Opinion
00 Civ. 9827 (MBM)
February 13, 2003
ANDREW F. PISANELLI, ESQ., Westerman, Hamilton, Sheehy, Aydelott Keenan, White Plains, NY, (Attorney for Plaintiff).
PETER A. WALKER, ESQ., LEONARD A COLONNA, ESQ., Seyfarth Shaw, New York, NY, (Attorneys for Defendant).
AMENDED OPINION AND ORDER
Plaintiff Xavier Arias ("Arias") brings this action against defendant NASDAQ/AMEX Market Group ("AMEX") under Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), the Americans with Disabilities Act ("ADA"), and section 296 of the New York State Human Rights Law ("NYSHRL"). Arias claims that during his employment at AMEX he suffered a hostile work environment as a result of verbal and physical abuse directed toward him due to his race and national origin and that the decisions to place conditions on his continued employment and then to fire him were retaliatory. Although he has now abandoned his ADA and disclosure claims, Arias originally alleged also that AMEX demoted and fired him because he had been diagnosed with post traumatic stress disorder ("PTSD") and that AMEX unlawfully disclosed medical information relating to him. AMEX moved for summary judgment on all claims. The motion was granted in part and denied in part in an Opinion and Order dated January 7, 2003 ("Order"). Arias has requested that I reconsider my previous decision to grant summary judgment on his retaliation claim because I erred in stating that March 1, 1999, rather than June 1, 1999, was the date of a meeting at AMEX during which Arias was given a letter setting forth the new terms and conditions of his employment. In light of that error, the motion for reconsideration is granted. For the reasons set forth below, the disposition of the motion for summary judgment remains the same. The motion for summary judgment is granted in part and denied in part.
I.
A. Background
The following facts are undisputed except as described otherwise. Plaintiff Xavier Arias is a Hispanic male of Ecuadorian origin. (Def.'s 56.1 ¶ 1; Pl.'s 56.1 ¶ 1) On or about April 22, 1992, Arias applied and was interviewed for the position of porter in the Special Services Department of the American Stock Exchange ("AMEX"). (Def.'s 56.1 ¶ 14; Arias Dep. at 43). Approximately one week later, Arias was hired as a porter in AMEX's Special Services Department and given a copy of AMEX's employee handbook. (Def.'s 56.1 ¶ ; Pl.'s 56.1 ¶ 2) At all relevant times, Thomas Long ("Long") was the manager of the Special Services Department. (Def.'s 56.1 ¶ 20; Arias Dep. at 47-48) As the manager of the Department, Long supervised Arias' work. (Def.'s 56.1 ¶ 21; Pl.'s 56.1 ¶ 3) In April 1998, Arias was promoted to porter supervisor, but his duties remained largely the same and he continued to report to Long. (Def.'s 56.1 ¶¶ 22-23; Arias Dep. at 141)
AMEX owns and maintains the building in downtown New York City in which the business of the American Stock Exchange is conducted. (Def.'s 56.1 ¶ 6; Casey Aff. at ¶ 4) Because the exchange serves as a trading center, most of those present at the exchange on any given day are not AMEX employees. (Def.'s 56.1 ¶¶ 8-9; Casey Aff. at ¶ 5) AMEX has no supervisory authority with respect to non-AMEX employees who work at the exchange. (Def.'s 56.1 ¶ 10; Casey Aff. at ¶ 5)
Securities Industries Automation Corporation ("SIAC") is responsible for the maintenance of the computer systems that support and carry out financial transactions at the Exchange. (Def.'s 56.1 ¶ 11; Long Dep. at 18-19) At all relevant times, SIAC personnel operated out of a secure room at the Exchange. (Def.'s 56.1 ¶ 12; Arias Dep. at 116-18) Arias claims that he had permission to go into that room to perform his duties as a porter. (Arias Dep. at 119, 187) As a separate and independent company from AMEX, SIAC maintained its own supervisory chain of command over its employees. (Def.'s 56.1 ¶ 13; Casey Aff. at ¶ 6)
B. The Altercation
On March 1, 1999, Arias rang the bell at the door of the SIAC room in order to gain entry so that he could check the men's restroom. (Def.'s 56.1 ¶ 25; Arias Dep. at 287-88) AMEX's version of subsequent events is as follows: Dennis Bravo, a SIAC employee, opened the door and, almost immediately, a fist fight ensued between him and Arias. Video cameras do not show who initiated the fight. However, as Arias and Bravo were being separated, Arias grabbed a broomstick and then a computer monitor. (Def.'s 56.1 ¶¶ 27-32) Arias' account is that Bravo pushed the door open in an attempt to hit Arias, and the door almost struck Arias' face. Then, Bravo immediately pushed Arias up against two pipes so that Arias hit his head. Bravo proceeded to punch Arias in the face twelve to fourteen times, and finally, Arias picked up a broomstick and a computer monitor to defend himself. (Arias Dep. at 291-92, 294-96)
AMEX's internal security department was made aware of the altercation, and Paul Brancato, AMEX's security manager, interviewed Arias and Bravo. (Def.'s 56.1 ¶¶ 33-34; Brancato Aff. at ¶ 8) Arias was placed on administrative leave, with pay, pending the outcome of the investigation. (Def.'s 56.1 ¶ 35; Arias Dep. at 336-37) As part of the investigation, on or about March 25, 1999, Arias appeared at a meeting at the exchange. (Def.'s 56.1 ¶ 36; Arias Dep. at 304-06) Present at that meeting were Suzanne Johnson, AMEX's Director of Human Resources, Catherine Tighe, National Association of Securities Dealers' Vice President of Administrative Services, and three representatives of SIAC. (Def.'s 56.1 ¶ 37; Arias Dep. at 304-06) AMEX claims that both Arias and Bravo viewed the videotape of the fight before the meeting. (Def.'s 56.1 ¶ 38; Brancato Dep. at 84) Arias claims that he was not permitted to watch the videotape. (Arias Dep. at 319-20)
At the meeting, Arias was questioned about the fight with Bravo. (Def.'s 56.1 ¶ 39; Arias Dep. at 305-306) On or about June 1, 1999, Arias appeared again at Suzanne Johnson's office at the Exchange, where he was presented with a letter explaining that engaging in a violent fight was a breach of AMEX policy, could not be tolerated, and typically resulted in the termination of those employees involved. (Def.'s 56.1 ¶¶ 41-42; Arias Dep. at 309-10) The letter went on to say that due to the ambiguity surrounding the instigation of the fight, AMEX would not fire Arias. (Def.'s 56.1 ¶ 43; Casey Aff., Ex. 1). However, the letter explained that as a condition of his continued employment Arias would have to attend conflict resolution counseling/training and return to work in a non-supervisory capacity. (Def.'s 56.1 ¶ 44; Casey Aff. Ex. 1) Johnson also conveyed these conditions to Arias verbally. (Def.'s 56.1 ¶ ; Arias Dep. at 314-15)
AMEX asserts that Arias refused to sign the letter presented to him on June 1. (Def.'s 56.1 ¶ 46) Arias denies that he refused to sign the letter and claims that he merely advised Suzanne Johnson that he needed to show the letter to his attorney. (Arias Dep. at 317) Arias did not sign the letter, and AMEX terminated Arias' employment on or about June 3, 1999. (Def.'s 56.1 ¶ 47; Casey Aff. at ¶ 7)
Before he was fired, Arias did not tell anyone at AMEX that he was going to file a charge of discrimination. (Def.'s 56.1 ¶ 94; Arias Dep. at 339) After he was fired, Arias was diagnosed with post traumatic stress disorder ("PTSD"), but he did not tell anyone at AMEX about the diagnosis. (Def.'s 56.1 ¶¶ 95-96; Arias Dep. at 207, 338-39). Arias does not know if any of his doctors notified AMEX that he was diagnosed with PTSD. (Def.'s 56.1 ¶ 97; Arias Dep. at 338-39)
C. Harassment at AMEX
Arias alleges that he was repeatedly harassed because of his race and national origin by co-workers in AMEX's security department and others who worked on the trading floor of NASDAQ/AMEX. (Compl. ¶¶ 15-16; Pl.'s 56.1 ¶ 10) In particular, Arias claims that numerous co-workers, from 1995 until his discharge, called him, among other things, a "Columbian drug dealer," a "Mexican dickhead," a "stupid Mexican," and an "Ecuadorian spic." (Arias Dep. at 208-220)
At least since 1995, AMEX has had a written anti-harassment policy, which included an accompanying "open door" policy. (Def.'s 56.1 ¶ 49) This policy, found in AMEX's employee handbook, provided in pertinent part: "Employees are expected at all times to display acceptable behavior while on Exchange-sponsored functions. Less than acceptable behavior as well as illegal activity in any form on Exchange premises or at Exchange-sponsored functions will not be tolerated, and employees engaging in such activity will be subject to appropriate disciplinary action, including dismissal." (Def.'s 56.1 ¶ 50; Def.'s 56.1, Ex. 1) The handbook set forth also the company's "Grievance Procedure," designed to address complaints and issues relating to an employee's "job function, promotion, compensation, benefits, hours or conditions of employment . . . ." (Def.'s 56.1 ¶ 51; Def.'s 56.1, Ex. 1) The Grievance Procedure advised employees to bring any grievances to the attention first of their department management and then of a representative of the Human Resources Department or the Employee Relations Department. (Def.'s 56.1 ¶ 52; Def.'s 56.1, Ex. 1) If these steps did not sufficiently address the problem, the employee was directed to bring the matter to the attention of the Grievance Committee, a five-member committee of AMEX employees. (Def.'s 56.1 ¶ 53; Def.'s 56.1, Ex. 1) Although Arias concedes that he received an employee handbook when he first joined AMEX in 1992, he claims that he never received the "freedom from harassment policy." (Arias Dep. at 271-76)
In October 1998, the National Association of Securities Dealers ("NASD") purchased AMEX, and NASD's policies supplanted AMEX's. (Def.'s 56.1 ¶¶ 54-55; Thompson Aff. at ¶ 5) The new policy prohibited "all unwelcome conduct, whether verbal, physical or visual, that is based upon a person's status, such as: sex, color, race, ancestry, religion, national origin" and provided that NASD "will not tolerate any form of unlawful harassment against any employee by any person, including other employees, vendors or guests." (Def.'s 56.1 ¶ 56; Thompson Aff., Ex. 1) The policy provided also that "the conduct forbidden . . . specifically includes, but is not limited to: (a) epithets, slurs, negative stereotyping, or intimidating acts that are based on [a person's protected status]." (Def.'s 56.1 ¶ 57; Thompson Aff., Ex. 1) The policy went on to provide that persons experiencing any prohibited conduct were encouraged to report the conduct to a supervisor, manager, human resources representative or other specifically identified persons, and explained that those who reported prohibited conduct would be protected from retaliatory action. (Def.'s 56.1 ¶ 58; Thompson Aff., Ex. 1) AMEX's policy protects employees from harassment by non-AMEX employees as well as AMEX employees. (Casey Aff., Ex. 1 ("Harassment of employees whether it be jokes, slurs, unwelcome advances, comments or other conduct by supervisory personnel, non-supervisory personnel, by members or employees of members, or by business invitees will not be permitted."))
Defendant claims, and Arias testified in his deposition, that, if Arias wanted to report any harassment, he probably would have talked to his supervisor Tommy Long. (Def.'s 56.1 ¶ 59) Additionally, Yvonne Harris, Managing Director of Employee Relations in AMEX's Human Resources Department, told Arias that he should come and talk to her if he ever needed her. (Def.'s 56.1 ¶ 60; Arias Dep. at 281) However, Arias claims that he felt that he might lose his job or be labeled as a "rat" if he complained. (Arias Dep. at 277-78) Arias asserts also that he did not feel comfortable reporting problems to Long because he was afraid that he would lose his job or that Long would not address the problem as promised. (Pl.'s 56.1 ¶ 25)
AMEX submits that Arias did not report the specific alleged instances of harassment to anyone at AMEX (Def.'s 56.1 ¶ 61; Long Dep. at 99-100), and Arias agrees that he "kept [the harassment and discrimination] to [him]self." (Arias Dep. at 257) AMEX claims that Arias never reported — and no supervisors knew — that SIAC employees assaulted him in an elevator, forced him into a large cardboard box, tied his hands with wire, sprayed him with cleaning alcohol, stood behind him and simulated a sexual act, called him "a stupid Colombian," and threw items at him, or that traders on the Exchange made derogatory race-based remarks to him. (Def.'s 56.1 ¶ 65-80)
Although Arias admits that he did not report the alleged elevator assault in late 1998 (Arias Dep. at 173-74, 178-79, 181), Arias contests AMEX's claim that he remained silent about the other acts of harassment. According to Arias, he told Tommy Long in late 1997 that SIAC employees were calling him names and bothering him, and Long responded that he would "take care of it." (Arias Dep. at 184-85) Arias asserts also that Arias specifically told Long about being stuffed in a box. (Pl.'s 56.1 ¶ 9) AMEX concedes that, at the end of 1997, Arias told Long that SIAC employees were calling him names and bothering him (Def.'s 56.1 ¶ 82), but does not concede that Long promised to do anything about it or that Long was told about specific incidents. The parties agree that, on March 1, 1999, the day of Arias' altercation with Bravo, Arias did finally report the separate incidents involving the SIAC employees tying his hands with wire and putting him in a cardboard box. (Def.'s 56.1 ¶ 70; Arias Dep. at 183-84)
Arias claims further that "Sam," a SIAC manager, was present when SIAC employees called Arias names, and that Arias told Sam to ask the SIAC employees to stop harassing him. (Pl.'s 56.1 ¶¶ 6-8; Arias Dep. at 121-22, 175) Arias states also that "Kenneth," a non-supervisory security officer, used racial epithets to describe Arias and that he and Paul Brancato, director of AMEX's security department, would periodically tell Arias to clean their groins. (Def.'s 56.1 ¶¶ 83-84; Pl.'s 56.1 ¶ 12; Arias Dep. at 255). Although Arias testified in his deposition that he thought Brancato was a manager (Arias Dep. at 257), he does not contest AMEX's statement that Brancato had no supervisory authority over Arias or the porters. (Def.'s 56.1 ¶¶ 85-86)
In another series of incidents, a broker named Walter, who was employed by one of the member firms on the trading floor, called Arias a "Colombian drug Lord." (Def.'s 56.1 ¶ 105; Arias Dep. at 220) On one occasion, Joseph Lovett, who was chairman of the trading floor and not employed by AMEX, overheard Walter call Arias a "Columbian Drug Lord." (Def.'s 56.1 ¶ 106; Arias Dep. at 221; Casey Aff. at ¶ 12) Lovett told Walter that that would be the last time he would make that comment to Arias. (Def.'s 56.1 ¶ 107; Arias Dep. at 221)
As noted above, Long was Arias' supervisor at AMEX. Long received no formal training from AMEX on how to deal with complaints of harassment. (Pl.'s 56.1 ¶ 18; Long Dep. at 124) Moreover, Long testified that he would only file a report in response to a "formal complaint," which Long defined as a complaint of severe harassment. (Pl.'s 56.1 ¶¶ 19-20; Long Dep. at 100)
Long appears to admit that he heard that Arias was referred to as a "Columbian drug lord." (Long Dep. at 122 ("The Columbian drug Lord rings a little bit of a bell.")) Long admits also that he was supposed to inform the head of the human resources department of complaints of harassment. (Pl.'s 56.1 ¶ 23; Long Dep. at 124) Long never reported that AMEX employees referred to Arias as a "Columbian drug lord" or that SIAC employees had stuffed Arias in a box. (Pl.'s 56.1 ¶¶ 30, 34; Long Dep. at 122) Arias claims further that, after he went to see Manny Perendez in Human Resources about problems in the porter department, Long admonished him for going to Perendez, saying: "Why are you telling the guys that you will go over my head to personnel if I don't solve the problems in our department." (Pl.'s 56.1 ¶ 24; Arias Aff. at ¶¶ 5-6)
The incidents of harassment that form the basis of the present lawsuit were not the only problems that Arias encountered as an AMEX employee. In 1996 or 1997, Arias was aggressively grabbed and pushed by an AMEX employee named "Claude." (Def.'s 56.1 ¶ 98; Arias Dep. at 280-81) Arias reported this incident to Yvonne Harris in AMEX's Human Resources Department because "she was a very nice lady" and she had once told him that if he ever needed something he should come talk to her. (Def.'s 56.1 ¶¶ 99-100; Arias Dep. at 281-82) After Arias reported the incident to Harris, Claude was not at work for the next two weeks, and Claude never bothered Arias again. (Def.'s 56.1 ¶¶ 101-02; Arias Dep. at 282-83) In January 1999, nine months after he was promoted to supervisor, Arias met with Suzanne Johnson to complain about the fact that his promotion had not been announced or been given in a more formal manner. (Def.'s 56.1 ¶ 103; Arias Dep. at 162-63) Johnson was very receptive to Arias' complaints. (Def.'s 56.1 ¶ 104; Arias Dep. at 161-62)
D. Arias' Medical Problems
In September, 1998, Arias took approximately one month sick leave due to mental health problems. (Def.'s 56.1 ¶ 108; Arias Dep. at 223) AMEX claims that he was suffering from anxiety and depression because he had a heavy workload at work and had lent someone $10,000 and had not been paid back. (Def.'s 56.1 ¶ 109) Arias claims that he was suffering from anxiety and depression as a result of the way he was being treated on the trading floor. (Arias Dep. at 199)
After seeing his doctor and being told that he needed time off, Arias telephoned either Tommy Long or Laura Velez, an AMEX administrator, and told one of them that he needed time off for "anxiety and depression." (Def.'s 56.1 ¶ 110; Arias Dep. at 227) Upon returning to work approximately one month later, several SIAC employees were aware of his medical condition and told him that they had heard about his condition and would support him. (Def.'s 56.1 ¶ 112; Arias Dep. at 224-25) Arias never complained about or reported to anyone at AMEX his allegation that his medical information was improperly disclosed. (Def.'s 56.1 ¶ 113; Arias Dep. at 229-30)
II.
Arias sues AMEX under Title VII, the ADA, and the NYSHRL. He alleges that he suffered a hostile work environment as a result of verbal and physical abuse directed toward him due to his race and national origin, that the decisions to place conditions on his continued employment and then to dismiss him were retaliatory, that AMEX demoted and dismissed him because he had been diagnosed with PTSD, and that AMEX unlawfully disclosed medical information relating to him.
AMEX moves for summary judgment on Arias' hostile work environment and NYSHRL claims on the ground that the alleged incidents of harassment cannot be imputed to AMEX. AMEX moves for summary judgment on the retaliation claim on the ground that Arias cannot establish that he engaged in a protected activity or that there was a causal relationship between the protected activity and the adverse employment action. AMEX moves for summary judgment on the disability discrimination claim on the grounds that AMEX was not aware of Arias' alleged disability prior to his termination and that AMEX's decision to make Arias' continued employment conditional was a legitimate and nondiscriminatory business decision. Finally, AMEX moves for summary judgment on Arias' claim of unauthorized disclosure of medical information on the grounds that the claim is time-barred and that Arias suffered no cognizable injury. Arias offers no response, either in the form of legal authority or factual allegations in his Rule 56.1 "Counterstatement of Facts," to AMEX's motion for summary judgment on the disability and disclosure claims.
Summary judgment is appropriate when, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Horn Hardart Co. v. Pillsbury Co., 888 F.2d 8, 10 (2d Cir. 1989). The movant for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion" and identifying which materials "demonstrate the absence of genuine issues of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once this showing has been made, the burden shifts to the non-movant who "must set forth facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Here, Arias has set forth facts showing that there is a genuine issue for trial on his hostile work environment claim. However, AMEX has successfully demonstrated the absence of genuine issues of material fact on Arias' other claims.
III.
Arias alleges that AMEX should be held liable under both Title VII and the NYSHRL for the hostile work environment suffered due to his race and national origin. As New York courts require the same standard of proof for claims brought under the NYSHRL as for those brought under Title VII, Arias' federal and state claims can be analyzed in tandem. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998); Gumbs v. Hall, 51 F. Supp.2d 275, 279 (W.D.N.Y. 1999), aff'd 205 F.3d 1323 (2d Cir. 2000).
Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1) (2000). To prevail on a hostile work environment claim, a plaintiff must show both (1) a hostile work environment and (2) that a specific basis exists for imputing to the employer the conduct that created the hostile environment. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996) (citation omitted).
On this motion, AMEX assumes arguendo that Arias has presented sufficient evidence to establish that he was subjected to a hostile work environment. AMEX submits that, even assuming that Arias could prove actionable harassment by AMEX employees and others, AMEX is entitled to summary judgment because no specific basis exists for imputing the conduct that created the allegedly hostile environment to AMEX.
While making much of the fact that AMEX does not employ most of the people who work at the exchange, AMEX does not argue that it may not be held liable for the acts of non-AMEX employees. There is some uncertainty about this issue. See Flower v. Mayfair Joint Venture, No. 95 Civ. 1744, 2000 WL 272187 at *9 (S.D.N.Y. Mar. 13, 2000) ("[I]t is not yet clear in the Second Circuit whether an employer owes a duty to employees subjected to harassment by non-employees, much less what the duty is. . . Should the duty in fact exist, it would be no greater than the duty owed in the co-worker harassment cases" where an "`employer will generally not be liable unless the employer either provided no reasonable avenue of complaint or knew of the harassment but did nothing about it.'" (quotingQuinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1999)).
"[A]n employer is liable for the discriminatorily abusive work environment created by a supervisor if the supervisor uses his actual or apparent authority to further the harassment, or if he was otherwise aided in accomplishing the harassment by the existence of the agency relationship." Karibian v. Columbia Univ., 14 F.3d 773, 780 (2d Cir. 1994). In contrast, where the alleged harassment is attributable to the plaintiff's co-worker or low-level supervisor, employer liability can be established only where the employer is negligent — namely, where the employer (1) "provided no reasonable avenue for complaint" or (2) "knew of the harassment but did nothing about it." Murray v. NYU Coll. of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995) (citation omitted); Kotcher v. Rosa Sullivan Appliance Ctr., 957 F.2d 59, 63 (2d Cir. 1992). Here, Arias alleges that he was subjected to physical and verbal harassment by his co-workers rather than by his supervisors. Thus, he must show that he had no reasonable avenue for complaint or that AMEX knew of the harassment but failed to address it. Because I find that Arias has raised a triable issue of material fact regarding AMEX's knowledge of the harassment suffered by Arias, the motion for summary judgment on Arias' hostile work environment claim is denied.
As noted above, Arias concedes, in his response to defendant's Rule 56.1 Statement, that Brancato had no supervisory authority over him. Thus, Brancato's knowledge of or participation in harassment cannot be imputed to AMEX. See Murray, 57 F.3d at 249 (traditional agency principles provide that harassing conduct is not automatically imputed to an employer when committed by "a low-level supervisor who does not rely on his supervisory authority in carrying out the harassment"). Moreover, even assuming that Brancato had the requisite supervisory authority over Arias, the conduct he witnessed and allegedly participated in —i.e. asking Arias to clean his groin — was not discriminatory, as it neither explicitly nor implicitly implicated Arias' race or national origin. Cf. Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 n. 2 (2d Cir. 2001) (declining to consider age-neutral remarks as evidence of age discrimination).
A. Avenues of Complaint
According to AMEX, the record establishes that AMEX made reasonable avenues of complaint available to its employees. I agree.
Since at least 1995, AMEX had in place a written policy prohibiting illegal harassment and an "open door policy" providing its employees with numerous avenues of complaint in the event they were subject to such harassment. (Def.'s 56.1 ¶¶ 49-53) Moreover, the policy in place since October 1998 expressly prohibits harassment based on race or national origin and encourages employees experiencing such harassment to report the incidents to a manager, supervisor, or Human Resources representative. (Def.'s 56.1 ¶¶ 56-58)
Arias counters that, although he received an employee handbook when he began working at AMEX, he did not learn of the company's "freedom from harassment" policy any time prior to his termination in 1999. (Arias Dep. at 272-73) Yet Arias' own testimony and actions belie the claim that he was unaware of the avenues of complaint available to him. Arias availed himself of these avenues on several occasions, sometimes to complain about harassment and sometimes to complain about other aspects of his job. In 1996, after Arias had a physical confrontation with another AMEX employee named Claude, Arias reported the incident to Yvonne Harris in AMEX's Human Resources Department, and Claude never bothered Arias again. (Def.'s 56.1 ¶¶ 101-02; Arias Dep. at 282-83) In the Spring of 1998, Arias felt that the porters were overworked and improperly supervised, so he reported these problems to Manny Perendez. (Def.'s 56.1 ¶¶ 87-88) Two weeks later, Arias was appointed as porter supervisor and given a raise. (Def.'s 56.1 ¶¶ 90-93). Finally, in January 1999, when Arias wanted to express disappointment about aspects of his promotion, he approached Suzanne Johnson, AMEX's Director of Human Resources. (Def.'s 56.1 ¶ 103) In each of these instances, the human resources personnel were polite and responsive to his complaints. (Def.'s 56.1 ¶¶ 89, 100, 104) In short, there is ample evidence, undisputed by Arias, that AMEX provided its employees with reasonable avenues of complaint and that Arias was familiar with those avenues.
B. Reasonableness of Failure to Report
Arias argues also that, even if an adequate grievance procedure was available to AMEX employees, his failure to report the alleged incidents of harassment could be considered reasonable in light of Long's admonition of Arias for "going over his head" after Arias reported problems in the department to Manny Perendez. (See Arias Aff. ¶¶ 5-6) According to Arias, a jury could find that he was intimidated by Long into remaining silent about his grievances and hold AMEX liable for all subsequent incidents of harassment, reported and unreported.
As Arias states, an employer is not insulated from Title VII liability when the plaintiff does not invoke his employer's internal grievance procedure because of the employer's own conduct. In Distasio v. Perkin Elmer Corp., 157 F.3d 55 (2d Cir. 1998), the Second Circuit concluded, inter alia, that where an employer's agent told an employee that "if you say something, you can't work here no more," id. at 60, a jury could find that the plaintiff reasonably believed that she would lose her job if she reported further incidents harassment. Id. at 65.
Arias attempts to draw an analogy between himself and the plaintiff inDistasio by asserting that after he complained to Manny Perendez about problems in the porter department, he was criticized by Long in early 1998 for telling other employees that he would go over Long's head. (Arias Aff. at ¶¶ 5-6) Arias submits an affidavit stating that after Long's rebuke, "I never felt comfortable approaching Mr. Long or human resources about any problems. I felt that if I reported a problem to Mr. Long or human resources, I would be reprimanded or lose my job." (Arias Aff. at ¶ 7) Yet the distinctions between Distasio and this case are readily apparent. First, in Distasio the plaintiff did not bring complaints after she was threatened. Here, by contrast, Arias continued to report problems to Suzanne Johnson after Long's admonition. Second, in Distasio, the plaintiff was threatened with termination if she reported further incidents. Here, by contrast, Arias was merely rebuked for saying he would bypass Long. In light of his own deposition testimony revealing that he utilized AMEX's internal grievance procedure both before and after Long's admonition, Arias' affidavit statement to the effect that he was uncomfortable raising grievances is insufficient to create a triable issue of fact as to whether Arias reasonably failed to complain about the harassment he allegedly suffered. Cf. Raskin v. Wyatt, 125 F.3d 55, 63 (2d Cir. 1997) ("A party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or by addition, contradicts the affiant's previous deposition testimony.")
C. AMEX's Knowledge of the Harassment
In the absence of evidence showing that AMEX did not provide a reasonable avenue for complaint or that Arias reasonably failed to utilize that avenue, AMEX can be held liable for the alleged hostile work environment only if AMEX knew of the alleged incidents of harassment but failed to take remedial measures. See Torres v. Pisano, 116 F.3d 625, 636 (2d Cir. 1997) ("The law is clear that an employer may not stand by and allow an employee to be subjected to a course of racial [and/or sexual] harassment by co-workers' or supervisors. Rather, once an employer has knowledge of the harassment, the law imposes upon the employer a duty to take reasonable steps to eliminate it." (citations and internal quotation marks omitted)). Because there is a genuine issue for trial with respect to AMEX's knowledge of the incidents of harassment, AMEX's motion for summary judgment on Arias' hostile work environment claim is denied.
Under Title VII, an official's actual or constructive knowledge of harassment is imputed to the employer when principles of agency law so dictate. Torres, 116 F.3d at 636. Thus, knowledge is imputed to an employer when an official is at a sufficiently high level in the company's management hierarchy to qualify as a proxy for the company,see Van Zant, 80 F.3d at 715, or the official is charged with a duty to act on the knowledge and stop the harassment, see Torres, 116 F.3d at 637 (citing Restatement (Second) of Agency § 272 cmt. a (1958)). Here, because Long was Arias' supervisor, his knowledge of the alleged harassment, should it be established, will be imputed to AMEX. See Torres, 116 F.3d at 637 (concluding that a supervisor's knowledge can be imputed to an employer "under the rule that, where the person who gained notice of the harassment was the supervisor of the harasser . . ., knowledge will be imputed to the employer on the ground that the employer vested in the supervisor the authority and the duty to terminate the harassment").
Arias contends that Long had actual notice that he was being harassed. A finding of actual notice requires that an agent of the employer be aware of facts that indicate the possibility of a hostile environment.See Note, Notice in Hostile Environment Discrimination Cases, 112 Harv. L. Rev. 1977, 1981 (1999) (collecting notice cases). According to AMEX, because Arias did not report the incidents of harassment prior to March 1, 1999, and none of the alleged incidents of harassment were witnessed by AMEX personnel, AMEX could not have been aware of any harassing conduct. (Def.'s Mem. at 8-9) Contrary to AMEX's suggestion, however, the relevant question is not whether Arias reported the harassment or whether an agent of AMEX witnessed the harassment — these are simply particular ways in which AMEX could have learned of the alleged harassment — but whether a representative of AMEX was aware of facts sufficient to establish an inference that a hostile environment existed.See, e.g., Dees v. Johnson Controls World Servs., 168 F.3d 417, 423 (11th Cir. 1999) (an employer can receive notice of actionable harassment from an employee other than the one harassed).
On its own, Arias' vague complaint to Long at the end of 1997 that SIAC employees were calling him names and bothering him was insufficient to put Long on notice of a hostile work environment because Arias did not specifically indicate to Long that he was experiencing racial harassment.See Murray, 57 F.3d at 250 (plaintiff dental student's complaint that a male patient "stared at her" and "tried to get her attention" did not put university on notice that she was the victim of sexual harassment because the plaintiff's comments gave no indication that the patient's actions were sexual or part of an ongoing course of sexual harassment); Schiraldi v. AMPCO Sys. Parking, 9 F. Supp.2d 213, 221 (W.D.N.Y. 1998) (a plaintiff's complaints to her supervisor that a co-worker "wouldn't leave me alone" and "called me names," and another plaintiff's request to her supervisor to "keep [the harassing co-worker] away from me, he's bothering me" were legally insufficient to put the employer on notice that the plaintiffs were being sexually harassed).
However, Arias has presented additional evidence that Long had notice of the racial harassment that Arias experienced. In response to questioning by counsel regarding whether he had heard Arias referred to "as being a Mexican or Columbian drug Lord or anything of the sort," Long answered: "The Columbian drug Lord rings a little bit of a bell, but I couldn't think of any one incident." (Long Dep. at 122) A jury might find that Long's vague awareness of a racial slur does not amount to awareness of facts that indicate the possibility of a hostile environment. On the other hand, a jury might find that, in light of his own testimony along with other evidence concerning Arias' experiences on the trading floor, Long knew that Arias was being harassed. In sum, with an admission in the record that Arias' supervisor knew that Arias was called a "Columbian drug lord" but took no remedial measures, summary judgment in favor of AMEX would be inappropriate. Thus, Arias has raised a genuine issue of material fact regarding AMEX's knowledge of the alleged incidents of harassment; the existence of that issue precludes summary judgment on Arias' hostile work environment claim.
Additionally, Arias alleges that "Sam," a SIAC supervisor from whom Arias and other porters would occasionally take orders, was present when SIAC employees called him names. (Arias Dep. at 175 ("Sam used to be present when they used to call me names, harass — names, racial names.")) Arias alleges also that he told Sam at some time in 1997 or 1998 "to tell the guys from SIAC to stop harassing me." (Arias Dep. at 122) Yet Arias concedes that SIAC was an independent firm with its own chain of command (Def.'s 56.1 ¶ 13), and presents no legal authority to support the proposition that an independent contractor's knowledge of harassment can be imputed to an employer merely because the contractor was able to instruct the plaintiff employee to do discrete tasks within his job description. Unless Arias can offer evidence that Sam was an agent of AMEX with a duty to act on his knowledge of the harassment or to report it to AMEX, see Torres, 116 F.3d at 636-37, or that Sam conveyed his knowledge of the harassment to someone at AMEX, Sam's knowledge is immaterial.
IV.
Section 704(a) of Title VII provides in relevant part that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [such employee] has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a) (2000). This provision is violated "when a retaliatory motive plays a part in adverse employment actions toward an employee, whether or not it was the sole cause . . . [or] when an employer is motivated by retaliatory animus, even if valid objective reasons for the discharge exist." Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033, 1039 (2d Cir. 1993).
A retaliation claim under Title VII has four elements. Plaintiff must show that (1) he was engaged in activity protected under anti-discrimination statutes, (2) defendant was aware of plaintiff's participation in the protected activity, (3) defendant took adverse action against plaintiff based upon his activity, and (4) a causal connection existed between plaintiff's protected activity and the adverse action taken by defendant. Lizardo v. Denny's Inc., 270 F.3d 94, 105 (2d Cir. 2001). AMEX argues that Arias' retaliation claim is legally insufficient because Arias cannot establish that he engaged in a protected activity prior to his demotion. Thus, according to AMEX, the record shows that no causal connection existed between the protected activity and defendant's adverse action. I agree.
In his complaint, Arias alleges that, after his altercation with Bravo on March 1, 1999, he notified NASDAQ/AMEX that he intended to complain of unlawful discrimination and harassment and that he was disciplined and demoted in retaliation for the notification and then fired when he complained about the demotion. (Compl. ¶¶ 29-32) However, Arias testified in his deposition that he never actually told anyone at AMEX that he would file a charge:
In his request for reconsideration, Arias suggests that AMEX took adverse employment action against him in retaliation for his complaints of harassment to Long starting in 1997. However, this allegation is not in Arias' complaint, which states that Arias was disciplined and demoted in retaliation for telling NASDAQ/AMEX that he intended to "make a complaint of unlawful discrimination and harassment." (Compl. ¶ 29)
Q: Did you ever tell Susan Johnson or anyone at AMEX after you got into the fight that you were going to file a charge of discrimination?
A: No.
Q: You never said you were going to file a charge of discrimination with a state agency?
A: No, I don't recall saying that.
(Arias Dep. at 339) Thus, Arias' own deposition testimony contradicts the allegation that Arias notified his employer of his intent to make a complaint of unlawful discrimination and harassment.
Arias attempts to rescue his retaliation claim by pointing out that at the meeting in Suzanne Johnson's office on June 1, 1999, Arias told Johnson that he wanted an attorney to review the letter laying out the new terms of his employment. (Arias Dep. at 310-11, 316-17) Moreover, Arias notes that his attorney, Christopher X. Maher, sent two letters to AMEX in May. In these letters, Maher referred to the harassment experienced by Arias, expressed a desire to resolve the situation amicably, and expressed concern that Johnson continued to communicate with Arias despite the fact that she knew he was represented by counsel. (Pl.'s 56.1, Ex. B) According to Arias, both Maher's letters and Arias' indication to Johnson on June 1 that he was represented by an attorney put AMEX on notice of Arias' intention to file a charge of discrimination.
Plaintiff correctly notes that, at one point in the previous opinion, I mistakenly replaced June 1, the date of the meeting in Johnson's office, with March 1, the date of the altercation. (Order at 27) This was a typographical error. As this Amended Opinion makes clear, the error did not affect the outcome of the motion for summary judgment on the retaliation claim.
The crucial flaw in Arias' account is that Arias admits in his deposition testimony and in his affidavit that, at the June 1 meeting, he told Johnson he wanted to consult with an attorney right after Johnson informed him of the new terms of his employment. (Arias Aff. ¶ 13; Arias Dep. at 316) Moreover, in Maher's May 4 letter, Maher stated that AMEX had already decided to make Arias' continued employment conditional on his receiving conflict resolution training and working in a non-supervisory capacity. (Pl.'s 56.1, Ex. B) Thus, even assuming that Maher's May 4 and May 29 letters conveyed to AMEX that Arias was considering a lawsuit, according to Maher himself, the decision to demote Arias and make his employment conditional on fulfilling specific requirements was made before he sent letters to AMEX that could be construed as a threat to sue. Arias' own version of the events leading up to his dismissal negates any causal connection between plaintiff's protected activity — threatening a lawsuit — and the adverse actions taken by defendant — demoting Arias and making his employment contingent on his accepting new employment terms. Because Arias has offered no factual support for the inference that a causal connection existed between his protected activity and the adverse actions taken by AMEX, his retaliation claim is dismissed.
In his request for reconsideration, Arias argues for the first time that Maher's April 15, 1999 letter to AMEX, which is attached to the request, put AMEX on notice that Arias was threatening litigation. Although Arias mentioned the April 15 letter in his original opposition brief, he did not submit a copy of the letter to the court. Thus, the April 15 letter need not be considered now. See Morse/Diesel, Inc. v. Fidelity Deposit Co. of Md., 768 F. Supp. 115, 116 (S.D.N.Y. 1991) (stating that, in a reargument motion, a party may not "advance new facts, issues or arguments not previously presented"). However, the rule barring the consideration of evidence that was not previously presented "is prudential, designed to ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matter." In re Assicurazioni Generali S.p.A. Holocaust Insurance Litigation, Nos. MDL 1374, M21-89, 2003 WL 145545, at *1 (S.D.N.Y. Jan. 21, 2003) (citations omitted). Here, because the motion for reconsideration has been granted as a result of an error in the court's previous opinion, the prudential considerations barring the introduction of new evidence in most cases do not apply with the same force. I will review the April 15 letter.
The April 15 letter simply requested that Arias' personnel file be released to Maher. Whatever Arias might argue about the more extensive May 4 letter, the April 15 letter, which said nothing about the reasons for requesting Arias' file, was not a threat to file a lawsuit. Notwithstanding Maher's April 15 letter, Arias has presented no evidence that the decision to demote him and make his employment conditional, conveyed to Maher on April 30, resulted from a threat to sue AMEX. The motion for summary judgment dismissing the retaliation claim was properly granted.
V.
In his opposition papers, Arias neither refutes nor even mentions AMEX's argument that Arias has failed to raise a genuine issue of material fact on either his claim of disability discrimination or his claim of unlawful disclosure. Therefore, he has abandoned these claims, and they are dismissed. See Frink Am., Inc. v. Champion Road Mach., Ltd., 48 F. Supp.2d 198, 209 (N.D.N.Y. 1999) (collecting cases supporting dismissal of abandoned claims).
* * *
For the reasons stated above, defendant's motion for summary judgment is granted in part and denied in part. The motion is denied with respect to Arias' hostile work environment claim because Arias has raised a triable issue of fact regarding AMEX's knowledge of the incidents of harassment. The motion is granted with respect to Arias' other claims. Defendant's request for attorney's fees associated with the motion for reconsideration is denied.
SO ORDERED: