| Lambert v Macy's E., Inc. |
| 2010 NY Slip Op 52434(U) [34 Misc 3d 1228(A)] |
| Decided on April 30, 2010 |
| Supreme Court, Kings County |
| Rothenberg, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Anthony Lambert,
Plaintiff,
against Macy's East, Inc., Federated Department Stores, Inc., Maryanne Cadmus, and Cindy Coulson, Defendants. |
The following papers numbered 1 to 8 read on these motions:
Papers Numbered
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed1-2 3-4
Opposing Affidavits (Affirmations)6
Reply Affidavits (Affirmations)
[*2]
Affidavit (Affirmation)
E N T E R,
J. S. C.
Other Papers Memoranda of Law5, 7, 8
Upon the foregoing papers, defendants
In a separate second motion, defendants also move for an order, pursuant to CPLR
2004 and 3212 (a), granting an extension of time to serve a late motion summary judgment.
Plaintiff Anthony Lambert (Lambert) is
an African American male who was twenty seven years old in 1999 when he began working at
Macy's as an Operations Manager in the Security Division (an entry-level management position).
Previously, he worked at Lord and Taylor, another major department store, where he was
responsible for payroll and managing employees. Plaintiff alleges that during his employment at
Macy's he was subjected to discriminatory policies and practices based on his race and/or color.
According to Lambert, some of the Caucasian executives at Macy's told racial jokes and uttered
racial slurs in Lambert's presence,[FN2] while others ignored and refused to interact
with him, treated him hostilely, and/or spoke to him in a belittling and demeaning manner.
In or about March 2000, Lori Young (Young), a Caucasian woman, his direct
supervisor, and one of the Directors of Operations, resigned from employment. Prior to being
made Director of Operations, Young was Operations Manager for six months, in the same
position that plaintiff held. Lambert had repeatedly asked Cadmus, another supervisor who was
also Caucasian, whether he could apply for the Director of Operations position. Each time,
Cadmus told him that the reason he could not be promoted to Director of Operations was because
he had not received payroll training, which allegedly only she could provide for him.[FN3] Lambert avers that he was
unaware of any other means of applying for the job. Nevertheless, he claims that, as Operations
Manager, he still performed most of the Director of Operations duties, except for payroll
functions.
[*3]
In September 2000, Macy's hired Dominic
Trocchia (Trocchia), a Caucasian male, as the new Director of Operations. Prior to being hired by
Macy's, Trocchia had worked only in law enforcement and private security. Lambert avers that he
spent considerable time training Trocchia to perform the Director of Operations duties. Cadmus
also provided Trocchia with the requisite payroll training for the job. When Trocchia resigned
approximately six months later due to difficulty making the transition from law enforcement to
the retail industry,[FN4]
Lambert again asked Cadmus if he could be promoted to Director of Operations, but was again
told that he lacked the necessary payroll training. When he requested that she provide this
training, she continually refused, allegedly without reason. Macy's then hired Coulson, a
Caucasian female, to be the new Director of Operations. Lambert claims that he trained Coulson
to perform the job as well.
Shortly thereafter, Cadmus approached Lambert with an offer to accept a job as a
Civil Recovery Manager, which she explained was not a demotion, but rather a lateral transfer.
Lambert told her he was not interested in the transfer. Subsequently, Brian Fuller (Fuller), a
Caucasian male who was the Director of Security Administration, also asked Lambert to accept
job as the Civil Recovery Manager as a "big favor" to him because Lambert was the only person
who could succeed in that role, given his success as Operations Manager. When plaintiff told
him he had no experience in Civil Recovery, Fuller assured him he would receive the training
necessary to be successful. Lambert ultimately accepted the transfer as a favor to Fuller, based on
Fuller's assurances, and after conferring with Cadmus, who told him that the job was
approximately 90-95% finance-related.
However, Lambert avers that as soon as he started working as Civil Recovery
Manager, Fuller asked Lambert to finish projects left incomplete by his predecessor, rather than
providing him with necessary training. He asserts that even though he repeatedly asked Fuller
and Coulson for training in Civil Recovery, they refused to do so.[FN5] Lambert claims that the position was not
finance-related at all, he had no training or experience for the position, and was forced to learn
the job skills of Civil Recovery on his own.
While working as Civil Recovery Manager, Lambert reviewed statistics pertaining to
individuals that Macy's detained for theft and/or shoplifting and noticed that over 90% of [*4]those individuals were non-Caucasian. Thomas Roan (Roan), the
Vice President of Security at Macy's, explained that all the arrests were justified (see
Transcript of Thomas Roan, annexed as Exhibit E to plaintiff's opposition papers, at 213-216).
Lambert alleges that he directed his complaints about such alleged racial discriminatory practices
to Mitch Borger (Borger), the in-house counsel at Macy's, but Borger allegedly did nothing to
address them.[FN6]
In March 2002, Fuller informed Lambert that he was forced to place him on "written
caution," despite never having received any criticism of his performance as Civil Recovery
Manager. When plaintiff questioned the designation, Fuller allegedly thought it was unfair and
did not think Lambert deserved it, but Cadmus had told him he had no choice. Cadmus had
purportedly attempted to place Lambert directly on "written warning," but the customary policy
at Macy's is to first place an employee on caution before placing him or her on warning.
According to the written caution document (annexed as Exhibit 10 to defendants' moving
papers), which Lambert refused to sign, Lambert had problems understanding the scope and
responsibility of his position and needed to improve his communication and prioritization skills.
When Fuller resigned from employment in June 2002, Coulson became Lambert's
supervisor and placed him on "written warning" in early July, despite being his supervisor for
only a couple weeks. When plaintiff asked why he was placed on warning, Coulson was
allegedly unable to answer. According to Cadmus' deposition testimony, Lambert's performance
as Operations Manager was mediocre.
On July 12, 2002, plaintiff filed a written complaint with Macy's Human Resources
department against both Cadmus and Coulson, claiming that they had harassed him and created a
hostile work environment (the July 2002 Complaint). The Human Resources representative who
investigated Lambert's complaint, Jennifer Tejada (Tejada), informed him that the complaint was
insufficient because it did not include examples, but did not tell him that he needed to include
every instance of harassment and/or discrimination. Plaintiff amended his complaint to include
the most recent example of harassment, but did not mention any racial jokes or slurs by his
supervisors or co-workers. After interviews with Lambert and Cadmus, who plaintiff had
identified as one of his harassers, Tejada determined that the complaint was unsupported.
[*5]
Lambert was taken off warning status in January
2003, six months after he was given that designation.[FN7] Nevertheless, in 2003 Lambert was given what
he called a "discriminatorily harsh review" for his performance at work during the year
2002.[FN8] He alleges that
the review contained criticisms he had never received before and did not acknowledge any of his
successes as Civil Recovery Manager. As a result of the adverse review, Lambert did not receive
a raise from Macy's.
Lambert then requested to see his employment file and was shocked to see that his
maximum salary as a Civil Recovery Manager was now listed at $50,000, rather than a maximum
of $62,000 in his previous position as Operations Manager. Defendants, however, indicate that
Lambert's master employment sheet (annexed as Exhibit 7 to defendants' moving papers)
confirms that the two jobs were the same grade and that Lambert's potential maximum salary was
in fact increased from $50,000 as an Operations Manager to $60,000 when he became a Civil
Recovery Manager.In May 2003, Lambert met, for the first time, attorney, Ken Thompson
(Thompson) at a press conference that Thompson was holding outside the Macy's Herald Square
store for a client who had alleged federal racial discrimination claims against Macy's. Lambert
alleges that Larry Sechuk (Sechuk) and Doug Howard (Howard), two high-level Macy's
executives, asked him to "spy" on this press conference and that, after the press conference, they
requested that he change data in the company's security systems relevant to the federal lawsuit.
Plaintiff refused to alter the database and notified both legal staff at Macy's and the New York
Attorney General.
In June 2003, Lambert filed another written complaint (the June 2003 Complaint)
with the Human Resources department regarding Macy's alleged discriminatory practices,
including the apparent discrimination against shoplifters reflected in the arrest statistics. The
complaint did not mention any racial jokes or slurs made by Macy's employees. Chris Meier
(Meier), a Caucasian woman and the Vice President of Human Resources, and Tejada each
interviewed plaintiff on separate occasions about the complaint. Meier also interviewed Cadmus,
Coulson, and Joseph Corbett, the employee who assumed Cadmus' position when [*6]she transferred to another store. Meier told Lambert she would
inform him of updates with the investigation, but purportedly did not do so.
Due to Macy's alleged refusal to address his discrimination complaints, Lambert
asked to be transferred out of the Security Division into another managerial position. He was first
offered an Auditor position, which required walking the floors of Macy's, but he declined
because it was not an executive-level position and, as he avers, was a demotion. Several weeks
later, Macy's offered him an Energy Analyst position, which Lambert avers was also a
demotion.[FN9] Lambert
claims he was forced to accept the transfer because Macy's continued to refuse to address his
discrimination complaint and he felt like he could no longer work in the Security Division.
In October 2003, he asked Meier whether Macy's had taken any action in response to
his discrimination complaint because he had not received any update from her in months. Meier
purportedly replied that after his transfer, she had assumed that the matter had been resolved and
had closed the investigation. According to Meier, she did not assume that the matter was
resolved, but had instead concluded that he was not qualified for the director position because of
his inconsistent performance. As a result of this incident and the other discriminatory conduct
plaintiff allegedly experienced, plaintiff avers he felt he could no longer work at the company
and was forced to resign from his employment at Macy's.
Lambert commenced this action on August 18, 2005, asserting various claims in
violation of New York State Human Rights Law (NYSHRL), Executive Law §§ 290, et
seq and New York City Human Rights Law (NYCHRL), Administrative Code of City of NY
§§ 8-101, et seq for racial discrimination and harassment, constructive discharge, hostile
work environment, retaliation, and punitive damages. Plaintiff also articulates claims against
Cadmus and Coulson, individually, for aiding and abetting racial
discrimination, harassment, and retaliation.
Defendants argue that they are entitled to summary
judgment dismissing the Complaint because the evidence does not support a finding that Lambert
was adequately qualified to perform the Director of Operations position, that he suffered any
adverse employment action, that the conduct of Macy's Caucasian superiors and employees were
motivated by race, and that the rationale for decisions made by Caucasian superiors and
employees at Macy's were mere pretext. They further maintain that there is no evidence or other
basis for Lambert's claims for harassment, retaliation, or punitive damages. Finally, they aver that
claims against Macy's parent company, Federated, should be dismissed because Lambert did not
allege any wrongdoing or involvement by that entity and Federated is not vicariously liable
because Lambert failed to demonstrate that it had knowledge of or acquiesced in the
discriminatory conduct of its employee(s).
[*7]
In a separate motion,[FN10] defendants also seek an extension of time to
serve their summary judgment motion, arguing that there is good cause for their counsel's delay.
Specifically, counsel James G. McCarney (McCarney) affirms that he was not familiar with the
case when his partner, William R. Martin (Martin), asked him to assist with the preparation of
the instant summary judgment motion.[FN11] McCarney states that his work on the motion
was delayed and he was unable to meet the October 26, 2009 deadline because he had to assist in
caring for his 81 year-old father, who had become critically ill.[FN12] Once McCarney finished drafting and
forwarded the motion and accompanying memorandum of law to Martin for review, Martin was
involved in final preparation for a two-week federal criminal jury trial. Nevertheless, Martin
completed his review of the motion papers, whereupon they were served on plaintiff's counsel on
November 2, 2009 — one week after the original deadline. Defendants maintain that they
did not seek to delay the proceedings, nor was plaintiff prejudiced by the brief delay.
Furthermore, they indicate that trial has not yet been scheduled and is not imminent.
Plaintiff opposes defendants' summary judgment motion (and the subsequent motion
for an extension) on the ground that it is procedurally defective because the summary judgment
motion was served more than 60 days after the Note of Issue was filed on August 25, 2009.
Plaintiff also argues that defendants' motion must be denied because, as the record demonstrates,
(1) Lambert possessed the necessary qualifications and had attained excellent performance at the
job, both of which were necessary to carry out the role of Director of Operations; (2) he suffered
adverse employment actions because, inter alia, defendants failed to promote him to
Director of Operations, prevented him from receiving the requisite payroll training, and issued
him unwarranted negative performance evaluations; (3) an inference of discrimination based on
race and/or color may be drawn from defendants' disparate treatment of plaintiff and Caucasian
employees; and (4) defendants' purported basis for its discriminatory conduct towards Lambert is
pretextual.
Moreover, plaintiff contends that triable issues of fact remain with respect to the
intolerable working conditions that compelled him to resign, the pervasive discriminatory
conduct that created a hostile work environment, and the subsequent backlash from his
complaints about racial discrimination/harassment that forms the basis for his retaliation [*8]claim. Plaintiff additionally maintains that NYCHRL affords
broader protection to employees who are subjected to unlawful discrimination and/or harassment
than federal or state human rights laws, and urges the imposition of punitive damages against
defendants. Finally, plaintiff argues that summary judgment dismissing Federated from the action
is inappropriate because Federated and Macy's operated as part of a single integrated enterprise.
In reply, defendants argue, inter alia, that the evidence does not support
plaintiff's claims for racial discrimination, constructive discharge, hostile work environment, or
retaliation. They claim that they have good cause for the de minimis delay in serving their
summary judgment motion. Defendants also detail the professional backgrounds of Trocchia and
Coulson, who plaintiff alleges that Macy's chose to hire over him, based on race and/or color, and
explain that plaintiff voluntarily transferred to positions with responsibility beyond clerical tasks
and which actually carried a higher potential maximum salary. Furthermore, they assert that the
record is devoid of any evidence that any ill will or lack of professionalism toward Lambert by
Macy's employees was the result of race-based animus or was a pretext for their actions.
Summary
judgment should only be granted where there are no triable issues of fact (see Sillman v
Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The moving party on a
motion for summary judgment has the burden of demonstrating "a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any
material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d
851, 852 [1985]). Once the movant has made this showing, the burden of proof shifts to the party
opposing the motion to produce evidentiary proof in admissible form to establish that material
issues of fact exist which require a trial (see Alvarez v Prospect Hosp., 68 NY2d 320,
324 [1986]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or
assertions are insufficient" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
The evidence presented on summary judgment must be scrutinized in the light most favorable to
the party opposing the motion (Goldstein v Monroe County, 77 AD2d 232, 236
[1980]). Accordingly, "[i]f there is any doubt about the existence of a triable
issue of fact, or a material issue of fact is arguable, summary judgment should be denied"
(Celardo v Bell, 222 AD2d 547, 547 [1995]).
As a preliminary matter, the Court first
addresses the timeliness of defendant's motion for summary judgment. Generally, in the absence
of a court order or rule to the contrary, a motion for summary judgment must be made "no later
than one hundred twenty days after the filing of the note of issue, except with leave of court on
good cause shown" (CPLR 3212 [a]). Rule 13 of the Uniform Civil Trial Rules of the Supreme
Court, Kings County (now Rule 6 of Part C, amended Jan. 14, 2010), additionally provides that
"[n]o motion for summary judgment may be made more than 60 days after filing a Note of Issue .
. . except with leave of the Court on good cause shown" (see e.g. Weitzner v Elazarov,
189 Misc 2d [*9]646 [2001]). A motion is deemed "made" when
the motion is served (see Perez v City of New York, 2009 NY Slip Op 51196[U], *1
[2009], citing Rivera v Glen Oaks
Village Owners, Inc., 29 AD3d 560 [2006]; see also CPLR 2211). Trial courts
have broad discretion to determine whether good cause exists to grant leave to file a late
summary judgment motion (see
Filannino v Triborough Bridge & Tunnel Auth., 34 AD3d 280, 283 [2006]; see also
Goodman v Gudi, 264 AD2d 758, 758 [1999] ["a court is afforded latitude with respect to
determining whether good cause exists for permitting late motions for summary judgment"]).
However, unless there is a showing of good cause, courts have no discretion to entertain
non-prejudicial, meritorious, post-note of issue motions (see Corchado v City of New York, 64 AD3d 429, 429 [2009], citing Brill v City of New York, 2
NY3d 648 [2004]; Glasser v
Abramovitz, 37 AD3d 194 [2007]). Good cause requires "a satisfactory explanation for
the untimeliness-rather than simply permitting meritorious, nonprejudicial filings, however
tardy" (Brill, 2 NY3d at 652).
Defendants' mislabeled "cross motion," made against its own motion for summary
judgment and belatedly seeking leave to serve a late motion for summary judgment, was filed
nearly four months after it served the untimely motion. However, in considering defendants'
application, the Court finds that defendants' explanation that the delay in serving the summary
judgment motion was due to a family emergency, coupled with his partner's active preparation
for a trial, constitutes good cause (see
Stimson v E.M. Cahill Co., 8 AD3d 1004 [2004] [trial court erred in not considering
late summary judgment motion where family emergencies of lawyer and his secretary requiring
both of them to be out of the office on last day of deadline]; Luciano v Apple Maint. &
Servs., Inc., 289 AD2d 90 [2001] [trial court erred by not excusing six day delay in filing a
summary judgment motion due to illness of counsel's two children]). Moreover, the one-week
delay was minimal and there was no prejudice to plaintiff (see Lambadarios v Kobren,
191 Misc 2d 86, 87 [2002], citing Miranda v Devlin, 260 AD2d 451 [1999]). Given the
good cause established in defendants' papers, defendants' "cross motion" seeking leave to serve a
late summary judgment motion is granted. The Court thus herein entertains defendants' untimely
motion for summary judgment.
The standards for recovery for racial
discrimination and/or harassment under the NYSHRL, Executive Law § 296, and the
NYCHRL, Administrative Code §§ 8-101, et seq, are the same as the federal
standards under Title VII of the Civil Rights Act of 1964 (see 42 USC § 2000-e [2],
et seq.; Forrest v Jewish Guild
For the Blind, 3 NY3d 295, 305 [2004]; Ferrante, 90 NY2d 623). A plaintiff
alleging racial discrimination in employment has the initial burden to establish a prima facie case
of discrimination (see Forrest, 3 NY3d at 305). To meet this burden, a plaintiff must
show that (1) he or she is a member of a protected class; (2) he or she was qualified to hold the
position; (3) he or she suffered an adverse employment action; and (4) the discharge or other
adverse action occurred under circumstances giving rise to an inference of discrimination
(id., citing Ferrante v American Lung Assn., 90 NY2d 623 [*10][1997]). The burden then shifts to the employer "to rebut the
presumption of discrimination by clearly setting forth, through, the introduction of admissible
evidence, legitimate, independent, and nondiscriminatory reasons to support its employment
decision" (Forrest, 3 NY3d at 305, citing Ferrante, 90 NY2d 623). If the evidence
rebuts the presumption of discrimination, plaintiff must then prove that such reasons were
"merely a pretext for discrimination by demonstrating both that the stated reasons were false and
that discrimination was the real reason" (Harrison v Chestnut Donuts, Inc., 60 AD3d 1130, 1132 [2009],
citing Forrest, 3 NY3d at 305).
To succeed on a motion for summary judgment, defendants must demonstrate either
plaintiff's failure to establish every element of intentional discrimination, or, having offered
legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue
of fact as to whether their explanations were pretextual (see Forrest, 3 NY3d at 305).
Here, the first element, that Lambert is an African American man, is not in dispute. However,
defendants contest plaintiff's qualifications for Director of Operations, his allegations that he
suffered an adverse employment action, and his assertion that defendants' unfair and
discriminatory treatment towards him were based on race.
Defendants successfully demonstrate a prima facie showing that plaintiff did not
establish all the elements of his discrimination claim by arguing that Trocchia and Coulson were
better qualified than Lambert for the Director of Operations position; that there was no
"materially adverse change in the terms and conditions of [plaintiff's] employment"
(Forrest, 3 NY3d at 306); and that no racial animus could be inferred from defendants'
conduct. They justify their favorable treatment of other candidates for the Director of Operations
position by proffering documentation, including resumés, of Trocchia's and Coulson's
previous experience in, respectively, security management and retail security. Lambert, in
contrast, lacked such experience as well as a college degree. They also highlight deposition
testimony from Cadmus attesting to Lambert's underdeveloped managerial skills and security
knowledge (see Cadmus Transcript at 176-177, 181-182). As to the absence of an
adverse employment action, defendants submit, inter alia, testimonial evidence that
plaintiff voluntarily accepted transfers to Civil Recovery Manager and Energy Analyst —
lateral moves carrying the same salary level as his previous positions at the time of those
transfers, with room for growth and increased responsibilities. They additionally point to the lack
of any factual or evidentiary basis for Lambert's claim that defendants' treatment was race-based
or that defendants' rationales were pretextual.
In arguing that defendants' purported basis for its alleged discriminatory conduct was
pretextual, plaintiff highlights the fact that Young had been an Operations Manager for only six
months when she was promoted to Director of Operations, but plaintiff had already been an
Operations Manager for nine months when Trocchia was promoted to that same position over
him. However, the Court cannot find that Lambert was qualified for the job simply because he
spent a longer time working as an Operations Manager. Nor does the spent time "training"
Trocchia, who did not possess any prior experience in the retail industry, and [*11]Coulson, whose college degree was in an unrelated field,
conclusively determine his qualifications. Defendants indicate that, unlike Lambert, both
Trocchia and Coulson had several decades of experience overseeing a large number security
employees in various capacities. Moreover, defendants specifically identified areas of Lambert's
work performance that were sub-par and that he needed to improve. Given such deficiencies,
plaintiff's allegations are insufficient to raise a triable issue of fact regarding his qualifications for
the job (see Bellamy v City of New
York, 14 AD3d 462, 463 [2005] [plaintiff failed to rebut defendant's evidence on
summary judgment demonstrating that he was not qualified to become a police officer]; see
also Kearney v County of Rockland, 373 F Supp 2d 434, 444 [SDNY 2005] [plaintiff could
not overcome defendant's evidence that her work was standard at best and that her supervisors
considered her generally uncooperative and difficult to communicate with]).
Plaintiff also fails to raise triable issues relating to adverse employment actions
based on allegedly unwarranted negative performance reviews as well as defendants' failure to
promote him to Director of Operations or provide him with training as Civil Recovery Manager.
As defendants indicate, although Macy's did not send Lambert to the one-time Atlanta training to
which they sent Toner (which was not available or offered on additional occasions), they
provided him with on-the-job training and the materials necessary to perform his
position.[FN13]
Defendants also stated that they gave Lambert lower review ratings and placed him on
caution/warning because, among other things, plaintiff was not sufficiently knowledgeable about
Macy's systems, refused to participate in regional conference calls, and failed to update Fuller on
certain matters. Similarly, given the Macy's Employment Data Form for Lambert reflecting
maximum salaries for Civil Recovery Manager and Energy Analyst that were actually higher than
the salary for Operations Manager (annexed as Exhibit 7 to defendants' moving papers), the
Court does not find triable issues regarding whether Lambert's new positions were demotions that
constituted adverse employment actions (see White v Fuji Photo Film USA, Inc., 434 F
Supp 2d 144, 152-153 [SDNY 2006]; Mishk v Destefano, 5 F Supp 2d 194, 202 [SDNY
1998]). Although plaintiff changed his position, title, and duties, it cannot be said, based on the
evidence, that plaintiff experienced any actionable, detrimental, and substantial change of
employment (Bernheim v Litt, 79 F3d 318, 327 [2d Cir 1996, J. Jacobs, concurring]),
especially since the transfers apparently increased his potential maximum salary.[FN14]
[*12]
The only basis on which plaintiff arguably
raises an issue of fact regarding whether he suffered an adverse employment action is defendants'
alleged failure to thoroughly investigate his complaints of racial harassment and/or harassment.
Even though Lambert also made allegations against Coulson and additionally identified
witnesses to these alleged discriminatory events, Tejada interviewed only Cadmus in response to
Lambert's July 2002 Complaint (see Cioffi v New York Community Bank, 456 F Supp
2d 202 [EDNY 2006] [where employer did not interview eyewitness during its investigation of
plaintiff's discrimination complaint, investigation was deemed inadequate and incomplete]).
However, the fact that Lambert cannot adequately articulate an evidentiary basis for
his allegations of racial animus is dispositive. For example, nowhere in his July 2002 Complaint
does Lambert identify race as a basis for his concerns of harassment (see Exhibits 14 and
15 to plaintiff's opposition papers). Lambert calls Cadmus and Coulson "unfailingly responsive
and professional" to Caucasian employees, but his deposition testimony cited in support of that
allegation reflects nothing more than his frustration over difficult or failed communication efforts
with his superiors. Plaintiff also does not allege that any of his decision-making supervisors
uttered any racially derogatory comments, whether in relation to his transfers, being placed on
caution/warning, or alleged refusals to promote him. His reliance on allegedly discriminatory
shoplifting statistics is similarly misplaced, as they pertain to external, non-employee individuals
and do not relate to the decisions his superiors made about him, other employees at Macy's,
and/or his working conditions.
Although Lambert alleges that Bragg told racial jokes and slurs in his presence,
Bragg played no role in making any of the adverse employment decisions that he complained of
(see Lambert Transcript at 69-72). Lambert also did not notify anyone at Macy's about
the alleged racial jokes because they were "not a work related issue" (Id. at 71; see
also Bass v NYNEX, 2004 WL 1941088, *7 [2004] [no evidence offered to raise material
issues of fact where, inter alia, plaintiff did not report the remarks of alleged racial
discrimination]). Moreover, Lambert admits that the incidents always took place behind closed
doors, without any witnesses, and Lambert admitted in deposition that he could not produce the
notes he purportedly took regarding the racial jokes (see Lambert Transcript at 47-55).
The Court finds that plaintiff has not rebutted defendants' showing of legitimate and
lawful employment decisions with evidence of pretext. No triable issues of fact remain with
regard to whether defendants were motivated by any racial animus (see Morse v Cowtan & Tout, Inc., 41
AD3d 563, 563-564 [2007]). Thus, this branch of defendants' motion for summary judgment
seeking dismissal of the racial discrimination and harassment claim under the NYSHRL should
be granted. The Court similarly must grant summary judgment dismissing plaintiff's
corresponding claim under the NYCHRL, as it cannot be said that Lambert has established "by a
preponderance of the evidence that [he] has been treated less well than other employees" due to
unlawful discrimination (Williams v New York Hous. Auth., 61 AD3d 62, 78 [2009];
see also Administrative Code § 8-107 [1] [a]).
(a)
A hostile work environment claim exists "[w]hen the workplace is permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter
the conditions of the victim's employment and create an abusive working environment"
(Forrest, 3 NY3d 295, 310 [2004]), quoting Harris v Forklift Sys., Inc., 510 US
17, 21 [1993] [citations and internal quotation marks omitted]). In determining whether an
environment is hostile, the Court must consider all the circumstances, including the frequency of
discriminating conduct, its severity, whether it is physically threatening or humiliating, and
whether it unreasonably interferes with the employee's work performance (see Forrest, 3
NY3d at 310-311 [internal citations and quotation marks omitted]). Such conduct may be
subjectively perceived as abusive by the plaintiff and have created an objectively hostile or
abusive environment that a reasonable person would find hostile or intimidating (Id. at
311; see also Hughes v United Parcel Serv., Inc., 4 Misc 3d 1023[A], *6 [2004],
citing Oncale v. Sundowner Offshore Servs., Inc., 523 US 75 [1998]). Moreover, for
discriminatory acts to be actionable against an employer, the employer must have "encourag[ed],
condon[ed], or approv[ed]" such conduct (see Forrest, 3 NY3d at 311; see also Curto v Zittel's Dairy Farm, 26
AD3d 808, 809 [2006] [where plaintiff did not meet initial burden by submitting admissible
proof that employer was aware of harassment by plaintiff's coworker, or that it acquiesced in or
condoned coworker's conduct]).
As discussed in the previous section, plaintiff fails to offer adequate proof of
circumstances that give rise to an inference of discriminatory intent. Although he relies on the
alleged improper racial jokes and slurs uttered by Bragg, who did not make any decisions relating
to plaintiff's employment, the evidence is insufficient to show how they altered his working
conditions (see e.g., Stepheny v Brooklyn Hebrew Sch. for Special Children, 356
F Supp 2d 248, 264 [EDNY 2005] [five racially offensive comments of the term "white bitch,"
over the course of five months insufficient as a matter of law to establish hostile environment
claim]; Pagan v New York State Div. of Parole, 2003 WL 22723013, at *6 [SDNY 2003]
[four instances of racially derogatory remarks by supervisor in the span of several months did not
amount to a hostile work environment]; Stembridge v City of New York, 88 F Supp 2d
276, 286 [SDNY 2000] [seven incidents over three years, including two instances of racial
epithets, such as "uppity nigger," uttered by supervisors toward plaintiff, evince only racial
hostility, but do not establish a hostile work environment]). Even if plaintiff had presented
evidence demonstrating the use of racial jokes and slurs in the workplace, however, it was
without the knowledge or acquiescence of his employer, who did not encourage, condone, or
approve of Bragg's alleged racial remarks. Indeed, plaintiff admits that he did not report the
alleged racially discriminating conduct to anyone (see Lambert Transcript at 47-55).
Furthermore, nothing in the record indicates any discriminatory intent which can be
inferred from his supervisors' actions or that plaintiff experienced discrimination due to race or
color, much less any substantial details of frequency, severity, physical or psychological effect, or
impact on Lambert's performance at work. His conclusory allegations that [*14]defendants, because of his race, repeatedly gave positions to other
employees who were Caucasian instead of to him, and that defendants furthermore failed to
thoroughly investigate his complaints, do not raise any triable issues. When asked to identify
specific instances of racially discriminatory remarks or treatment, Lambert made only speculative
statements during his deposition such as, "I don't know of any direct [discriminatory] comments.
That does not mean that [Sechuk] never made direct [discriminatory] comments" and "[Macy's
employees] never said [negative discriminatory] comments, but that doesn't mean to stay they
didn't imply it" (Id. at 50-55). Similarly, when he filed his discrimination complaints with
the Human Resources department, he did not document any specific negative remarks by any
employees at Macy's relating to his race (Id. at 33-34). There is no doubt that the
allegedly discriminatory conduct complained of was not sufficiently severe or pervasive so as to
alter the conditions of plaintiff's employment (see O'Dell v Trans World Entertainment
Corp., 153 F Supp 2d 378, 386 [2001]).
In the absence of proof that Lambert reported any of the alleged racial remarks to his
employer or proof from which discriminatory intent may otherwise be inferred, the Court finds
that defendants are entitled to summary judgment on the hostile work environment claim (see
Lee v City of Syracuse, 603 F Supp 2d 417, 438-439 [NDNY 2009] [summary judgment
granted for employer on hostile work environment claim where plaintiff never reported any
offensive pornography in the workplace]; Smith v Niagara Frontier Transp. Auth., 2007
WL 1119797, *6-7 [WDNY 2009] [summary judgment granted for employer on hostile work
environment claim where plaintiffs' raised complaints to the employer, but not about the alleged
racially nor sexually harassing conduct]). Accordingly, the branch of defendants' motion for
summary judgment seeking to dismiss the hostile work environment claim under the NYSHRL
should be granted.
With respect to
NYCHRL, courts have traditionally stated that there is no difference between "the rights granted .
. . or the manner and amount of proof required to prevail" under the NYSHRL and NYCHRL
(Mohamed v Marriott Int'l, Inc., 905 F Supp 141, 157 [SDNY 1995], citing Buckout v
New York City Comm'n on Human Rights, 200 AD2d 173 [1994]; see also Rios v Metropolitan Transp.
Auth., 6 Misc 3d 1006[A], *3 [2004]). However, the Restoration Act,[FN15] which amended the city
human rights law in a variety of ways, explicitly stated an intent for the NYCHRL to be afforded
broader and more liberal construction than its state and federal counterparts, as reflected in the
text and legislative history (see Administrative Code § 8-130; Williams, 61
AD3d at 73-74).[FN16]
Williams, cited by plaintiff, [*15]expands the standard of
impermissible conduct actionable under hostile work environment claims.[FN17] Specifically, an analysis
under the NYCHRL follows a standard imposing liability for discriminatory conduct that exceeds
"what a reasonable victim of discrimination would consider petty slights and trivial
inconveniences,'" rather than "an overly restrictive severe or pervasive' bar" (Id. at
79-80). The court in Williams clearly held that, unlike the state and federal "severe or
pervasive" standard, and following the legislature's specific intent to protect employees from a
wider spectrum of unlawful conduct, the standard under the NYCHRL would strive to eliminate
the role of any significant discrimination in the workplace.
Under the city human rights standard for hostile work environment claims,
reasonable minds could differ as to whether Bragg's alleged racial jokes and slurs were "no more
than petty slights and trivial inconveniences" in this "borderline" situation (Id. at 80;
see also Hwang v DQ Mktg. & Pub. Relations Group, 2009 WL 3696604 [2009]
[granting summary judgment dismissing plaintiff's hostile work environment claim under the
NYSHRL, but denying summary judgment for the same claim under the NYCHRL]). However,
plaintiff still fails to raise triable issues as to whether Macy's knew about, encouraged, condoned,
or approved the alleged unlawful conduct, or whether racial discrimination can be inferred from
defendants' actions. Accordingly, the branch of defendants' summary judgment motion seeking to
dismiss plaintiff's hostile work environment claim under the NYCHRL must also be granted.
With a constructive discharge claim, an employee
essentially asserts that the employer, rather than directly discharging an individual, has
intentionally created an intolerable work atmosphere that forces that employee to quit
involuntarily (see Whidbee v Garzarelli Food Specialities, Inc., 223 F3d 62, 73 [2d Cir
2000]). Working conditions are intolerable if they are so difficult or unpleasant that a reasonable
person in the employee's shoes would have felt compelled to resign (id.). To make a
prima facie case for constructive discharge, a plaintiff must show that: (1) the employer
deliberately made the employee's working conditions so intolerable that (2) he or she was forced
into involuntary resignation (Nelson, 41 AD3d at 447, citing Petrosino v Bell
Atl., 385 F3d 210, 229 [2d Cir 2004]; Chertkova v Connecticut Gen. Life Ins. Co.,
92 F3d 81 [2d Cir 1996]). An employer engages in the type of "deliberate" conduct necessary to
support a constructive discharge claim where the plaintiff can show that such conduct was not
merely negligent (see Petrosino, 385 F3d at [*16]229-230). The analysis entails consideration of the cumulative
effect of the defendants' conduct and a determination of whether, based on the totality of the
circumstances, the defendant created working conditions that were "so difficult or unpleasant that
a reasonable person in the employee's shoes would have felt compelled to resign" (see
Chertkova, 92 F3d at 90; Stetson v NYNEX Serv. Co., 995 F2d 355, 361 [2d Cir
1993]).
In the instant action, plaintiff fails to raise issues of fact that his resignation was
anything other than voluntary. Lambert does not allege that he actually experienced a reduction in
salary or benefits or that his working conditions had become difficult or onerous (see e.g.
Ioele v Alden Press, Inc., 145 AD2d 29, 36 [1989]). Moreover, "mere dissatisfaction with
work assignments, unfair criticism, or working conditions that can be categorized as unpleasant,
do not constitute a constructive discharge" (Pugni v Reader's Digest Ass'n, Inc., 2007 WL
1087183, *25 [SDNY 2007]; O'Dell, 153 F Supp 2d at 393). Although Lambert was
unhappy that he did not receive the promotion to Director of Operations, "[a] discriminatory
denial of a promotion, without more, does not amount to a constructive discharge. Rather, the
resulting working conditions must be so intolerable that a reasonable person would have felt
compelled to resign" (Alleyne v Four Seasons Hotel-New York, 2001 WL 135770, *14
[SDNY 2001] [internal citations and quotation marks omitted]). "This is not a case where the
plaintiff has established that the denial of that promotion dashed her reasonable expectations of
career advancement,' or that management personnel indicated that she should resign or impliedly
suggested that her employment would be terminated" (id.). On the contrary, rather than
terminate plaintiff's employment, defendants kept him on caution/warning status for six months
and allowed him to improve his work performance. Cadmus also testified that she told Lambert
there were certain areas of knowledge and skills that he needed to develop first in order to ascend
to Director of Operations (see Cadmus Transcript at 176-178), implying that he still had
the opportunity to grow and that defendants were not trying to compel him to leave employment
at Macy's. Additionally, plaintiff presents no evidence demonstrating that defendants' conduct
was intentionally geared towards compelling his resignation.
Plaintiff cites Cioffi (456 F Supp 2d 202), in which the court confirmed the
jury's determination that the plaintiff-employee was constructively discharged, as analogous to
the instant action. However, Cioffi is inapposite because the plaintiff therein presented
evidence that she was subjected to more extreme circumstances immediately after she
complained of sexual harassment.[FN18] Accordingly, the Court concludes that
plaintiff raised no triable issues regarding whether he was constructively discharged from his
employment at Macy's, and defendants' motion for summary judgment should be granted with
respect to that claim.
Plaintiff alleges in the Complaint that, because he opposed
defendants' discriminatory practices, complained about defendants' discriminatory practices,
and/or refused to alter information in Macy's security database in relation to another lawsuit
pending in federal court, he was subjected to defendants' retaliatory actions, including improperly
prolonging his warning period, failing to conduct a thorough investigation of his racial
discrimination complaints in good faith, and constructively discharging him. Defendants contend
that their actions cannot be construed as retaliatory because the company did not learn of
Lambert's alleged misappropriation of security systems data until after he had
resigned.[FN19]
Moreover, they aver that plaintiff voluntarily transferred to the engineering department as an
Energy Analyst on the same day he filed the June 2003 Complaint with the Human Resources
department, and that the transfer thus could not have been made in response to the June 2003
Complaint.
Although plaintiff satisfies the first and second elements (protected activity and the
employer's knowledge of such), plaintiff fails to establish a retaliation claim under the NYSHRL.
Even if plaintiff could successfully demonstrate an adverse employment action under state law
standards, which he cannot, as discussed above, the Court nevertheless finds no evidence that
Lambert was transferred, kept on a lengthier caution/warning period, denied a thorough
investigation, or constructively discharged as a result of his complaints. Courts have found that a
causal connection may be established either "(1) indirectly, by showing that the protected activity
was followed closely by discriminatory treatment, or through other circumstantial evidence such
as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly,
through evidence of retaliatory animus directed against the [claimant] by the defendant"
(Gordon v New York City Bd. of Educ., 232 F3d 111, 117 [2d Cir 2000]; see also
Pace Univ. v New York City Commn. on Human Rights, 85 NY2d 125, 129 [1995]).
Plaintiff has submitted neither circumstantial proof nor evidence of retaliatory animus herein.
Accordingly, the branch of defendants' summary judgment motion seeking [*18]dismissal of the retaliation claim under the NYSHRL should be
granted. Although the NYCHRL uses a broader construction for what constitutes an actionable
adverse employment action,[FN20] plaintiff's retaliation claim under this more
liberal statute must also be dismissed because Lambert failed to raise triable issues regarding
whether a causal connection existed between the protected activity and the adverse employment
action (Simeone, 36 AD3d 890).
Defendants also move to dismiss defendant Federated,
Macy's parent company, from the instant action. According to defendants, Federated was not
involved in the matters that are the subject of the action, and Lambert cannot establish
Federated's vicarious liability for Macy's alleged discriminatory conduct because he has not
demonstrated that Federated approved of, acquiesced in, or had knowledge of any wrongful act
by any other defendant.
Plaintiff argues that Federated may not be dismissed from the action because,
although Federated is a separate company, it should be considered as a single company together
with Macy's given that they operate as a "single integrated enterprise." In support of his
contention, Lambert cites Lihli Fashions Corp. v NLRB (80 F3d 743 [2d Cir 1996]) and
acknowledges that in their analysis, courts will look to the "interrelation of operations, common
management, centralized control of labor relations and common ownership" (Id. at 747)
to determine whether two entities operate as a "single integrated enterprise" (see also Nunez v
Mariners Temple Baptist Church, 25 Misc 3d 1212[A], *1 [2009]). Although there may be
some sort of interrelation between Macy's and Federated based on their ownership structure,
website, company names, and performance reviews issued by the parent company, as plaintiff
alleges, the evidence is insufficient to raise a triable issue regarding whether Federated was
Lambert's joint employer under the four-factor test articulated in Lihli and similar
precedent. Specifically, plaintiff's proof provides no detail with respect to how Macy's and
Federated allegedly shared operations, were run by overlapping directors or officers, or
manifested common financial control (cf. Matter of Argyle Realty Assoc. v New York State Div. of Human
Rights, 65 AD3d 273, 278-282 [2009] [where three entities shared, for example,
managers, chief operating officers, presidents, and shareholders, and the payroll checks of one
company listed the name of one of the other companies]). Plaintiff's unsubstantiated allegations
that Federated exercised control over Macy's because its Code of Good Business Conduct applied
to all Macy's employees is not enough to defeat summary judgment. Accordingly, the branch of
defendants' motion for summary judgment seeking dismissal of Federated from the action should
be granted.
Plaintiff asserts that punitive damages are warranted, pursuant
to Administrative Code § 805 (a), to compensate him for defendants' alleged discriminatory
treatment. However, the [*19]Court determines that plaintiff lacks
any evidentiary basis showing that defendants' engaged in "egregious misconduct" rising to the
level of "willful, wanton or reckless disregard" for plaintiff's rights (see Jordan v Bates Adv. Holdings, Inc.,
11 Misc 3d 764, 777 [2006]; see also Doe v Merck & Co., 1 Misc 3d 911[A], *2
[2002]).[FN21] With
respect to Macy's anti-discrimination policies, the Court notes that Lambert signed an annual
anti-discrimination form every year attesting that he had no knowledge of any discrimination
taking place at Macy's. The Court concludes that plaintiff has not presented sufficient evidence to
show that defendants did not engage in a good-faith enforcement of anti-discrimination policies.
Accordingly, upon granting
defendants' second motion seeking leave to serve a late summary judgment motion, the Court
also grants defendants' motion for summary judgment dismissing the Complaint and all other
claims under the NYSHRL and NYCHRL. The Court has considered the parties' remaining
contentions and finds them without merit.
The foregoing constitutes the decision, order, and judgment of the court.
Footnote 1: Federated has since changed its
corporate name to Macy's, Inc.
Footnote 2: According to plaintiff, William
Bragg (Bragg), the Director of Training at Macy's, used the racial slur "nigger" in plaintiff's
presence to describe an African American person.
Footnote 3: In her deposition testimony,
Cadmus also states that "[Lambert] was not qualified for the position. He was new to Macy's,
new to security. He lacked the leadership skills in order to do the job" (Transcript of Maryanne
Cadmus, annexed as Exhibit B to plaintiff's opposition papers, at 173; see also Id. at
176-177).
Footnote 4: Trocchia did not have any
experience in the retail industry at all and, according to Cadmus' deposition testimony, had
problems communicating with regional vice presidents, was unprepared for meetings, and did not
have sufficient knowledge for his position. Nevertheless, Cadmus described Trocchia's work as
"great" because "there is [sic] things he grasped quickly, he was creating partnerships, he had
great initiative, and he was eager" (Cadmus Transcript at 412).
Footnote 5: For example, the previous Civil
Recovery Manager, Brian Toner, a Caucasian male, had been sent to Atlanta for training relating
to Macy's computer systems. Plaintiff alleges that his request for the same training was denied.
Footnote 6: In his deposition testimony,
however, plaintiff stated that he did not raise the issue of the allegedly discriminatory patterns in
arrests made at Macy's to anyone there, not even "Mitch on the legal side" (Transcript of Anthony
Lambert, annexed to defendants' cross motion, at 93-94, 122-124).
Footnote 7: Macy's policy allows for a
poorly performing employee to be terminated if significant improvement is not made within 90
days. Plaintiff avers that warning periods for Macy's employees were generally limited to 90 days
and that no Caucasian employee had ever been placed on warning for such a long period (six
months).
Footnote 8: For his previous review in 2001,
he received a categorical "meets expectations" grade, and alleges that defendants improperly
evaluated him only on his performance as Civil Recovery Manager, and did not take into account
the time he had worked as Operations Manager. In 2002, he alleges that he initially received a
grade on the high end of the "meets expectations" scale from Coulson, his direct supervisor, but
Cadmus allegedly reduced his numerical rating to "below expectations," which made him
ineligible for a raise in compensation. Lambert further alleges that Cadmus made additional
changes to his ratings for 2003, which defendants claim is impossible because Lambert did not
receive a performance review for 2003.
Footnote 9: He alleges that the Energy
Analyst position did not include any managerial authority over direct reports and carried a lower
maximum salary of $48,000.
Footnote 10: Defendants erroneously
label this motion as a "cross-motion" to their own motion for summary judgment, but their
application should properly be designated a "motion" (see generally Fuller v Westchester County Health Care Corp., 32 AD3d
896 [2006]; Gaines v Shell-Mar
Foods, Inc., 21 AD3d 986 [2005]).
Footnote 11: Martin had previously
handled the case at his former law firm.
Footnote 12: McCarney then arranged to
serve a notice of motion on October 27, with a letter to plaintiff's counsel proposing that they
stipulate to a briefing schedule.
Footnote 13: For example, Coulson
testified that she gave Lambert the training manual on civil recovery, but plaintiff said he didn't
have time to read it (see Transcript of Cindy Coulson, annexed to defendants' moving
papers, at 158).
Footnote 14: Although the Energy
Analyst position did not allow him to directly oversee any other employees, that fact does not
automatically qualify the transfer as a demotion.
Footnote 15: See 2005 NY City
Legis. Ann. at 528-535.
Footnote 16: Administrative Code §
8-130 provides, in pertinent part:
The provisions of this [chapter] 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.
Footnote 17: As discussed further below,
Williams also expands the standard for analyzing retaliation claims under the NYCHRL.
Footnote 18: Among other things, the
plaintiff in Cioffi was interrogated, disciplined, stripped of important duties immediately
after she complained of sexual harassment, and required to work on a project headed by her
alleged harasser.
Footnote 19: Defendants improperly
categorize plaintiff's alleged misappropriation of security data as the action that plaintiff seeks to
protect, but in fact the activities properly at issue are plaintiff's complaints to the Human
Resources department and his refusal to cooperate with alleged requests to alter data in the
Macy's security system. It is therefore irrelevant that Macy's did not learn of Lambert's alleged
misappropriation of security data until after he had resigned.
Footnote 20: In Williams, the
court stated that retaliation claims under the NYCHRL undergo an analysis based on whether the
alleged retaliatory or discriminatory acts are "reasonably likely to deter a person from engaging in
protected activity" (Williams, 61 AD3d at 70-71).
Footnote 21: Contrary to plaintiff's
suggestion, Cioffi (456 F Supp 2d 202) does not stand for the proposition that defendants'
failure to investigate plaintiff's claim automatically gives rise to punitive damages.