance of all managers at the Madison Avenue store during 2009. (Dkt. No. 29: Macias Aff. Ex. GG: 1/3/10 Shepherd Email.)

Additionally, the four instances discussed above are the only ones identified by Shepherd in her one and a half years of employment with BCBG. (See pages 2-5 above.) Even if this Court credited some or all of these four remarks as offensive, they are insufficient to successfully show actionable discrimination because "'isolated instances of harassment ordinarily do not rise to [the] level'" of a hostile work environment. Murray v. Visiting Nurse Servs. of N. Y., 528 F. Supp. 2d at 277; see also, e.g., Brennan v. Met. Opera Ass'n, Inc., 192 F.3d 310, 318 (2d Cir. 1999) ("Isolated, minor acts or occasional episodes do not warrant relief."); Williams v. Cnty. of Westchester, 171 F.3d 98, 100 (2d Cir. 1999) ("In order to meet his burden, the plaintiff must show 'more than a few isolated incidents of racial enmity'; 'there must be a steady barrage of opprobrious racial comments'; evidence solely of 'sporadic racial slurs' does not suffice." (citations omitted)); Viruet v. Citizen Advice Bureau, 2002 WL 1880731 at *15 ("Isolated incidents of discriminatory comments or conduct [are] not sufficient to establish a hostile work environment." (citing cases)); Adeniji v. Admin. for Children Servs., 43 F. Supp. 2d 407, 413 (S.D.N.Y. 1999) ("As Magistrate Judge Peck correctly points out, it is well-settled that one racial remark, or even sporadic remarks, are not sufficient to establish a hostile work environment."), aff'd, No. 99-7561, 201 F.3d 430 (table), 1999 WL 1070027 (2d Cir. Nov. 18, 1999). As such, these four incidents fail to create a hostile work environment.

IV. BCBG'S SUMMARY JUDGMENT MOTION SHOULD BE GRANTED AS TO SHEPHERD'S TITLE VII RETALIATION CLAIM

"Under . . . Title VII . . . , a claimant may bring suit in federal court only if she has filed a timely complaint with the EEOC. . . ." Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001); see, e.g., 42 U.S.C. § 2000e-5(e) & (f).³⁸ "Exhaustion of administrative remedies through the EEOC is 'an essential element' of the Title VII . . . statutory scheme[] and, as such, a precondition to bringing such claims in federal court." Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d at 686; Francis v. City of N.Y., 235 F.3d 763, 768 (2d Cir. 2000); Malarkey v. Texaco, Inc., 983 F.2d at 1208.

38 See also, e.g., Shah v. N.Y.S. Dep't of Civil Serv., 168 F.3d 610, 613 (2d Cir. 1999); Malarkey v. Texaco, Inc., 983 F.2d 1204, 1208 (2d Cir. 1993); Smith v. Am. President Lines, Ltd., 571 F.2d 102, 105 (2d Cir. 1978) ("[T]he filing of a timely EEOC charge is a necessary prerequisite to a Title VII action in the district court."); Pozo v. J & J Hotel Co., 06 Civ. 2004, 2007 WL 1376403 at *19 (S.D.N.Y. May 10, 2007) (Peck, M.J.); Williams v. City of N.Y., 04 Civ. 1993, 2005 WL 839103 at *7 (S.D.N.Y. Apr. 12, 2005) (Peck, M.J.) (& cases cited therein).

"While a plaintiff's EEOC charge should be construed liberally, especially for a pro se plaintiff, there is a difference between liberally reading a claim which lacks specificity, and inventing, ex nihilo, a claim which simply was not made." Williams v. City of N.Y., 2005 WL 839103 at *8 (quotations omitted); accord, e.g., Adeniji v. Admin. for Children Servs., 43 F. Supp. 2d 407, 427 (S.D.N.Y.) (Wood, D.J. & Peck, M.J.), aff'd No. 99-7561, 201 F.3d 430 (table), 1999 WL 1070027 (2d Cir. Nov. 18, 2009); Hernandez v. N.Y.C. Law Dep't, 94 Civ. 9042, 1997 WL 27047 at *8 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.).

Shepherd's May 2009 EEOC EAS Questionnaire complained of the four discrete incidents of race discrimination alleged in this action. (See page 19 above.) The alleged retaliation occurred after May 2009 (see pages 7-14 above), and therefore could not have been complained of in Shepherd's May 2009 EEOC EAS Questionnaire.

Because Shepherd's 2009 complaint was not properly processed by the EEOC, it was not until after Shepherd sent a letter to the EEOC requesting a Notice of Right to Sue that she actually filled out a formal Charge of Discrimination, on June 27, 2011. (See page 19 above.)

When Shepherd completed the Charge of Discrimination form, she alleged the same incidents of race discrimination complained of in her May 2009 EEOC EAS Questionnaire and in this action. (See page 19 above.) The June 2011 Charge contains the additional fact that Shepherd was terminated by BCBG on December 17, 2009, allegedly because "it wasn't working out." (See page 19 above.) Shepherd did not allege any additional facts in the June 2011 Charge of Discrimination; she made no reference to her May 2009 or November 2009 internal complaints to BCBG's Human Resources department. Additionally, in the section of the Charge of Discrimination form labeled "Discrimination Based On," Shepherd checked the "Race" box, but did not check the "Retaliation" box. (See page 20 above.)

BCBG argues that Shepherd's Title VII retaliation claim therefore must be dismissed because it was not raised in her EEOC charge. (Dkt. No. 26: BCBG Br. at 15-16.)

The Second Circuit recognizes that "claims that were not asserted before the EEOC may be pursued in a subsequent federal court action if they are 'reasonably related' to those that were filed with the agency." Shah v. N.Y.S. Dep't of Civil Serv., 168 F.3d at 614; see also, e.g., Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d at 686; Malarkey v. Texaco, Inc., 983 F.2d at 1208-09; Pozo v. J & J Hotel Co., 2007 WL 1376403 at *20; Williams v. City of N.Y., 2005 WL 839103 at *7. The Second Circuit has "recognized three situations in which claims not raised in an EEO charge are sufficiently related to the allegations in the charge that it would be unfair to civil rights plaintiffs to bar such claims in a civil action: 1) where the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination; 2) where the complaint is one alleging retaliation by an employer against an employee for filing an EEOC charge; and 3) where the complaint alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Terry v. Ashcroft, 336 F.3d 128, 151 (2d Cir. 2003) (quotations omitted).³⁹

39 See also, e.g., Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d at 686; Hassan v. N.Y.C. Off Track Betting Corp., 05 Civ. 9677, 2007 WL 678422 at *3 (S.D.N.Y. Mar. 6, 2007).

Here, Shepherd's retaliation claim does not fall within any of the three categories. As to the second category, Shepherd does not allege that BCBG retaliated against her for filing an EEOC charge; rather, she alleges retaliation for making her internal Human Resources complaints. (See pages 7-16 above.) Indeed, BCBG was not notified of Shepherd's EEOC charge until long after Shepherd was terminated. (See page 20 above.) As to the third category, there are no additional incidents of discrimination alleged in this action that were not alleged in the EEOC charge. (See pages 19-20 above.)

As to the first category, a claim may be considered "reasonably related" to a claim made in an EEOC complaint if it "would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge that was made." Ximines v. George Wingate High Sch., 516 F.3d 156, 158 (2d Cir. 2008). The focus is therefore on the factual allegations made in the EEOC charge itself which describes the discriminatory conduct. Ximines v. George Wingate High Sch., 516 F.3d at 158. The question becomes whether the complaint filed with the EEOC gave the agency adequate notice to investigate discrimination on additional bases. Ximines v. George Wingate High Sch., 516 F.3d at 158.

A retaliation claim raised for the first time in federal court based on conduct that occurred before the EEOC Charge was completed is only "reasonably related" to the EEOC discrimination complaint if the Charge contained factual allegations that would put the EEOC on notice of the underlying protected activity or suspected retaliatory animus. E.g., O'Hara v. Mem'l Sloan-Kettering Cancer Ctr., 27 F. App'x 69, 70-71 (2d Cir. 2001) ("Retaliation is a theory of liability that is substantively distinct from [plaintiff's] age discrimination claim. The scope of an EEOC investigation cannot reasonably be expected to encompass retaliation when [plaintiff] failed to put the agency on notice that she had engaged in the type of protected activity that is the predicate to a retaliation claim." (citation omitted)); Henny v. New York, 842 F. Supp. 2d 530, 558 (S.D.N.Y. 2012) (retaliation claim was not reasonably related where plaintiff's "administrative complaint does not say that Plaintiff complained at all"); Jenkins v. N.Y.C. Transit Auth., 646 F. Supp. 2d 464, 472-73 (S.D.N.Y. 2009) (collecting cases holding retaliation claim not reasonably related where EEOC charges "were devoid of any reference to a retaliatory motive or any allegation that the plaintiff had engaged in a protected activity"); Viruet v. Citizens Advice Bureau, 01 Civ. 4595, 2002 WL 1880731 at *22 (S.D.N.Y. Aug. 15, 2002) (Peck, M.J.) (Title VII retaliation claim precluded where plaintiff "only checked the 'sex' and 'disability' boxes, not the 'retaliation' box").⁴⁰

40 See also, e.g., Conkling v. Brookhaven Sci. Assocs., LLC, No. 10-CV-4164, 2012 WL 2160439 at *5 (E.D.N.Y. June 12, 2012) (retaliation claim not reasonably related where EEOC charge "does not state that [plaintiff] ever complained about the alleged discriminatory treatment or engaged in any other protected activity" and omits "any reference to a retaliatory motive"); Morris v. David Lerner Assocs., 680 F. Supp. 2d 430, 437-38 (E.D.N.Y. 2010) ("In cases such as this one, a retaliation claim is not 'reasonably related' to the EEOC charge simply because the EEOC charge refers to the fact that plaintiff suffered an adverse employment action, such as termination." (citing cases)); compare, e.g., Smith v. St. Luke's Roosevelt Hosp., 08 Civ. 4710, 2009 WL 2447754 at *19 & n.31 (S.D.N.Y. Aug. 11, 2009) (Peck, M.J.) (retaliation claim not barred where plaintiff's administrative filing expressly alleged that he was terminated because he "'opposed discrimination'"), report & rec. adopted, 2009 WL 2878093 (S.D.N.Y. Sept. 2, 2009).

Shepherd completed her formal EEOC Charge of Discrimination in June 2011, one and a half years after her December 2009 termination. (See pages 19-20 above.) Nevertheless, Shepherd failed to include any facts that would have put the EEOC on notice to investigate a claim of retaliation: Shepherd did not check off the box labeled retaliation, did not allege that she engaged in any protected activity (i.e., did not mention her May 2009 or November 2009 internal complaints to Human Resources), did not describe any of the alleged retaliatory conduct preceding her termination, and did not make any reference to a retaliatory animus motivating her termination. (See pages 19-20 above.)

Under these circumstances, Shepherd's Title VII retaliation claim is not "reasonably related" to her June 2011 EEOC discrimination charge and, consequently, does not fall within the Second Circuit's exceptions to the administrative exhaustion requirement. Therefore, Shepherd's Title VII retaliation claim should be dismissed for failure to exhaust administrative remedies. V. SHEPHERD'S REMAINING STATE LAW CLAIMS SHOULD BE DISMISSED WITHOUT PREJUDICE UNDER THE UNITED MINE WORKERS v. GIBBS DOCTRINE

Shepherd's remaining causes of action, i.e., her retaliation claims under the NYSHRL and NYCHRL (Dkt. No. 2: Compl. at 1, 3), are state law claims. "Unlike Title VII, the NYSHRL and NYCHRL do not require exhaustion of administrative remedies." Viruet v. Citizens Advice Bureau, 01 Civ. 4595, 2002 WL 1880731 at *22 n.44 (S.D.N.Y. Aug. 15, 2002) (Peck, M.J.) (& cases cited therein). Since Shepherd's complaint did not allege diversity jurisdiction and Shepherd's federal claims are being dismissed, the Court declines to exercise supplemental jurisdiction over Shepherd's NYSHRL and NYCHRL retaliation claims. See, e.g., Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 & n.7, 108 S. Ct. 614, 619 & n.7 (1988) ("[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the [supplemental] jurisdiction doctrine - judicial economy, convenience, fairness, and comity - will point toward declining to exercise jurisdiction over the remaining state-law claims."); United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139 (1966); Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 250 (2d Cir. 2008); Quinones v. Mamis-King, 155 F. App'x 547, 548 (2d Cir. 2005); Gelb v. Bd. of Elections of City of N.Y., 155 F. App'x 12, 15 (2d Cir. 2005), cert. denied, 547 U.S. 1129, 126 S. Ct. 2030 (2006); Motorola Credit Corp. v. Uzan, 388 F.3d 39, 56 (2d Cir. 2004), cert. denied, 544 U.S. 1044, 125 S. Ct. 2270 (2005); Lanza v. Merrill Lynch & Co. (In re Merrill Lynch Ltd. P'ships Litig.), 154 F.3d 56, 61 (2d Cir. 1998); Pitchell v. Callan, 13 F.3d 545, 549 (2d Cir. 1994). Thus, Shepherd's NYSHRL and NYCHRL retaliation claims should be dismissed without prejudice.⁴¹

41 In light of the foregoing, this Court need not address the additional ground for dismissal advanced by BCBG, i.e., that the after-acquired evidence of Shepherd's recording of a telephone call with Macias in violation of California law warranted her dismissal. (Dkt. No. 26: BCBG Br. at 21-23.)

CONCLUSION

For the reasons set forth above, BCBG's summary judgment motion (Dkt. No. 25) should be GRANTED. Shepherd's discrimination and Title VII retaliation claims should be dismissed with prejudice, and Shepherd's NYSHRL and NYCHRL retaliation claims should be dismissed without prejudice.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6.⁴² Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Richard J. Sullivan, 500 Pearl Street, Room 640, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Sullivan (with a courtesy copy to my chambers). Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983). Dated: New York, New York

42 If the pro se plaintiff requires copies of any of the cases reported only in Westlaw, plaintiff should request copies from defense counsel. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009); SDNY-EDNY Local Civil Rule 7.2.

October 11, 2012

/s/_________

Andrew J. Peck

United States Magistrate Judge Copies to: Latrice D. Shepherd (Regular & Certified Mail)

Eric A. Savage, Esq. (ECF)

Judge Richard J. Sullivan (ECF)