Opinion
19-CV-8457 (PGG) (JLC)
06-23-2023
JOSEPH ROGER WATKINS, Plaintiff, v. ANTHONY T. RINALDI, LLC, et al., Defendants.
REPORT AND RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge.
To The Honorable Paul G. Gardephe, United States District Judge:
In this employment lawsuit challenging his termination, Joseph Roger Watkins has alleged disability discrimination in violation of the Americans with Disabilities Act (“ADA”), New York State Human Rights Law (“NYSHRL”), and New York City Human Rights Law (“NYCHRL”). Anthony T. Rinaldi, LLC (“ATR”), The Rinaldi Group LLC (“TRG”), and Anthony Rinaldi (“Rinaldi”) (collectively, “defendants”) have moved for summary judgment. For the reasons set forth below, the motion should be granted and Watkins' complaint should be dismissed.
Watkins originally brought claims alleging age discrimination as well but has now withdrawn them. See Plaintiff's Opposition to Defendants' Motion for Summary Judgment (“Pl. Mem.”). Dkt. No. 90-l at 1 (“Plaintiff hereby withdraws his age discrimination [sic].”).
I. BACKGROUND
A. Factual Background
Unless otherwise noted, the following facts are undisputed. ATR and TRG are “general construction management companies performing construction management, general contracting, construction consulting, and other services within the construction industry.” Counter Statement ¶ 1. Rinaldi, the president and chief executive officer, “supervises and manages” and “interviews, hires, and fires” for both companies. Id. ¶¶ 7-9.
The Court has reviewed both statements submitted by the parties pursuant to S.D.N.Y. Local Rule 56.1, see Dkt. Nos. 77, 90; and, except where noted, relies on Plaintiff's Responses to Defendants' Rule 56.1 Statement (“Counter Statement”), Dkt. No. 90, as it clearly articulates the facts that are undisputed by the parties. However, where Watkins purports to controvert a statement by citing to evidence that does not “specifically controvert” it, defendants' statement should be deemed admitted. Local Rule 56.1(c); see, e.g., Saadeh v. Kagan, No. 20-CV-1945 (PAE), 2023 WL 2734422, at *1 n.3 (S.D.N.Y. Mar. 31, 2023) (“Where facts stated in a party's Rule 56.1 statement are supported by testimonial or documentary evidence, and denied by a conclusory statement by the other party without citation to conflicting testimonial or documentary evidence, the Court finds such facts true.”). Additionally, Watkins argues that “many of Defendants' proposed statements of fact are . . . legal arguments [or] mischaracterizations,” and should therefore be stricken for failure to adhere to Local Rule 56.1. See Counter Statement at 2. However, “courts in this Circuit frequently deny motions to strike paragraphs in Rule 56.1 statements, and [instead] simply disregard any improper assertions.” Ross Univ. Sch. of Med., Ltd. v. Brooklyn-Queens Health Care, Inc., No. 09-CV-1410 (KAM), 2012 WL 6091570, at *6 (E.D.N.Y. Dec. 7, 2012) adopted by 2013 WL 1334271 (Mar. 28, 2013). Accordingly, rather than strike entire statements, any legal arguments or characterizations made by defendants should simply be disregarded. See, e.g., Mayaguez S.A. v. Citigroup, Inc., No. 16-CV-6788 (PGG) (JLC), 2021 WL 1799653, at *6 (S.D.N.Y. Apr. 30, 2021), adopted by 2022 WL 901627, at *8-9 (Mar. 25, 2022).
Watkins is a former employee of ATR, which is a separate legal entity from TRG. Id. ¶¶ 3-5. Rinaldi interviewed Watkins for a position on or about October 2016, and subsequently decided to “hire [him] and place him on a project called 50 Clinton Street in New York City.” Id. ¶¶ 21-22. Watkins began his employment on December 8, 2016. Id. ¶ 26.
Watkins eventually left the Clinton Street project because the individuals to whom he reported “told Rinaldi that they were not getting ‘the bang for their buck' anymore with [him].” Id. ¶ 34. Rinaldi consequently “moved Watkins . . . to the 120 Water Street project,” id. ¶ 35, to be the senior project manager (i.e., an onsite supervisor) for a “ground-up construction of a new hotel.” Id. ¶¶ 36, 59. The field office for the Water Street project was located “about one block away,” a five-minute walk from the jobsite itself, id. ¶¶ 41-42, so as to “provide a location where project managers can complete their paperwork requirements while also being present at the jobsite.” Id. ¶ 69. In his role as senior project manager, “Watkins was required to prepare a monthly statistical report (‘Monthly Report'), write scopes of work (‘Scopes'[ or ‘scope sheets']), help put together contracts, prepare leveling sheets, monitor and respond to daily issues on the project from company staff and contractors, coordinate with the various trades working on the project, and directly manage those operating day-to-day on the project.” Id. ¶ 61.
1. Watkins' Performance Issues
As Watkins admits, “[s]oon after [he] joined the 120 Water Street project, numerous performance issues emerged.” Id. ¶ 72. The first was tardiness. The site required someone to be “physically present . . . at 8:00 a.m. or 9:00 a.m. to manage the trades,” id. ¶ 80, and “project managers” need to “be present during business hours to manage their projects.” Id. ¶ 83. But “[f]rom Watkins' perspective,” and based on his experience, he did not “need to be told what time to come to work” because he “kn[e]w what need[ed] to be done, and [he] did it.” Id. ¶ 87. “Watkins' company time records indicate that he habitually arrived to work later than 8:00 a.m.,” id. ¶ 89, and “would sometimes . . . punch in after 10:00 a.m.” Id. ¶ 91. His supervisor “estimates that Watkins ‘would [arrive] late 50, 60, 70 percent of the time, almost [on an] everyday basis,'” id. ¶ 93, and so “began paying more attention to Watkins' tardiness,” id. ¶ 95, including by “address[ing] . . . lateness directly with [him].” Id. ¶ 97. But “Watkins did not think arriving earlier than his usual time was necessary.” Id. ¶ 101. “[H]e needed to get his blood checked” id. ¶ 102, and to “drop off his son at school every morning,” id. ¶ 103, although he did not ask for permission to arrive late because of the blood checks. Id. ¶ 102.
In addition to the issues discussed herein, defendants put forward facts related to Watkins' alleged technological shortcomings and his consequent reliance on coworkers for help navigating computer software, which Watkins disputes. See Counter Statement ¶¶ 173-85. Although defendants further submitted the declarations of Stephen Handlik, Ralph Fils-Aime, Andy Sindt, and a second declaration of Anthony Rinaldi to support these allegations, see Dkt Nos. 85-88; see also Defendants' Reply Memorandum of Law (“Def. Reply”), Dkt. No. 84, at 6-7, Watkins' technological prowess (or lack thereof) need not be considered in adjudicating the pending motion, and so those disputed facts will not be summarized here.
The second performance issue was related to paperwork requirements, of which there are many for project managers. See id. ¶¶ 181-82. Such “paper-generating requirements did not exist [i]n some of Watkins' past jobs,” id. ¶ 184, and “Rinaldi did not offer to train Watkins how to use technology necessary for his job because” Watkins never “admitted that he did[ not] have those abilities.” Id. ¶ 185.
“It was Watkins' ultimate responsibility to prepare and finalize” Monthly Reports, id. ¶ 133, which “contain[] a number of different logs and tracking mechanisms created to ensure the timely execution of the project.” Id. ¶ 114. “Rinaldi went months without receiving a single completed” Monthly Report, id. ¶ 119, and “began to pressure Watkins directly to meet the . . . deadline.” Id. ¶ 120. “When [Watkins] finally submitted a Monthly . . . Report, Rinaldi met with him via [video]conference to discuss it.” Id. ¶ 121. During the conference, Rinaldi noticed that two other project managers in the background “were snickering while compiling a binder,” id. ¶ 122, so he “conducted an investigation to determine what the two project managers were doing behind Watkins during the [video]conference, and why they were smirking at each other during a []conference that had nothing to do with their project.” Id. ¶ 125. “Based on this investigation, Rinaldi determined that Watkins [was] submitting the work of other project managers as his own [and that it] constituted misconduct.” Id. ¶ 130.
Watkins contests the statement at paragraph 122 of the Counter Statement in its entirety, citing to paragraphs 23 and 24 of the Declaration of Joseph Roger Watkins dated April 17, 2022 (“Watkins Decl.”), which assert that he “never submitted the work of other project managers as [his] own” and that he was “not provided with an assistant project manager.” Dkt. No. 90-1 ¶¶ 23-24. Those paragraphs do not controvert the fact that Rinaldi “could see . . . two project managers in the background behind Watkins snickering” at the meeting. Accordingly, the statement should be deemed admitted.
Watkins contests the statement at paragraph 130 in its entirety, citing to paragraphs 23 through 34 of the Watkins Declaration. While those paragraphs controvert the merits of the conclusions that Rinaldi drew, they do not controvert that upon investigation, Rinaldi came to a determination that Watkins was submitting others' work. Accordingly, the fact that Rinaldi determined after investigation that Watkins was “submitting the work of other project managers as his own” should be deemed admitted.
“Watkins also had problems producing scope sheets on time.” Id. ¶ 134. Scope sheets “describe the scope of work . . . to be completed by a subcontractor on a jobsite.” Id. ¶ 135. During March and April 2018, two of Watkins' supervisors sent him at least eight emails requesting that he send in missing scope sheets, which went unanswered. See id. ¶¶ 147-49, 150-52, 154-56. In one email dated March 22, 2018, Watkins' supervisor told him: “It has been more than 3 months since you ha[d] these two Trade Scope Sheet Checklists in your hands. Please send them over today.” Id. ¶ 154. Watkins did not respond to any of the emails, see id. ¶¶ 149, 151, 155, until April 16, when he wrote: “Sorry . . . I was in [the] hospital last week with pneumonia. I saw you [sic] email and will work on them.” Id. ¶ 156. Having received no scope sheets, Watkins' supervisor sent further email requests on May 3, May 7, May 14, and May 22. Id. ¶¶ 158-60, 162. On August 30, 2018, Watkins' supervisor emailed him: “This is for real now. Please send the scope sheet checklists for the rest of the trades.” Id. ¶ 166. Having received none, another supervisor emailed: “What happen[ed] to a commitment you made to produce one trade scope sheet a day!!!!!!! I need to line up the guys and I am finding out that you haven't completed even half of them. What is your plan?” Id. ¶ 167. Soon thereafter, the supervisor sent Watkins a “disciplinary warning”:
Watkins raises several objections to these paragraphs but does not controvert the existence or content of the emails quoted above.
Watkins does not indicate whether he contests this statement. It should therefore be deemed admitted. See, e.g., Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d Cir. 2003) (“If the opposing party . . . fails to controvert a fact so set forth in the moving party's Rule 56.1 statement, that fact will be deemed admitted.” (citations omitted)).
Nothing happened. You said you will work over the weekend. That did not happen either. You do not want to come to N.J. office. Are you capable of doing it and delivering them in the promised time? Looks like you are confused with your job responsibilities.... Are you a job super? What is your function there? I am tired of reminding you your duties to submit timely the required docs like, Requisition, processing the change orders, the scope sheets etc.... and it's a constant battle.Id. ¶ 171 (cleaned up).
Watkins does not indicate whether he contests this statement. It should therefore be deemed admitted.
Finally, Watkins had trouble interacting with coworkers. For instance, at a meeting in February 2018 with a “potential partner,” Id. ¶ 204, “Watkins interjected (in front of the project owner and its potential partner's staff) that one of the potential partner's representatives . . . was ‘stupid.'” Id. ¶ 205. “Rinaldi told him, ‘[y]ou didn't have to call him stupid.'” Id. ¶ 208.
On March 15, 2018, the safety site manager of the Water Street project sent an email to Rinaldi, explaining that “Watkins was attempting to cut him out of . . . secur[ing] various permits,” Id. ¶ 192, and that “[Watkins] has some anger management issues. For real.” Id. ¶ 189. On March 16, Rinaldi “wrote an email to the 120 Water Street staff members involved, including Watkins.” Id. ¶ 193. The email stated, in relevant part:
It appears that all of the things I have required of YOU Roger Watkins . . . have been disregarded, disrespected and completely ignored, and to have to receive an email like this from . . . one of MY MOST RESPECTED SITE SAFETY MANAGERS in this company, and to hear about the level of disrespect he is subjected to on a daily basis from the [p]roject [m]anagement . . . makes me absolutely furious. ...
I am going to call you out on this [Watkins]. When you were coming on board, I told you flat-out, my biggest concern was your long standing doing business at a Senior level with Harco, a company plagued with project fatalities and a history of willful misconduct relative to safety.... I told you of my concern. You assured me that such conduct unbecoming had nothing to do with your management style and that safety was a serious and significant concern of yours.
When I am receiving emails like this one below from our [senior site manager] on the Project, it tells me that ALL my prior concerns were real. ...
I will make terminations.... I have been purging this company of dead-wood, non-company-people and staff, and those who are simply cancerous within our firm. This current situation at 120 Water St.[] is cancerous. It tells me that I have rogue [m]anagement with little care and respect for [s]afety, which is the highest priority in this company.Declaration of Anthony T. Rinaldi dated February 3, 2022 (“Rinaldi Decl.”), Dkt. No. 78, Ex. B., DEF000394-95.
Watkins does not contest that an email was sent or the content of the email. See Counter Statement ¶¶ 193-98.
“During the Summer of 2018,” Counter Statement ¶ 238, Alan Reich, the “designated point of contact” for the realty group partnering with the Water Street project, id. ¶ 219, “spoke to Rinaldi numerous times about removing Watkins from the project.” Id. ¶ 238. “Rinaldi voiced some concern about removing Watkins at this phase, and he asked Reich to reevaluate when the next phase of the project would begin.” Id. ¶ 239. On August 23, 2018, Reich sent an email to Watkins and others working on the Water Street site, which began: “Same crap another day! We are paying to have men on site and get nothing done.” Id. ¶ 241. After Watkins replied, explaining that rain had gotten in the way of progress, the project architect replied to him: “I totally agree with [Reich's] email below. Your email below is just listing means and methods on how to deal with foundation issues. We do[ not] want to get involved with it, we just want to get this foundation done after [one] year and a half.” Rinaldi Decl., Ex. C., DEF001123.
Watkins contests the statement at paragraph 238 with a citation to paragraph 37 of his declaration, which states: “It was not out of the ordinary for Mr. Rinaldi to speak with me in person, so my only expectation is he wanted to talk about the project of the ongoing 120 Water Street project.” Watkins Decl. ¶ 37. This statement does not controvert anything relating to Rinaldi's conversations with Reich. Paragraph 238 of the Counter Statement should therefore be deemed admitted.
Watkins objects to the statement at paragraph 239 on the grounds that it “cannot stand on its own” because it begins with “but.” This objection is without merit, as the text excerpted above does stand on its own without “but.” The statement should therefore be deemed admitted.
Watkins objects to the statement at paragraph 241 based on characterization. The characterization in the statement is omitted from the excerpted text above.
2. Watkins' Termination
“On Tuesday, September 25, 2018, Watkins was supposed to attend a weekly meeting, and when he showed up eleven minutes early-at 1:49 p.m.-to an empty room[,] he emailed Reich and the project ownership: ‘I'm here . . . since 2:00 p.m. Are you attending the meeting today. Roger Watkins.'” Counter Statement ¶ 248. The following day, “[o]n September 26, 2018, Reich forwarded the email chain to Rinaldi to ‘reiterate [Reich's and Rinaldi's] concern of Roger [Watkins] continuing on the project.'” Id. ¶ 250. Reich added, “it's the time to plan on someone taking over as the [project manager].” Id. Rinaldi replied: “As promised, [Watkins] is being transferred out from the project as soon as [his supervisor] returns from vacation on Tuesday October 10, 2018.” Rinaldi Decl., Ex. D, DEF000954.
Rinaldi claims that he “decided it was time to terminate Watkins” upon removing him from the Water Street project. Counter Statement ¶ 256.According to Rinaldi, he had, “[a]t th[at] point, . . . seen enough.” Rinaldi Decl. ¶ 63. He “heard . . . that Watkins was not completing his paperwork on time, and he was repeatedly arriving late to work.” Id. He “was constantly fighting with Watkins to produce the Monthly Report.” Id. “[Watkins] had caused internal conflict with [the site safety manager],” and had “called one of [Rinaldi's] client's potential partners ‘stupid' during a project meeting.” Id. “Reich . . . demanded Watkins' removal.” Id. Rinaldi attests that he then had to find an opportunity to tell Watkins he would have to be let go, as he “like[s] to have these discussions face-to-face.” Rinaldi Decl. ¶ 65.
Watkins contests this statement by citing to Rinaldi's email reply to Reich, which promised that Watkins would be “transferred out from the project.” Rinaldi Decl., Ex. D, DEF000954 (emphasis added).
Watkins testified at his deposition that he “received the news” of his cancer diagnosis on the morning of October 2, 2018. Declaration of Ian-Paul A. Paulos dated February 3, 2022 (“Paulos Decl.”), Dkt. No. 83, Ex. F at 53:8-25 (Watkins Deposition); see also Counter Statement ¶¶ 267-68. On the same day, “Rinaldi called [Watkins] and asked [him] where [he] was.” Counter Statement ¶ 266 (cleaned up). Watkins replied that he was in an “owner's meeting,” id., a recurring meeting held regularly with Reich and other staff. See Paulos Decl., Ex. F at 57:1425. Watkins “was asked to wait for [Rinaldi]” after the meeting. Counter Statement ¶ 266. When the meeting ended, Watkins and Rinaldi met “in person nearby” the office where Watkins had just attended the meeting. Id. ¶¶ 266, 269. It was there that “Rinaldi told Watkins that he would be let go” Id. ¶ 270, and Watkins informed Rinaldi of his cancer diagnosis. Id. ¶ 271; Watkins Decl. ¶ 39.
Stephen Handlik, the assistant project manager and superintendent for the Water Street project, attests that that same morning, Rinaldi told him “that he was planning to terminate Watkins later that afternoon following the meeting [with the partner].” Declaration of Stephen Handlik dated May 13, 2022 (“Handlik Decl.”), Dkt. No. 88, ¶ 17. As discussed infra, while the Court may consider the Handlik declaration, the aforementioned statement is inadmissible hearsay and should therefore not be considered.
Watkins claimed that after the October 2 meeting, he “received a phone call on [his] cell phone from Mr. Rinaldi.... Rinaldi asked [him] where [he] was, and [Watkins] informed him that [he] was at the . . .[o]wners meeting. [Rinaldi] then directed [him] to wait for him there.” Watkins Decl. ¶ 36. The two met “across the street” from where the meeting took place. Id. ¶ 38.
According to Rinaldi:
[he] asked [Watkins] how the meeting went and then told him that he would be terminated as of October 5, 2018. (He no longer needed to come to the 120 Water Street Project, but [the team] needed him for an appearance in a[ ] . . . proceeding later the same week.) Immediately after [Rinaldi] told Watkins that he was terminated, he revealed that he was diagnosed with cancer earlier the same day. [Rinaldi] felt bad for him, so [he] told him that [he] would keep him on the Company's insurance after his termination, which is what the company ultimately did.Rinaldi Decl., ¶ 65.
According to Watkins, the conversation proceeded differently:
First, Mr. Rinaldi asked [Watkins] how the meeting went, and [he] briefly gave him an update. After giving him an update . . . [Watkins] said, ‘you know, by the way, I got to tell you that I got some unpleasant information this morning when I went to the hospital.' [He] then stated . . . ‘I have Kidney Cancer' . . . [and] showed Mr. Rinaldi a picture on [his] phone that depicted the scan showing the tumor in [his] kidney. The conversation continued as follows:
Mr. Rinaldi: Wow, I'm sorry to hear that.
Watkins: I need an operation right away.
Mr. Rinaldi: How long do you think you'll be out?
Watkins: Six to eight weeks, maybe a little longer.
Mr. Rinaldi: Well, I gotta let you go. I could not afford you to take that sick time. I have to terminate your employment.Watkins Decl. ¶ 39. Nonetheless, according to Handlik, the next time he saw him, Watkins “told [him] that he had just been diagnosed with cancer” and that “he responded to [his] termination by telling Rinaldi about his cancer diagnosis.” Handlik Decl. ¶ 18 (emphasis omitted).
Defendants submitted the Handlik declaration to rebut Watkins' contention that Rinaldi decided to fire him only after he learned of his cancer diagnosis. See Def. Reply at 7. While generally arguments may not be made for the first time on reply, district courts have broad discretion to rely on evidence submitted with reply papers. See, e.g., Kelly v. Times/Rev. Newspapers Corp., No. 14-CV-2995 (JMA) (SIL), 2018 WL 1701999, at *7 (E.D.N.Y. Feb. 15, 2018), adopted by 2018 WL 1701945 (Mar. 31, 2018). As discussed infra, the Court should consider the Handlik declaration as Handlik was identified in discovery and his declaration was submitted to rebut Watkins' allegations that Rinaldi decided to terminate him only after learning of his cancer diagnosis. See, e.g., Id. (“Defendant's reply brief and the medical records submitted therewith do not raise any new arguments, but instead respond to various factual assertions made . . . in opposition to the motion for summary judgment.”).
B. Procedural History
Watkins was granted the right to sue by the U.S. Equal Employment Opportunity Commission on July 10, 2019. Complaint (“Compl.”), Dkt. No. 1, ¶ 2. He then brought this action on September 11, 2019, alleging discrimination under the ADA, Id. ¶¶ 63-66; age discrimination under the Federal Age Discrimination in Employment Act (“ADEA”), Id. ¶¶ 67-69; retaliation under the ADEA, Id. ¶¶ 70-72; disability discrimination under NYSHRL, Id. ¶¶ 73-76; aiding and abetting age and disability discrimination under NYSHRL, Id. ¶¶ 77-79; retaliation for age discrimination under NYSHRL, Id. ¶¶ 80-82; age and disability discrimination under NYCHRL, Id. ¶¶ 83-85; aiding and abetting age and disability discrimination under NYCHRL, Id. ¶¶ 86-88; retaliation for age discrimination under NYCHRL, Id. ¶¶ 89-91; and vicarious liability for age and disability discrimination under NYCHRL, Id. ¶¶ 92-94. Defendants answered on December 27, 2019. See Dkt. No. 19.
Although defendants oppose Watkins' “accommodation claim,” see Def. Mem. at 13, Watkins did not plead failure to accommodate under any numbered cause of action, see Compl. ¶ 4 (reciting elements of failure to accommodate claim), ¶¶ 63-66 (discussing only “discharge[e]” under count for disability discrimination), nor did he discuss failure to accommodate in his opposition memorandum. See Pl. Mem. at 9 n.4 (mentioning “failure to accommodate” only once, while reciting a legal standard). As Watkins offered no factual allegations relating to failure to accommodate, there is no failure to accommodate claim to be adjudicated here. See, e.g., Minto v. Molloy Coll., No. 16-CV-276 (KAM) (GRB), 2019 WL 4696287, at *1 n.2 (E.D.N.Y. Sept. 26, 2019) (no need to discuss legal claim where not listed in “any numbered causes of action” and complaint “completely devoid of facts or allegations related to” it).
Following a lengthy discovery period, see Dkt. Nos. 27-57, and several extensions, see Dkt. Nos. 61-74, defendants moved for summary judgment on May 16, 2022, seeking to dismiss the complaint in its entirety. See Dkt. No. 75. Defendants subsequently filed: a memorandum of law (“Def. Mem.”), Dkt. No. 76; Local Rule 56.1 Statement, Dkt. No. 77; and declarations (the Rinaldi Declaration, Declaration of Devendra Dave dated February 2, 2022, Dkt. No. 79; Declaration of Frances Santos dated February 3, 2022, Dkt. No. 80; Declaration of Alan Reich dated February 2, 2022, Dkt. No. 81; Declaration of Tyler Brong dated February 2, 2022, Dkt. No. 82; and the Paulos Declaration, Dkt. No. 83). Defendants also filed a reply, Dkt. No. 84, and further declarations: of Andy Sindt dated May 13, 2022, Dkt. No. 85; Anthony Rinaldi dated May 16, 2022, Dkt. No. 86; Ralph Fils-Aime dated May 13, 2022, Dkt. No. 87; the Handlik Declaration, Dkt. No. 88; Ian-Paul A. Paulos dated May 16, 2022, Dkt. No. 89. On May 17, 2022, Watkins filed opposition papers, including the Counter Statement, Watkins Declaration, and memorandum of law. See Dkt. Nos. 90, 90-1.
Defendants submitted the Handlik, Fils-Aime, Sindt, and Rinaldi declarations with their reply memorandum to rebut Watkins' contentions that Rinaldi decided to fire him after he learned of his cancer diagnosis, he was behind on his paperwork because he “didn't have all the required information,” he knew how to use the “software necessary for his job,” and he “never submitted the work of others as his own.” Def. Reply at 7. As these individuals were disclosed in discovery and submitted to rebut Watkins' factual contentions, they are properly considered on defendants' motion. See Poulos Reply Declaration dated May 16, 2022, Dkt. No. 89, Ex. B.
The motion was referred to me for a report and recommendation on January 25, 2023. Dkt. No. 91.
II. DISCUSSION
As Watkins has withdrawn his age discrimination claims, see Pl. Mem. at 1, including any related retaliation claims, his remaining causes of action against defendants are as follows: discriminatory discharge under the ADA, 42 U.S.C. § 12112 et seq., NYSHRL, N.Y. Executive Law § 296 et seq., and NYCHRL, N.Y.C. Administrative Code § 8-107 et seq.; aiding and abetting under the NYSHRL and NYCHRL; and vicarious liability for disability discrimination under NYCHRL. Each is addressed below.
A. Legal Standards
1. Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure “allows a party to seek a judgment before trial on the grounds that all facts relevant to a claim(s) or defense(s) are undisputed and that those facts entitle the party to the judgment sought.” Jackson v. Fed. Express, 766 F.3d 189, 194 (2d Cir. 2014) (citation omitted). A motion for summary judgment will be granted “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).
“A dispute about a genuine issue exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor.” Bolling v. City of N.Y., No. 18-CV-5406 (PGG), 2021 WL 961758, at *4 (S.D.N.Y. Mar. 15, 2021) (quoting Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008)) (internal quotations omitted). “A moving party can demonstrate the absence of a genuine issue of material fact ‘in either of two ways: (1) by submitting evidence that negates an essential element of the non-moving party's claim, or (2) by demonstrating that the non-moving party's evidence is insufficient to establish an essential element of the non-moving party's claim.'” Id. at *5 (quoting Nick's Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 114 (2d Cir. 2017)).
“When considering a motion for summary judgment, the court is not to weigh the evidence but is instead ‘required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.'” Konteye v. N.Y.C. Dep't of Educ., No. 17-CV-2876 (GBD) (RWL), 2019 WL 3229068, at *2 (S.D.N.Y. July 18, 2019) (quoting Phillips v. DeAngelis, 331 Fed.Appx. 894, 894-95 (2d Cir. 2009)) (citation omitted). Though “courts are to be ‘particularly cautious' about granting summary judgment to employers in cases where the discriminatory intent of the employer is contested, ‘it is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases.”' Pacheco v. N.Y. Presbyterian Hosp., 593 F.Supp.2d 599, 608 (S.D.N.Y. 2009) (quoting Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001)) (cleaned up).
The “mere existence of a scintilla of evidence supporting the non-movant's case is insufficient to defeat summary judgment,” Wentworth Grp. Inc. v. Evanston Ins. Co., No. 20-CV-6711 (GBD) (JLC), 2021 WL 4479576, at *3 (S.D.N.Y. Sept. 30, 2021) (citing Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003)) (cleaned up), reconsideration denied, 2022 WL 943063 (Mar. 29, 2022), and “the non-moving party may not rely on unsupported assertions, conjecture or surmise.” Guerra v. Trece Corp., No. 18-CV-625 (ER), 2020 WL 7028955, at *2 (S.D.N.Y. Nov. 30, 2020) (citing Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995)); see also Ramnaraine v. Merrill Lynch & Co., No. 13-CV-7889 (GHW), 2014 WL 4386733, at *3 (S.D.N.Y. Sept. 5, 2014) (“Mere speculation or conjecture as to the true nature of the facts will not suffice, nor will wholly implausible alleged facts or bald assertions that are unsupported by evidence.” (cleaned up)), aff'd, 613 Fed.Appx. 83 (2d Cir. 2015). Rather, the party opposing summary judgment “must produce admissible evidence that supports its pleadings.” Wentworth Grp., 2021 WL 4479576, at *3 (citing First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289-90 (1968)); see also Jeffreys v. City of N.Y., 426 F.3d 549, 554 (2d Cir. 2005) (“[T]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986))); Cuffee v. City of N.Y., No. 15-CV-8916 (PGG) (DF), 2018 WL 1136923, at *4 (S.D.N.Y. Mar. 1, 2018) (A non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts . . . [it] must come forth with evidence sufficient to allow a reasonable jury to find in [its] favor.” (cleaned up)).
2. Burden-Shifting Framework
The applicable legal standard for disability discrimination claims brought under the ADA, NYSHRL, and NYCHRL is the three-part burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See, e.g., Nieblas-Love v. N.Y.C. Hous. Auth., 165 F.Supp.3d 51, 72-73 (S.D.N.Y. 2016) (“Disability discrimination claims under all three statutes are . . . analyzed using the burden-shifting scheme set forth in McDonnell Douglas.”). Under the McDonnell Douglas burden-shifting framework, the
plaintiff bears the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. The burden of production then shifts to the defendant, who must offer through the introduction of admissible evidence a non-discriminatory reason for its actions that, if believed by the trier of fact, would support
a finding that unlawful discrimination was not a cause of the disputed employment action. If the defendant meets this burden, the plaintiff then must show that the proffered reason was merely a pretext for discrimination, which may be demonstrated either by the presentation of additional evidence showing that the employer's proffered explanation is unworthy of credence, or by reliance on the evidence comprising the prima facie case, without more.Clark v. Jewish Childcare Ass'n, Inc., 96 F.Supp.3d 237, 248 (S.D.N.Y. 2015) (cleaned up).
B. Watkins' Discriminatory Discharge Claims Lack Merit
Both parties agree that on October 2, 2018, a conversation took place during which Watkins informed Rinaldi that he had been diagnosed with cancer and Rinaldi informed Watkins that he was to be terminated. See, e.g., Def. Reply at 3; Pl. Mem. at 2-3. Watkins' discriminatory discharge cause of action rests entirely on his assertion that he was terminated immediately after he informed Rinaldi of his diagnosis, and thus the termination was discriminatory. See, e.g., Id. at 3. Defendants refute Watkins' testimony and argue that, at any rate, the order of the statements made is immaterial for summary judgment purposes, as Rinaldi had decided to terminate Watkins before the October 2 conversation. See Def. Reply at 3. In the alternative, they argue that the facts, as presented by Watkins, do not give rise to an inference of discrimination, as Watkins' performance issues demonstrate that he was not otherwise qualified for his position and that defendants had a legitimate, non-discriminatory reason for terminating him, which Watkins cannot establish was pretextual. See id. at 4.
1. Watkins Has Failed to State a Prima Facie Case of Discriminatory Discharge Under the ADA or NYSHRL
Disability discrimination claims under the ADA and NYSHRL “are analyzed under the same standard.” Piligian v. Icahn School of Medicine at Mount Sinai, 490 F.Supp.3d 707, 716 (S.D.N.Y. 2020). The ADA defines “disability” as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” Berk v. Bates Advert. USA, Inc., No. 94-CV-9140 (CSH), 1997 WL 749386, at *4 (S.D.N.Y. Dec. 3, 1997) (quoting 42 U.S.C. § 12102(2)) (cleaned up). “[C]ancer constitutes an ‘impairment' under the ADA.” Id. “To set forth a prima facie case of disability discrimination based on an adverse employment action, a plaintiff must demonstrate by a preponderance of the evidence that (1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered [an] adverse employment action because of his disability.” Piligian, 490 F.Supp.3d at 716-17 (cleaned up). Defendants argue that Watkins cannot make out a prima facie case of discrimination because he was not otherwise qualified to perform the essential functions of his job and because his medical diagnosis was not the reason for his termination. See Def. Mem. at 4-5, 9. The Court agrees.
Amendments to NYSHRL made in 2019 apply to claims accrued after October 11, 2019, and thus not to Watkins' claims, as his last day of work was in 2018. See, e.g., Cardwell v. Davis Polk & Wardwell LLP, No. 19-CV-10256 (GHW), 2020 WL 6274826, at *40 (S.D.N.Y. Oct. 24, 2020) (amendments not applicable where plaintiff-employee's last day of work was in August 2018).
a. Watkins Was Not Otherwise Qualified to Perform the Essential Functions of his Position
“An employee is ‘qualified' for a position ‘only if []he can perform its essential functions.'” Maysonet v. Valley Nat'l Bank, No. 17-CV-3939 (RJS), 2019 WL 1368327, at *4 (S.D.N.Y. Mar. 25, 2019) (quoting McBride v. BIC Consumer Prod. Mfg. Co., 583 F.3d 92, 98 (2d Cir. 2009)). “Courts must conduct a fact-specific inquiry to determine whether job duties are essential in nature,” Daley v. Cablevision Sys. Corp., No. 12-CV-6316 (NSR), 2016 WL 880203, at *5 (S.D.N.Y. Mar. 7, 2016) (cleaned up), aff'd, 675 Fed.Appx. 97 (2d Cir. 2017), and afford “substantial deference to an employer's judgment as to whether a function is essential to the proper performance of a job.” Maysonet, 2019 WL 1368327, at *4 (quoting McBride, 583 F.3d at 98).
“Evidence of whether a particular function is essential includes, but is not limited to:
(i) The employer's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.29 C.F.R. § 1630.2(n)(3).
According to defendants, Watkins was demonstrably unable to perform the essential functions of his position because he “routinely arrived late to work in violation of Company policy without permission, . . . lied about his technological proficiency on his resume, . . . frequently miss[ed] deadlines[,] and inappropriately shift[ed] his work responsibilities onto other employees.” Def. Mem. at 5. According to Watkins, “[t]he fact that [he] stayed on the project for an extended period proves that he can perform the job's essential functions,” and “unsatisfactory performance does not equate to an inability to perform the job's essential functions.” Pl. Mem. at 10. Watkins further identifies skills and experience listed on his resume to support his contention that he could perform the essential functions of his position, see id. at 11-12, and avers that the essential functions of his position were “ill defined.” Id. at 11. Indeed, he claims that “[a]t no time was [he] given a detailed description of [his] role or responsibilities, and therefore, [he] relied on his extensive experience in the field and customary duties of a project manager to define [his] role, as would normally be expected of a project manager.” Watkins Decl. ¶ 16.
A court is not limited to a formal job description when determining the job's essential functions, see, e.g., Muller v. NAES Corp., No. 20-CV-2 (BKS) (TWD), 2023 WL 2165343, at *8 (N.D.N.Y. Feb. 22, 2023) (considering “job description, Plaintiff's own testimony, and Defendant's judgment”), and may consider the “employer's judgment” of what is essential. 29 C.F.R. § 1630.2(n)(3)(i). Moreover, the parties agree that Watkins “was required to prepare” Monthly Reports and Scopes, “help put together contracts, prepare leveling sheets, monitor and respond to daily issues on the project from company staff and contractors, coordinate with the various trades working on the project, and directly manage those operating day-to-day on the project.” Counter Statement ¶ 61.
Francis v. Wyckoff Heights Medical Center similarly concerned an employee claiming ADA discrimination whose employer argued that she was not “otherwise qualified” because of the “extensive and well documented record of her absenteeism” and repeated discipline for it leading up to her termination. 177 F.Supp.3d 754, 768-69 (E.D.N.Y. 2016). The court in Francis agreed that chronic absenteeism disqualified the plaintiff from her job, based on descriptions of the job itself, the plaintiff's own testimony, and “the very nature of her position.” Id. at 769. In doing so, the court rejected the plaintiff's argument that her employer “did not consider regular attendance an essential function because it tolerated her own absences” on the basis that her employer had “repeatedly . . . disciplined” her for her absenteeism. Id. at 770.
Here, the parties not only agree on the main requirements of Watkins' job, see Counter Statement ¶ 61, they agree that Watkins received repeated reprimands and warnings for his failure to meet those requirements. See, e.g., Id. ¶ 97 (Watkins' supervisor “addressed” his tardiness “directly”); Id. ¶ 171 (Watkins received a disciplinary warning for failure to send in scope sheets); Rinaldi Decl., Ex. B., DEF000394-95 (email from Rinaldi to Watkins warning that he “will make terminations”). Moreover, the record is replete with evidence of Watkins failing to meet his job requirements and receiving reprimands for such failures. Three of those failures stand out.
First, “[c]ourts generally agree that some degree of regular, predictable attendance is fundamental to most jobs.” Maysonet, 2019 WL 1368327, at *4 (internal quotation omitted) (citing cases). Watkins was required to be “physically present . . . at 8:00 a.m. or 9:00 a.m.” Counter Statement ¶ 80, and “during business hours” Id. ¶ 83, yet “company time records indicate that he habitually arrived to work later than 8:00 a.m.,” id. ¶ 89, “would sometimes . . . punch in after 10:00 a.m.,” id. ¶ 91, and Watkins' supervisor “estimate[d] that Watkins would [arrive] late 50, 60, 70 percent of the time, almost [on an] everyday basis.” Id. ¶ 93.
Second, “[i]t was Watkins' ultimate responsibility to prepare and finalize” Monthly Reports, Id. ¶ 133, yet “Rinaldi went months without receiving a single [one].” Id. ¶ 119. The same went for scope sheets-during March and April 2018, two of Watkins' supervisors sent him at least eight emails asking for them, see Id. ¶¶ 147-49, 151-52, 154-56, and Watkins eventually received a “disciplinary warning” for his failure to submit them. Id. ¶ 171.
Third, Watkins was reprimanded for his treatment of coworkers on the job. See id. ¶¶ 204-05; ¶ 208 (“Rinaldi told him, ‘You didn't have to call him stupid.'”); id. ¶ 193; Rinaldi Decl., Ex. B., DEF000394-95 (Rinaldi emailed Watkins: “to hear about the level of disrespect [the site safety manager] is subjected to on a daily basis from the [p]roject [m]anagement . . . makes me absolutely furious”); Rinaldi Decl., Ex. C., DEF001123 (project architect emailed Watkins: “We [do not] want to get involved with [the issues Watkins named], we just want to get this foundation done”).
To refute the assertion that he was unable to perform the essential functions of his job, Watkins points only to one example of praise he received from Rinaldi. See Pl. Mem. at 11 (citing Watkins Decl. ¶ 30 (“Mr. Rinaldi stated that the February 2018 Monthly Report that Watkins created is an excellent example and template for a monthly report that all Project Managers should follow.”)). This lone example does not counterbalance the weight of evidence pointing to Watkins' inability to competently perform the essential functions of his position.
In sum, Watkins' essential job requirements included being physically present to supervise the site, timely submitting Monthly Reports and Scope Sheets, and coordinating and managing operations of the Water Street project. See Counter Statement ¶ 61. The record belies any suggestion that defendants “tolerated” Watkins' poor performance, as he was “repeatedly . . . disciplined” for failing to meet those requirements. Francis, 177 F.Supp.3d at 770. “[T]he mere fact that [Watkins] was not finally terminated for [his underperformance] until [a later date] is woefully insufficient to demonstrate” that those requirements were not “essential.” Id. It thus cannot be disputed that Watkins was not otherwise qualified for his position and therefore he cannot make out a prima facie case of discrimination.
b. Watkins Was Not Terminated Because of His Disability
Even if he was otherwise able to perform the essential functions of his job (or there were, at least, issues of fact as to that subject), Watkins would still be unable to make out a prima facie case of discrimination because the record fails to demonstrate that he was terminated because of his disability. “At the very least, for there to be causation, the employer must have knowledge of the [employee's] disability.” Eccleston v. City of Waterbury, No. 19-CV-1614 (SRU), 2021 WL 1090754, at *6 (D. Conn. Mar. 22, 2021) (quoting Kolivas v. Credit Agricole, No. 95-CV-5662 (DLC), 1996 WL 684167, at *4 (S.D.N.Y. Nov. 26, 1996), aff'd, 125 F.3d 844 (2d Cir. 1997)). Watkins' position that he was discriminated against because of his cancer diagnosis relies entirely on his recollection of the order of statements made during his conversation with Rinaldi on October 2, 2018, which he argues creates a per se inference of discrimination based on “the temporal proximity between [his] disclosure of his cancer to Mr. Rinaldi and the termination.” Pl. Mem. at 4.
Defendants contend that Rinaldi actually decided to terminate Watkins on September 28, 2018, four days prior to learning of his cancer. See Def. Mem. at 8. Watkins counters that the record only shows that Rinaldi decided to transfer Watkins to a new site, not terminate him. See Rinaldi Decl., Ex. D, DEF000954 (“[Watkins] is being transferred out from the [p]roject”). To that argument, defendants respond with Handlik's declaration that when he saw Watkins after the October 2 conversation, Watkins “told [him] that he had just been diagnosed with cancer” and that, contrary to his declaration and deposition testimony, “he responded to [his] termination by telling Rinaldi about his cancer diagnosis.” Id. ¶ 18 (emphasis omitted).
What Watkins told Handlik is admissible as an admission under Fed.R.Evid. 801(d)(2). However, what Rinaldi told Handlik about Watkins' termination (and that he was planning to terminate him later that afternoon) is being offered for the truth of the matter asserted, and is thus hearsay and not admissible on this motion. Defendants provide no basis for the admissibility of this aspect of Handlik's declaration.
The decision in Kolivas is instructive of the outcome here. See 1996 WL 684167, at *4. In that case, an employee similarly argued that he was terminated on the basis of his disability because he notified his supervisor that he began treatments for depression the day before his termination was approved. See id. at *2. However, as with the case here, Kolivas' superiors had already set his termination in motion prior to his treatments. See id. at *1-2. The week prior, Kolivas had responded unprofessionally to a supervisor's performance evaluation, causing the supervisor to report to human resources that “she wanted [him] terminated.” Id. at *2. Kolivas then visited a psychiatrist “for the first time,” and informed his supervisor that “that he was seeing a psychiatrist, was being treated for depression, and was currently taking medication.” Id. The same day, the supervisor, aware of Kolivas' treatment, made a recommendation to human resources that he be terminated. Id.
Although Kolivas applied the higher evidentiary standard typically reserved for Rehabilitation Act plaintiffs, which requires a prima facie showing that the plaintiff was terminated “solely because of her disabilities,” 1996 WL 684167, at *3, that difference is “of no moment” here because Watkins has failed to establish that he was terminated “because of his disability” at all. Johnson v. St. Clare's Hosp. & Health Ctr., No. 96-CV-1425 (MBM), 1998 WL 213203, at *5 n.2 (S.D.N.Y. Apr. 30, 1998).
In granting summary judgment to the employer, the court rejected Kolivas' discriminatory discharge claim, concluding that the facts that Kolivas' supervisor “had already begun the process to fire” him and that human resources had “already reached an independent conclusion that that might be the appropriate course of action,” were “alone . . . sufficient to support a grant of summary judgment for the failure to establish a causal connection between the decision to terminate Kolivas and knowledge of any disabling condition.” Id. at *4. Likewise, Rinaldi “had already begun the process to fire” Watkins before their October 2 conversation and, based on Watkins' poor performance and requests from Reich, had “already reached an independent conclusion that that might be the appropriate course of action.” Id.
As the court in Kolivas explained, “a plaintiff may not rely solely on a request that the factfinder disbelieve testimony about when an employer made the decision to fire the plaintiff.” Id. The plaintiff must instead “offer . . . affirmative evidence to support a claim that a decisionmaker had knowledge of the disability when the decision to fire was made.” Id. Watkins' claim relies only on such a request, and he offers no affirmative evidence to controvert Rinaldi's testimony about when his decision was made. Ultimately, he must do more than “simply show that there is some metaphysical doubt as to the material facts,” Cuffee, 2018 WL 1136923, at *4, and he has failed to do so.
Moreover, Rinaldi explained what he meant when he told Reich that Watkins would be “transferred out from the [p]roject,” Rinaldi Decl., Ex. D, DEF000954, and his decision followed several conversations with Reich about Watkins' termination and warnings directed towards him related to his poor job performance. See, e.g., Counter Statement ¶ 238 (Reich “spoke to Rinaldi numerous times about removing Watkins from the project”); Rinaldi Decl., Ex. B, DEF000394-95 (Rinaldi warned Watkins in an email that he would “make terminations”). Additionally, there is nothing in the record demonstrating that Rinaldi promised Watkins he would be transferred (and there was no reason for Rinaldi to tell a client (Reich) whether his employee (Watkins) was going to be discharged or not).
In sum, Watkins' cancer diagnosis cannot have been the cause of his termination because, other than his own testimony, the evidence is undisputed that Rinaldi made the decision prior to learning of it. See, e.g., Matya v. Dexter Corp., No. 97-CV-763C, 2006 WL 931870, at *9 (W.D.N.Y. Apr. 11, 2006) (no prima facie ADA claim where “performance problems [were] well documented” prior to discharge), aff'd, 250 Fed.Appx. 408 (2d Cir. 2007).
Defendants further argue that the Court may, in these circumstances, “affirmatively evaluate” the credibility of Watkins' testimony regarding the October 2 conversation under Jeffreys, 426 F.3d at 554, as this is a “rare circumstance where the plaintiff relies almost entirely on his own testimony, much of which is contradictory and incomplete.” See Def. Reply at 6. As the record does not sustain Watkins' position that he was terminated only after he informed Rinaldi of his cancer diagnosis, the application of Jeffreys and its progeny need not be addressed.
2. Watkins Has Failed to State a Claim for Discriminatory Discharge Under NYCHRL
“Courts must analyze NYCHRL claims independently from any federal and state law claims.” Piligian, 490 F.Supp.3d at 717 (quoting Mihalik v. Credit Agricole Cheuvreux North America, Inc., 715 F.3d 102, 109 (2d Cir. 2013)) (brackets omitted). That is because “[t]he NYCHRL creates a lower threshold for actionable conduct and must be construed liberally in favor of discrimination plaintiffs, meaning that a defendant may be liable under the NYCHRL but not under state or federal statutes.” Id. (quoting Cain v. Esthetique, 182 F.Supp.3d 54, 71 (S.D.N.Y. 2016)).
The Court could alternatively “decline to exercise supplemental jurisdiction” over Watkins' NYCHRL claim upon deciding that all claims over which it had original jurisdiction will have been dismissed if this report and recommendation is adopted. 28 U.S.C. § 1367(c)(3); see also, e.g., Fitzgerald v. We Company, No. 20-CV-5260 (AT), 2022 WL 952963, at *10 (S.D.N.Y. Mar. 30, 2022) (“[w]here all federal-law claims are eliminated before trial, ‘the balance of factors to be considered under the pendent jurisdiction doctrine . . . point toward [a federal court] declining to exercise jurisdiction over the remaining state [and city] law claims.'”) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); citing Cohen v. Postal Holdings, LLC, 873 F.3d 394, 405 (2d Cir. 2017))).
Discriminatory discharge under NYCHRL requires the plaintiff to show, “by a preponderance of the evidence, . . . only that he was treated less well, at least in part for a discriminatory reason.” Id. at 717-18 (cleaned up). “The employer . . . is entitled to summary judgment . . . only if the record establishes as a matter of law that ‘discrimination played no role' in its actions.” Heiden v. N.Y.C. Health & Hosps. Corp., No. 20-CV-10288 (LJL), 2023 WL 171888, at *15 (S.D.N.Y. Jan. 11, 2023) (quoting Mihalik, 715 F.3d at 110 n.8) (brackets omitted).
Even under NYCHRL's lower standard, Watkins' discriminatory discharge claim still fails. First, although a “plaintiff's qualification for the position is not an element of a prima facie case” under NYCHRL, “but rather may be disproven by the employer as an affirmative defense[,] . . . district courts may still grant summary judgment with respect to NYCHRL claims if there is no genuine dispute as to any material fact regarding plaintiff's claim and the employer's affirmative defense.” Williams v. MTA Bus Co., 44 F.4th 115, 137 (2d Cir. 2022) (citing cases). As already discussed, there is no genuine dispute that Watkins was not “otherwise qualified” for his position, as he routinely showed up late, failed to complete required tasks, and was reprimanded repeatedly for such failures.
Second, Watkins has failed to plausibly allege-much less create a genuine issue of material fact-that “unlawful discrimination was one of the motivating factors,” even if it was not “the sole motivating factor” for his termination. Cardwell, 2020 WL 6274826, at *19 (cleaned up). As the record establishes, Rinaldi decided to terminate Watkins before learning of his cancer diagnosis; thus, it cannot have been one of the motivating factors behind the decision. See, e.g., Mathew v. N. Shore-Long Island Jewish Health Sys., Inc., 582 Fed.Appx. 70, 71 (2d Cir. 2014) (NYCHRL claim dismissed where plaintiff failed to provide evidence that employer “terminated him ‘because of' any reason other than his apparently falsified timesheets”); see also Bourara v. N.Y. Hotel Trades Council & Hotel Ass'n of N.Y.C., Inc. Emp. Benefit Funds, No. 17-CV-7895 (DF), 2020 WL 5209779, at *15 (S.D.N.Y. Sept. 1, 2020) (“NYCHRL claims are routinely dismissed at the summary judgment stage where the undisputed record demonstrates no issue of fact regarding whether Defendant's actions were motivated by discrimination.”), aff'd, No. 20-3092, 2021 WL 4851384 (2d Cir. Oct. 19, 2021); Beaton v. Metro. Transportation Auth. N.Y.C. Transit, No. 15-CV-8056 (ER), 2018 WL 1276863, at *6 (S.D.N.Y. Mar. 2, 2018) (“[N]one of the ADA, NYHRL, or NYCHRL immunizes disabled employees from discipline or discharge for incidents of misconduct in the workplace[.]” (cleaned up)). In sum, Watkins' NYCHRL claim should also be dismissed.
3. Watkins Was Terminated for Legitimate, Non-Discriminatory Reasons
Even if Watkins had made a successful prima facie showing of discrimination under the ADA, NYSHRL, or NYCHRL, his discriminatory discharge claim would still fail because the undisputed record reflects that he was terminated for his poor performance. It is axiomatic that poor performance is a legitimate, non-discriminatory reason for termination. See, e.g. Chukwurah v. Stop & Shop Supermarket Co. LLC, 354 Fed.Appx. 492, 495 (2d Cir. 2009) (“poor performance,” namely “consistently negative employment reviews” constituted legitimate, non-discriminatory reason); Dipinto v. Westchester Cnty., No. 18-CV-793 (PMH), 2023 WL 1438721, at *10 (S.D.N.Y. Feb. 1, 2023) (same for “unsatisfactory work performance”); Kho v. N.Y. & Presbyterian Hosp., 344 F.Supp.3d 705, 718 (S.D.N.Y. 2018) (same for “violations of various [employer] policies, as documented by . . . numerous complaints . . . and . . . resulting disciplinary measures”); Trane v. Northrop Grumman Corp., 94 F.Supp.3d 367, 377 (E.D.N.Y. 2015) (same where defendant “offer[ed] voluminous depositions, affidavits, and declarations from co- workers and supervisors attesting to Plaintiff's mediocre or unsatisfactory job performance, his combative behavior to co-workers and suppliers, and his unwillingness to accept corrections”), aff'd, 639 Fed.Appx. 50 (2d Cir. 2016). Defendants have provided voluminous records of sworn declarations and emails to support Rinaldi's testimony that Watkins was terminated not based on “discrete incidents of underperformance, hostility, and lateness,” as Watkins characterizes it, Pl. Mem. at 4, but because of his chronic poor performance-namely lateness, failures to submit required paperwork, and disputes with coworkers. As Watkins was terminated for legitimate, non-discriminatory reasons, and has offered no evidence of pretext, any discriminatory discharge claims should fail on this basis as well.
C. Watkins' Remaining Claims Should Be Dismissed
Watkins' remaining claims are for aiding and abetting under NYSHRL and NYCHRL and for vicarious liability under NYCHRL. For the following reasons, these claims should be dismissed.
As Watkins' remaining claims rely solely on state and local law, the Court could “decline to exercise supplemental jurisdiction” over them. 28 U.S.C. § 1367(c)(3). In any event, his remaining claims lack merit.
“Both the NYSHRL and the NYCHRL prohibit ‘aiding, abetting, inciting, compel[ling] or coerc[ing] the doing' of any unlawful acts of discrimination[.]” McHenry v. Fox News Network, LLC, 510 F.Supp.3d 51, 68 (S.D.N.Y. 2020) (quoting N.Y. Exec. Law § 296(6); N.Y.C. Admin. Code § 8-107(6)) (cleaned up). The same standard governs both claims “because the language of the two laws is virtually identical.” Id. (quoting Feingold v. N.Y., 366 F.3d 138, 158 (2d Cir. 2004)). Where, as here, “no violation of the Human Rights Law . . . has been established,” their related aiding and abetting claims will not survive. Bliss v. MXK Rest. Corp., 220 F.Supp.3d 419, 426 (S.D.N.Y. 2016) (quoting Strauss v. N.Y. State Dep't of Education, 26 A.D.3d 67, 73, 805 N.Y.S.2d 704 (3d Dep't 2005)).
Even if a violation had been established, “as a matter of law as well as logic, an individual cannot aid or abet his or her own violation of [either] Human Rights Law.” Id. at 426; see also, e.g., Xiang v. Eagle Enterprises, LLC, No. 19-CV-1752 (PAE), 2020 WL 248941, at *5 (S.D.N.Y. Jan. 16, 2020) (N.Y. Exec. Law § 296(6) applies where “defendant aided and abetted the unlawful discriminatory acts of others” (emphasis added)). As Watkins has alleged that all defendants aided and abetted based on a single interaction with Rinaldi, there is no room for Rinaldi himself (or any defendant) to aid and abet their own alleged violation (and Rinaldi is the only individual that Watkins accuses of discrimination). Thus, Watkins' aiding and abetting claims should be dismissed.
Watkins' claim for supervisory liability under NYCHRL should be dismissed as well. NYCHRL provides that “[a]n employer shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent.” N.Y.C Admin. Code § 8-107(13). As there has been no “unlawful discriminatory practice” under NYCHRL, any vicarious liability argument is meritless. See, e.g., Williams v. N.Y.C. Dep't of Education, No. 19-CV-1353 (MKV), 2021 WL 1178118, at *12 (S.D.N.Y. Mar. 29, 2021) (“[T]he supervisory liability claim under the NYCHRL cannot survive absent a primary violation of the NYCHRL discrimination provisions.”).
D. Defendants' Remaining Arguments Need Not Be Addressed
Finally, defendants argue that in the event that they would be liable for damages, they should be entitled to an adverse inference when calculating mitigation. See Def. Mem. at 27-29. As the Court recommends summary judgment in favor of defendants on several grounds, it need not address that argument here.
Defendants further contend that Watkins' claims against TRG must be dismissed, as he was only employed by ATR. See Def. Mem. at 26; Counter Statement ¶ 3. Having concluded that defendants are not liable for any of Watkins' claims, the Court need not reach this argument either. Moreover, Watkins does not oppose the argument, see Def. Reply at 2, and thus his claim against TRG should, in any event, be deemed abandoned. See, e.g., Ballard v. Children's Aid Soc'y, 781 F.Supp.2d 198, 211 (S.D.N.Y. 2011) (NYCHRL claims abandoned where plaintiff “failed to respond to Defendants' arguments”).
III. CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment should be granted in its entirety.
PROCEDURE FOR FILING OBJECTIONS
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. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Paul G. Gardephe, United States Courthouse, 40 Foley Square New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Gardephe.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).