Opinion
03-CV-334S.
January 16, 2005
DECISION AND ORDER
I. INTRODUCTION
In this case, Plaintiff James L. Williams alleges that his former employer, Timberlodge Steak House, discriminated against him in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). Specifically, Plaintiff contends that Defendant denied him bonuses, retaliated against him, subjected him to written reprimands leading to his constructive discharge, and failed to rehire him because he is an African-American.
Currently before this Court is Defendant Timberlodge's Motion for Summary Judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, Defendant's motion is granted in its entirety.
II. BACKGROUND
A. Facts
The following facts are undisputed for purposes of the instant motion, except where noted. Plaintiff began working as a cook for Defendant on May 25, 1995. (Def.'s Rule 56 Statement, ¶¶ 2-3; Williams Dep. 17:8-12). At all times relevant to Plaintiff's employment, Jerel Gunning was employed as Area Director of Operations for Timberlodge, and Tom D'Arcangelo was employed as Assistant Manager and Plaintiff's immediate supervisor. (Williams Dep. 37:15-21). During the last year of Plaintiff's employment, Anthony Niecpiel acted as the General Manager of Timberlodge, having replaced Gary Rechter. (Niecpiel Aff., ¶ 2).
Plaintiff did not respond to Timberlodge's Statement of Material Facts ("Def.'s Rule 56 Statement"). This Court finds that the facts contained in Timberlodge's Statement are clearly supported by unrefuted documentation in the record. As such, it is unnecessary to deem these facts admitted strictly by operation of Rule 56.1(c) of the Local Rules of Civil Procedure for the Western District of New York, which provides that facts contained in the moving party's Rule 56 Statement are deemed admitted unless controverted by the opposing party.
Portions of Plaintiff's deposition testimony ("Williams Dep.") are attached as Exhibit E to the Affidavit of Michael R. Moravec.
Plaintiff was evaluated on a yearly basis over his seven years of employment with Timberlodge, three times by Tom D'Arcangelo. (Moravec Aff., Ex. G). Plaintiff's evaluations indicate that he met or exceeded the expectations of Timberlodge based on almost every performance criterion. (Id.). By his seventh year of employment with Timberlodge, Plaintiff received a total of fifteen raises and was earning $12.00 an hour. (Moravec Aff., Ex. F). Plaintiff was one of the highest paid employees at Timberlodge at the time he left his position. (Williams Dep. 39:21-40:7).
During his years of employment at Timberlodge, Plaintiff claims that Tom D'Arcangelo, his immediate supervisor, yelled, screamed, and embarrassed him in front of other Timberlodge employees. (Williams Dep. 52:8-53:22). According to Plaintiff, this offensive treatment did not appear to be motivated or related to race and was directed towards numerous Caucasian employees, as well as Plaintiff. (Williams Dep. 50:2-11). Specifically, Plaintiff described how Tom D'Arcangelo verbally harangued Timberlodge employees Michael Holliday, Randy Schul, Deanna Waterstrom, Milly Reicher, and David Thomas, causing each employee to quit or be fired. (Williams Dep. 40:4-14; 44:9-46:14; 49:7-19; 108:11-109:19). All of these employees are Caucasian. (Id.). According to Deanna Waterstrom's sworn statement, at the time of her employment, "Tom D'Arcangelo had a problem with almost every employee. However his day was going depended on how he treated you. . . . [H]e has gotten very hostile, and during that time[,] whoever was around, he would take it out on them. He would throw things and break things and verbally abuse other employees." (Waterstrom Aff., ¶ 1).
This employee is improperly referred to in the deposition transcript as Deanna Nanstrom. (Williams Dep. 44:18-19).
At his deposition, Plaintiff stated that he knew that Tom D'Arcangelo was a racist who often used the "N word." (Williams Dep. 135:17-20). According to Plaintiff, Timberlodge never employed more than two black employees at a time, thereby enforcing an unofficial quota of sorts. (Williams Dep. 135:20-136:4). Plaintiff alleges that in 1998 or 1999, when asked why Plaintiff was the only black person employed at the restaurant, Tom D'Arcangelo responded that "too many peas in a soup make bad soup." (Williams Dep. 84:4-20). Plaintiff also contends that in May 2000, Tom D'Arcangelo told him "you're the only black mother fucker on the line." (Williams Dep. 84:21-86:3). Timberlodge's Employee Handbook contains a non-discrimination and harassment policy and sets forth the grievance policy and complaint procedures. (Moravec Aff., Ex. K). Despite the availability of these procedures, Plaintiff never made a complaint of racial discrimination or harassment to Timberlodge management. (Williams dep. 88:8-89:13; Niecpiel Aff. ¶ 12; Gunning Aff. ¶ 12).
On three occasions, Timberlodge's management asked Plaintiff to fill in as a temporary kitchen manager. (Williams Dep. 62:2-6). In each instance, Plaintiff assumed more work hours, and was paid a weekly salary, instead of his regular hourly rate of pay. (Gunning Aff., ¶¶ 4-6; Moravec Aff., Ex. H). Plaintiff began working as a temporary kitchen manager for the third and final time in June 2002. (Williams Dep. 64:13-23). According to Plaintiff, he agreed to take the temporary management position at a weekly salary of $550.00 because Anthony Niecpiel advised him that no overtime would be available to hourly employees. (Williams Dep. 65:7-23).
Plaintiff was never promised a bonus of any kind. (Gunning Aff., ¶ 6; Williams Dep. 65:7-66:10). Timberlodge has a management compensation policy that provides for quarterly bonuses for permanent members of management only. (Moravec Aff., Ex. J). No such bonus policy or practice exists for temporary management employees and Plaintiff was aware of this fact. (Williams Dep. 77:18-23; Gunning Aff. ¶ 8). Plaintiff concedes that he was never a permanent member of Timberlodge management. (Williams Dep. 33:5-34:1). According to Plaintiff, two weeks after he accepted the temporary management position, he learned that Timberlodge had issued overtime payments to Jason D'Arcangelo, a Caucasian employee. (Williams Dep. 66:2-16).
On September 11, 2002, Plaintiff told Tom D'Arcangelo that he no longer wished to serve as a temporary kitchen manager, and Mr. D'Arcangelo agreed that Plaintiff could return to his hourly position. (Williams Dep. 78:1-29-7). Although they did not discuss a new schedule, Plaintiff presumed that he would return to his "regular schedule." (Williams Dep. 79:2-18). That same evening, Plaintiff advised Bob Mulholland, the employee who had assumed his hourly shifts, that he would be taking his shifts back. (Williams Dep. 80:4-14). On September 12, 2002, Tom D'Arcangelo questioned Plaintiff about this unapproved shift change. (Williams Dep. 81:2-82:4). A heated discussion ensued, during which Plaintiff criticized Mr. D'Arcangelo's work performance. (Williams Dep. 81:2-84:3). At no time during this conversation did Tom D'Arcangelo make any racially derogatory comments to Plaintiff. (Williams Dep. 83:23-84:3).
This employee is identified as "Mulhollad" and "Mohalen" in the various documents submitted to this Court.
Tom D'Arcangelo immediately reported to Anthony Niecpiel that Plaintiff had been insubordinate and disruptive. (Niecpiel Aff. ¶ 5). Later that day, Plaintiff complained to Anthony Niecpiel about Tom D'Arcangelo's work performance. According to Plaintiff, as a temporary manager, he was working 45 hours a week, while Tom D'Arcangelo was averaging less than 35 hours a week in a permanent management position. (Williams Dep. 87:16-88:20). Plaintiff also opined that Anthony Niecpiel was not managing Tom D'Arcangelo properly, and threatened to go to Mr. Niecpiel's supervisor because he was "not taking care of the problem." (Williams Dep. 87:16-88:23). However, Plaintiff never complained to Anthony Niecpiel that he had been discriminated against or harassed based on his race. (Williams Dep. 89:1-13; Niecpiel Aff. ¶ 12).
Timberlodge's Employee handbook contains a policy, which provides that an employee may be automatically terminated for insubordination towards management, for refusal or failure to follow management instructions, or for verbal abuse. (Moravec Aff. Ex. K). Plaintiff received and signed two written reprimands for insubordinate behavior on September 12, 2002 from Tom D'Arcangelo and Anthony Niecpiel, respectively. (Moravec Aff. Ex. i). Both reprimands explicitly state that "[a]ny further insubordination will lead to disciplinary action, leading up to and including termination." (Moravec Aff. Ex. i). Before the end of his shift that day, Plaintiff decided to quit his job at Timberlodge. (Williams Dep. 103:1-21). On his way out of the restaurant, he walked past Tom D'Arcangelo and Anthony Niecpiel and said "have a nice day." (Id.).
Timberlodge's Director of Area Operations Jerel Gunning telephoned Plaintiff on the following day, September 13, 2002. (Williams Dep. 104:7-106:23). According to Plaintiff, Mr. Gunning told him that he should have called him and explained his frustration with Tom D'Arcangelo and Anthony Niecpiel before quitting his job. (Id.). Plaintiff could not recall if he ever complained to Mr. Gunning that he had been subjected to racial discrimination while working at Timberlodge. (Williams Dep. 106:18-23). After quitting his job, Plaintiff never returned to Timberlodge and never asked to be rehired. (Williams Dep. 123:13-16). He was replaced by an African-American employee. (Williams 135:23-136:1).
B. Procedural History
Plaintiff commenced this action pro se on April 25, 2003, by filing a Complaint in the United States District Court for the Western District of New York. On May 2, 2003, this Court granted Plaintiff's Motion to Proceed in Forma Pauperis.
Defendant filed a Motion for Summary Judgment on June 29, 2004. Plaintiff failed to file anything in response to Defendant's Motion until after this Court entered a third scheduling order on October 7, 2004.
In support of this Motion, Defendant filed a Memorandum of Law, Affidavit by Michael Moravec, Esq., with Exhibits, Affidavit by Jerel Gunning, Affidavit by Anthony Niecpiel, a Reply Memorandum of Law and a Reply Affidavit by Michael Moravec, Esq. with Exhibit. Plaintiff filed the following documents in opposition to Defendant's Motion for Summary Judgment: an Affidavit by Deanna Waterstrom, an undated and unsworn Statement by Reginald Penn, and an unsigned, unsworn and unverified Statement by Plaintiff.
However, Defendant's reply Memorandum of Law and Reply Affidavit filed September 16, 2004, indicate that Plaintiff submitted documents to Defendant, which were not filed with this Court in the first instance.
III. DISCUSSION
Plaintiff's Complaint raises three principal claims against Defendant. First, that Defendant discriminated against him based on his race. Specifically, Plaintiff contends that because of his race, Defendant subjected him to written reprimands, denied him bonuses afforded to Caucasian employees, and failed to rehire him. Second, Plaintiff alleges that Defendant retaliated against him for an unspecified reason. Finally, Plaintiff contends that Defendant constructively discharged him.Defendant argues that it is entitled to summary judgment on each of Plaintiff's claims. This Court will address each claim in turn.
A. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is warranted where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under governing law." Id. In a case where the non-moving party bears the ultimate burden of proof at trial, the movant may satisfy its burden by pointing to the absence of evidence supporting an essential element of the non-moving party's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986).
In deciding a motion for summary judgment, the evidence and the inferences drawn therefrom must be "viewed in the light most favorable to the party opposing the motion." Addickes v. S.H. Kress Co., 398 U.S. 144, 158-59, 90 S. Ct. 1598, 1609, 26 L.Ed. 2d 142 (1970). "Only when reasonable minds could not differ as to the import of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). Ultimately, the function of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
In the context of employment discrimination cases, the Second Circuit has cautioned district courts to use care when deciding summary judgment motions because "the ultimate issue to be resolved in such cases is the employer's intent, an issue not particularly suited to summary adjudication." Eastmer v. Williamsville Cent. Sch. Dist., 977 F. Supp. 207, 212 (W.D.N.Y. 1997) (quoting Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994)). However, "[t]he summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). Indeed, the Second Circuit has noted that "the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation." Id.
In cases involving pro se litigants, courts should generally afford those litigants "special solicitude . . . when confronted with motions for summary judgment." Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1998). A pro se litigant's supporting papers should be read "liberally . . . [and] interpret[ed] . . . to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
B. Discrimination Claims
1. McDonnell Douglas Framework
Title VII of the Civil Rights Act of 1964 provides, in pertinent part, that "[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's . . . race or color. . . ." 42 U.S.C. § 2000e-2(a)(1).
In cases such as this, where there is no overt evidence of discriminatory conduct, courts employ the three-step burden-shifting framework outlined by the Supreme Court inMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25, 36 L. Ed. 2d 668 (1973). Initially, the plaintiff must establish a prima facie case of discrimination by showing that: (1) he is a member of a protected class; (2) he is qualified for his position; (3) he suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination. Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (citing McDonnell Douglas, 411 U.S. at 802).
If the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate non-discriminatory reason for the employment action. Weinstock, 224 F.3d at 42 (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207 (1981)). If the defendant makes this showing, "the presumption of discrimination arising with the establishment of the prima facie case drops from the picture." Weinstock, 224 F.3d at 42 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 2749, 125 L.Ed. 2d 407 (1993)).
To avoid summary judgment at that point, the plaintiff bears the burden of producing "evidence that the defendant's proffered, non-discriminatory reason is a mere pretext for actual discrimination." Weinstock, 224 F.3d at 42. "In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination." Id. However, "[i]t is not enough . . . to disbelieve the employer; the factfinder must [also] believe the plaintiff's explanation of intentional discrimination." Id. (quoting St. Mary's, 509 U.S. at 519).
In the instant matter, Defendant concedes that Plaintiff, an African-American, is a member of a protected class and that he was qualified for his position as a cook at Timberlodge. However, Defendant argues that no reasonable jury could conclude from the record that Plaintiff suffered any adverse employment action giving rise to an inference of discrimination.
2. Reprimands
A plaintiff suffers an adverse employment action if he or she experiences a "materially adverse change" in the terms and conditions of employment. Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). "To be materially adverse, a change in working conditions must be `more disruptive than a mere inconvenience or an alteration of job responsibilities.'" Id. (quoting Crady v. Liberty Nat'l Bank Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). Such a change "might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." Galabya, 202 F.2d at 640 (internal citations omitted).
District Courts in this Circuit have consistently held that warnings and reprimands, standing alone, do not generally constitute adverse employment action for purposes of Title VII.See Bennett v. Watson Wyatt Co., 136 F. Supp. 2d 236, 246-48 (S.D.N.Y. 2001) (collecting cases). Where negative evaluations do not lead to immediate tangible harm or consequences, they do not constitute adverse actions materially altering the conditions of employment. Valentine v. Standard Poor's, 50 F. Supp. 2d 262, 284 (S.D.N.Y. 1999), aff'd, 205 F.3d 1327 (2d Cir. 2000).
Consistent with these holdings, this Court finds that Plaintiff's written reprimands do not rise to the level of adverse employment actions, because they were not accompanied by adverse results. While Plaintiff was reprimanded for his insubordination, he was permitted to return to the hourly schedule at his request with no diminution in wages or material responsibilities. Although Plaintiff's written reprimands warn that any further acts of insubordination could result in disciplinary action, the record is clear that no such action was taken against Plaintiff at that time and that the terms of his employment did not change for the worse. To the contrary, based on the availability of overtime compensation, the hourly position that Plaintiff resumed after being reprimanded was potentially more profitable than the temporary management position. Moreover, the hourly position provided Plaintiff with more flexibility with respect to the hours that he worked. In short, the terms and conditions of Plaintiff's employment were more favorable after he was reprimanded than before he was reprimanded. As such, these reprimands are not actionable under Title VII.
Even if they were, Plaintiff has not produced any evidence tending to show that he was reprimanded under circumstances giving rise to an inference of racial discrimination. For example, there is no evidence that Caucasian employees who allegedly behaved in an insubordinate manner towards Tom D'Arcangelo were treated more favorably than Plaintiff. To the contrary, the record reflects that two Caucasian employees, Deanna Waterstrom and Mike Holliday, were effectively terminated from Timberlodge without written warning. According to Plaintiff's deposition testimony, while reprimanding former kitchen supervisor Mike Holliday, Tom D'Arcangelo "got into his face and started yelling and screaming at him, so he kept telling him to get out of his face, and he kept getting in his face." (Williams Dep. 41:4-43-16). The altercation turned physical, and Mr. Holliday was forced to walk off the job. (Id.)
D'Arcangelo was similarly abusive towards waitress Deanna Waterstrom. At his deposition, Plaintiff testified that "Tom [D'Arcangelo was] talking about her dad and how spoiled she is and then he was calling her a little fat B." (Williams Dep. 46:2-49:6). As a result, Ms. Waterstrom quit or was fired. (Id.). Immediately after this episode, Anthony Niecpiel told Tom D'Arcangelo that he should not have yelled at Ms. Waterstrom, but instead should have issued written reprimands for her conduct. (Williams Dep. 455:23).
Plaintiff's deposition testimony reveals that D'Arcangelo was indiscriminate about whom he directed his anger towards. In general, Plaintiff testified, that D'Arcangelo "would rather embarrass [an employee] than pull [them] into the office and talk to [them] about a situation," (Williams Dep. 42:12-20) and that "[D'Arcangelo] just don't [sic] leave people alone." (Id.). In particular, this Court acknowledges the following excerpts from William's deposition:
Q: Now, the problem with D'Arcangelo, that those employees had with Tom, did any of them relate to . . . race of any kind or just general?
A: General like harassment.
Q: So none of it had specifically to do with race to your knowledge?
A. No.
(Williams Dep. 50:2-11). Based on this record, this Court finds that no reasonable jury could conclude that Plaintiff was reprimanded because of his race. As such, Plaintiff has failed to establish his prima facie case of racial discrimination.
Even assuming that Plaintiff had established his prima facie case, Defendant has articulated a legitimate, non-discriminatory reason for warning and reprimanding Plaintiff. It is undisputed that during a heated exchange, Plaintiff criticized Tom D'Arcangelo's work ethic and performance. Immediately thereafter, Plaintiff faulted Anthony Niecpiel for not supervising D'Arcangelo more closely and "not taking care of the problem." (Williams Dep. 87:16-88:23). According to Defendant, this disruptive behavior formed the basis for issuing the two written reprimands. The Court notes that under the terms of the Timberlodge Employee Handbook, Defendant rightfully could have terminated Plaintiff for this conduct, but opted instead to reprimand him. (Moravec Aff. Ex. K).
Defendant having articulated this legitimate, non-discriminatory reason for disciplining Plaintiff, Plaintiff bears the burden of showing Defendant's proffered explanation is false and a mere pretext for racial discrimination under theMcDonnell Douglas burden-shifting framework. Plaintiff has failed to meet this burden. In sum, this Court finds that the evidence, taken as a whole, simply does not support a rational inference of discrimination. Moreover, in this Court's view, no reasonable factfinder could conclude that Defendant's proffered explanation was either false or a pretext for racial discrimination.
3. Unequal Terms and Conditions in Employment
To make a prima facie Title VII disparate pay claim, a plaintiff must demonstrate: (1) that he is a member of a protected class; (2) that he was paid less than similarly situated non-members of his protected class; and (3) evidence of discriminatory animus. Cruse v. G J United States Publishing, 96 F. Supp. 2d 320, 326 (S.D.N.Y. 2000); Bandhan v. Lab. Corp. of Am., 234 F. Supp. 2d 313, 317 (S.D.N.Y. 2002). To be considered "similarly situated," the individual to whom a plaintiff attempts to compare himself must be similarly situated in all material respects. Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997) (internal quotations omitted). While the circumstances of the two employees do not have to be identical, "there should be a reasonably close resemblance of facts and circumstances . . . in significant respects." Lizardo v. Denny's, Inc., 270 F.3d 94, 101 (2d Cir. 2001).
It is undisputed that Plaintiff, as an African American man, is a member of a protected class. With respect to the second element, Plaintiff concedes that he was one of the highest paid employees at Timberlodge at the time he left his employment. (Williams Dep. 39:21-40:7). Plaintiff contends, however, that he was deprived of a management bonus while working as a temporary kitchen manager because of his race.
This Court finds that no rational jury could find that Plaintiff was similarly situated to the Caucasian employees who received quarterly bonuses. The uncontradicted evidence is that Timberlodge does not grant bonuses to temporary management employees, only to permanent members of management. (Williams Dep. 77:18-23; Gunning Aff. ¶¶ 7 9). Specifically, Timberlodge's management compensation plan provides that permanent members of management are eligible for bonuses or "performance incentives" based on the restaurant's profitability over a quarterly period. (Moravec Aff., Ex. J). It is also uncontested that Plaintiff assumed a temporary kitchen management position on three occasions, but was never a permanent member of management. (Williams Dep. 33:16-34:1; 62:2-6; Gunning Aff. ¶¶ 4-6, 9). In short, because of his temporary status, Plaintiff was not similarly situated to those members of management who were accountable for quarterly performance of the restaurant. As such, Plaintiff's prima facie case for disparate pay fails.
Even if Plaintiff established that he was similarly situated to those Caucasian managers who did receive bouses, Plaintiff has failed to offer any evidence suggesting that he was denied a quarterly bonus based on racial animus. The record clearly reflects that Plaintiff was frustrated and resentful that he was forced to work over forty hours a week, as a temporary assistant manager, while Tom D'Arcangelo, as the permanent assistant manager, was averaging thirty-five hours a week. (Williams 88:17-23). Plaintiff concedes, however, that these circumstances, which lead to him quitting his employment at Timberlodge, were unrelated to race. (Williams Dep. 86:4-3-89:3). This concession is fatal to Plaintiff's prima facie case based on disparate pay.
4. Failure to Rehire
Under Title VII, the failure to rehire a member of a protected class constitutes an adverse employment action. 42 U.S.C. § 2000-e-2(a). A failure to rehire claim is subject to the burden shifting analysis of McDonnell Douglas. See, e.g., Payne v. McLemore's Wholesale Retail Stores, 654 F.2d 1130, 1141-42 (5th Cir., 1981). In the instant matter, Plaintiff contends that Defendant did not rehire him after he left his employment. It is undisputed, however, that Plaintiff never reapplied or sought to be re-employed at Timberlodge after he quit his employment on September 12, 2002. (Williams Dep. 123:13-16). As such, Timberlodge could not have failed to rehire Plaintiff, as he claims. Accordingly, Plaintiff has failed to establish a prima facie case based on failure to rehire.
5. Retaliation
Title VII makes it unlawful for employers to retaliate against employees who participate in protected activities, such as filing a discrimination complaint. 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, Plaintiff must show that: (1) he participated in a protected activity; (2) his participation was known to the defendant; (3) he suffered an adverse employment action; and (4) a causal connection existed between the protected activity and the adverse employment action.Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 443 (2d Cir. 1999). If Plaintiff establishes a prima facie case of retaliation, the burden shifts to Defendant under theMcDonnell Douglas framework. Id.
In the instant case, Plaintiff has failed to establish, or even assert, that he participated in a protected activity. It is undisputed that prior to quitting his employment at Timberlodge, Plaintiff never complained of racial discrimination or harassment to any member of Timberlodge management. (Williams Dep. 81:2-84:3; 87:21-89:16). Moreover, there is no evidence that Plaintiff filed a charge of racial discrimination, or testified or participated in an investigation or proceeding related to such a charge before quitting his job. As previously noted, Plaintiff never reapplied for employment with Timberlodge after quitting on September 12, 2002. As such, Defendant could not have retaliated against Plaintiff for participating in a protected activity. Accordingly, Plaintiff has not established a prima facie case for retaliation under Title VII.
6. Constructive Discharge
To present a prima facie case of discriminatory discharge under Title VII, a plaintiff must show that he was either actually or constructively discharged, and that "the discharge occurred in circumstances giving rise to an inference of discrimination on the basis of [his] membership in a protected class." Grey v. City of Norwalk Bd. of Educ., 304 F. Supp. 2d 314, 323 (D. Conn. 2004) (quoting Terry v. Ashcroft, 336 F.3d 128, 152 (2d Cir. 2003)). An employee is constructively discharged when his employer, rather than discharging him directly, intentionally creates an intolerable work atmosphere that forces him to quit voluntarily. Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 73 (2d Cir. 2000) (citingChertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996).
The Second Circuit has explained that working conditions are intolerable when, viewed as a whole, "they are so difficult or unpleasant that a reasonable person in the employee's shoes would [feel] compelled to resign." Chertkova, 92 F.3d at 89. Working conditions that are merely "difficult or unpleasant" are not sufficient to sustain a claim for constructive discharge. See, e.g., Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1993); Stetson v. NYNEX Serv. Co., 995 F.2d 355, 361 (2d Cir. 1993). Unless the evidence is sufficient to permit a trier of fact to find that the employer deliberately created intolerable working conditions, "a claim of constructive discharge should be dismissed as a matter of law, whether by setting aside the verdict or by summary judgment." Spence v. Maryland Cas. Co., 995 F.2d 1147, 1156 (2d Cir. 1993) (internal citations omitted).
Based on Plaintiff's testimony and the record evidence, this Court finds that no rational juror could conclude that Plaintiff was forced to quit his job under circumstances giving rise to an inference of discrimination based on race. While it is clear that Tom D'Arcanagelo was an explosive and difficult supervisor, the record reflects that he was verbally abusive towards nearly every one of his employees, regardless of race or gender. According to Plaintiff's testimony, nearly all of the employees who were fired by Tom D`Arcangelo or quit because of his alleged misconduct were Caucasian. Moreover, Plaintiff concedes that Tom D'Arcangelo's mistreatment of employees did not appear to be motivated by race. (Williams Dep. 50:2-11).
Plaintiff does contend, however, that Tom D'Arcangelo made racially derogatory comments to him on two occasions. These statements warrant this Court's attention. Specifically, Plaintiff alleges that in 1998 or 1999, when asked why Timberlodge employed so few African-American employees, Tom D'Arcangelo opined that "too many peas in the soup make bad soup." On a second occasion in May of 2000, Tom D'Arcangelo told Plaintiff that he was "the only black mother fucker on the line." (Williams Dep. 84:4-20;84:21-86:3). Plaintiff does not suggest, however, and the record does not reflect that these offensive comments created work conditions so onerous that a reasonable person would have felt compelled to resign. See e.g., Petrosino v. Bell Atlantic, 385 F.3d 210, 230 (2d Cir. 2004). Nor does it appear that these comments compelled Plaintiff to resign.
The substantial gap between the dates of Tom D'Arcangelo's purported harassment and Plaintiff's resignation belies any connection between these offensive comments and Plaintiff's discharge. See, e.g., Parisi v. Buffalo Mun. Housing Auth., No. 01-CV-0171E(Sr), 2003 WL 21382893, at *6 (W.D.N.Y. Feb. 14, 2003). Several Circuits have held that if a plaintiff does not leave his or her position within a reasonable time after last being the subject of discrimination, he or she cannot prevail under a constructive discharge theory. Smith v. Iron Works Corp., 943 F.2d 164, 167 (1st Cir. 1991); see also Sweeney v. West, 149 F.3d 550, 558 (7th Cir. 1998) (holding that plaintiff's resignation, almost two years after the last reported incident of mistreatment, suggests that plaintiff's was not the type of "repulsive workplace that might compel an employee to resign"); Jett v. Dallas Indep. Sch. Dist., 798 F.2d 748, 755-56 (5th Cir. 1986) (finding that plaintiff was not constructively discharged under circumstances where the alleged discriminatory conduct took place in March 1983, but plaintiff did not resign until August 1983);Hirchfeld v. New Mexico Corr. Dep't, 916 F.2d 572, 580 (10th Cir. 1990) (holding that there was no constructive discharge where four months elapsed between the last alleged incident of discrimination and plaintiff's resignation).
At the time Plaintiff quit his job on September 12, 2002, over two years had passed since Tom D'Arcangelo's last purported comment to Plaintiff. As such, this Court finds that no reasonable jury could conclude that Plaintiff was compelled to resign because of his alleged harassment. Accordingly, Plaintiff's claim constructive discharge under Title VII must fail.
IV. CONCLUSION
For the foregoing reasons, this Court finds that Defendant is entitled to summary judgment with respect to Plaintiff's discrimination, retaliation and constructive discharge claims. Even viewing all of the facts in the light most favorable to Plaintiff, no reasonable trier of fact could conclude that Plaintiff was the victim of racial discrimination, retaliation or constructive discharge.
V. ORDERS
IT HEREBY IS ORDERED that Defendant's Motion for Summary Judgment (Docket No. 17) is GRANTED.FURTHER, that the Clerk of the Court is directed to take the steps necessary to close this case.
SO ORDERED.