DocketNumber: No. 10 Civ. 9168 (SAS)
Citation Numbers: 860 F. Supp. 2d 284
Judges: Scheindlin
Filed Date: 2/7/2012
Status: Precedential
Modified Date: 11/26/2022
OPINION AND ORDER
I. INTRODUCTION
Patrick “Tony” Campbell brings this diversity action against Célico Partnership, d/b/a Verizon Wireless, Inc. (hereinafter “Verizon”),
II. BACKGROUND
A. Undisputed Facts
Plaintiff began his career at Verizon in 2000 as a store manager.
In 2005, plaintiff applied for, but was not awarded, the position of District Manager (“DM”) for Verizon’s Manhattan stores; instead, he became the DM of the Westchester/Putnam Zone.
In 2009, plaintiff accepted a transfer to the position of DM of Zone 9, in Manhattan.
For the first three months as DM of Queens and Brooklyn, plaintiff ranked eleventh out of sixteen DM’s in July 2009, thirteenth out of sixteen DM’s in August 2009, and eleventh out of sixteen DM’s in September 2009.
In the middle of September 2009, Scribner emailed Marielena McDonald (an HR employee) seeking to demote plaintiff.
Around the same time, Devlin and his supervisor, David Small, paid a surprise visit to one of plaintiffs stores.
In mid-October 2009, Scribner (in consultation with plaintiff, Lambert, and McDonald), drafted an Overall 30-day PIP for plaintiff.
In December 2009, plaintiffs Performance Appraisal ranked him as “developing,” the lowest possible score.
In January 2010, plaintiff went on leave to care for his sick father and was not placed on the Final PIP until he returned in April 2010.
B. Disputed Facts
1. Plaintiffs Version
Campbell does not deny the general time line of events, but characterizes most of the transfers and PIPs as part of “Devlin’s discriminatory plot” to have him terminated.
Plaintiff states that he was not hired for the position of Director of Regional Sales in 2008 because, when asked about integrity during his interview with Devlin, he stated that “a white Verizon Wireless employee had less integrity than [he] did.”
Campbell claims that during the time he was DM of Manhattan, Zone 9, the reductions of staff in his zone “were more extreme”
Plaintiff does not deny that his sales numbers were low, but he blames his low sales numbers on the quota system, which he claims was manipulated by Devlin and applied “discriminatorily based on [plaintiff’s] race.”
According to Plaintiff, Devlin ordered that he be placed on the NPS PIP in retaliation for a prior complaint of discrimination, but he does not specify when this complaint was lodged.
Even though October 2009 was the first time plaintiff lodged a formal complaint of race discrimination with Lambert, plaintiff states that he also complained to McDonald in June 2009 and directly to Scribner.
Plaintiff claims that he was not given a true opportunity to succeed and that by the time he was placed on the PIPs, Verizon “had decided ... that [p]laintiff would
2. Defendant’s Version
Defendant provided evidence that Frank Campbell was promoted to DM of Manhattan in 2005 over plaintiff because he had more seniority, having worked for Verizon since 1996.
Contrary to plaintiffs assertion that his Manhattan stores lost more employees than other New York Metro Zones, Verizon provided an affidavit stating that during this time “22 Manhattan employees were laid off, 11 from Zone 8 and 11 from Zone 9.”
During his deposition, Devlin testified that it was Scribner who decided to transfer plaintiff from Manhattan to Queens and merely informed Devlin of his choice.
Devlin further testified that the decision to discipline plaintiff over the NPS tampering incident was “up to Mike Scribner and the HR Department;”
Defendant disputes that the Final PIP was extended another month as a means to discriminate against plaintiff. According to Verizon, to be “taken off a PIP requires consistent improvement,”
III. LEGAL STANDARDS
A. Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
In a summary judgment setting, “[t]he burden is on the moving party to demonstrate that no genuine issue respecting any material fact exists.”
In deciding a motion for summary judgment, a court must “ ‘construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.’ ”
Summary judgment may be proper even in workplace discrimination cases, which tend to be very fact-intensive, because “ ‘the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials- — -apply no less to discrimination cases than to other areas of litigation.’ ”
B. NYCHRL
Campbell brings his discrimination claims under the NYSHRL and the
[i]t shall be an unlawful discriminatory practice ... [f]or an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment.118
Courts have previously interpreted the NYCHRL as being coextensive with Title VII and the NYSHRL, but by enacting the Local Civil Rights Restoration Act of 2005 (“Restoration Act”),
Under the Restoration Act, the NYCHRL “explicitly requires an independent liberal construction analysis in all circumstances, even where [s]tate and federal civil rights laws have comparable language.”
Under the McDonnell Douglas •framework, an employee initially bears the burden of producing evidence sufficient to support a prima facie case of discrimination.
Notably, in order to raise an issue of fact that is sufficiently material to defeat a motion for summary judgment, the plaintiff must produce enough evidence to support a rational finding that the defendant’s explanation for the adverse action is actually a pretext to disguise discrimination.
“The factfinder’s disbelief of the reasons put forward by the defendant ... may, together with the elements of the prima facie case, suffice to show intentional discrimination.”
1. Statute of Limitations
Campbell’s NYSHRL and NYCHRL claims are subject to a three-year statute of limitations.
Under the continuing violation exception, where a “plaintiff has experienced a ‘continuous practice and policy of discrimination, ... the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it.’ ”
In Williams v. New York City Housing Authority, a New York appellate court addressed the continuing violation doctrine in the context of the NYCHRL, stating “the Restoration Act’s uniquely remedial provisions are consistent with a rule that [does not] penalize[ ] workers who hesitate to bring an action at the first sign of what they suspect could be discriminatory trouble .... ”
2. Failure to Promote
The courts have yet to establish a test for analyzing failure to promote claims under the NYCHRL. To establish a prima facie case of discrimination for failure to promote under Title VII a plaintiff must show that: “1) [he] ‘is a member of a protected class;’ 2) [his] job performance was satisfactory; 3) [he] applied for and was denied promotion to a position for which [he] was qualified; and 4) the position ‘remained open and the employer continued to seek applicants.’ ”
3. Hostile Work Environment
“To make out a successful hostile work environment claim, a plaintiff must show that ‘the workplace is permeated with discriminatory intimidation, ridicule, and insult, that ... alter[s] the conditions of the victim’s employment.’ ”
4. Discriminatory Discharge
Because McDonnell Douglas addressed a failure to hire claim, “discharge cases do not fit as neatly under the wording of [its] prima facie case formula.”
Under the Second Circuit’s requirements a plaintiff makes out a prima facie case of discriminatory discharge under Title VII if he: “(1) belongs to a protected class, (2) was qualified for the position he held, (3) experienced an adverse employment action, and (4) the adverse employment action occurred under circumstances that give rise to an inference of discrimination.”
While some cases have held that “[a] prima facie case of race discrimination under the NYCHRL contains the same elements as those required under Title VII,”
IV. DISCUSSION
A. Failure to Promote
The crux of plaintiffs failure to promote claim is that he was treated unfairly by Devlin and other employees who were controlled by Devlin. Plaintiff states that Devlin withheld promotions that were awarded to non-African-American employees, but he only submits evidence that he applied for two of these positions.
1. 2005: DM of Manhattan Zone 9 Position
In 2005, plaintiff was not awarded the position of DM of the Manhattan Zone.
Failure to promote is a “discrete act” as defined by the Supreme Court in Morgan
2. 2008: Director of Regional Sales Position
It is undisputed that plaintiff is a member of a protected class and that he applied for, but was denied, the promotion to Director of Regional Sales. However, the position was awarded to Scribner, who is a member of the same protected class as plaintiff, which “undercuts [his] claim of racial discrimination.”
3. Other Positions Generally
Campbell lists generally “six other director positions” that he was not awarded.
B. Discriminatory Transfer
In April 2006, plaintiff was transferred to Brooklyn and McCarthy replaced him in Westchester. Plaintiff claims that this transfer was made in retaliation for his failure to quell certain union activity, but he does not provide any evidence to connect this transfer to later actions that occurred within the limitations period. While McCarthy did eventually become plaintiffs supervisor and was responsible for placing plaintiff on the Final PIP, plaintiff does not present facts that connect his 2006 transfer to any allegedly discriminatory treatment that occurred during the limitations period. For this reason, plaintiffs discriminatory transfer claim is a discrete act, not connected to actionable conduct that occurred during the limitations period, and is therefore time barred.
In July 2009, Campbell was transferred from Manhattan, Zone 9 to Queens.
Plaintiff emailed McDonald in June 2009, complaining generally that his transfer to and from Manhattan, Zone 9 was “rigged,”
C. Hostile Work Environment
In March 2008, it was discovered that employees in one of plaintiffs stores
Plaintiff alleges, without any factual support, that Devlin adjusted his sales quota, making it impossible for him to succeed, and transferred him to Manhattan during the economic downturn to ensure that he would fail. In addition to Verizon’s evidence showing that Devlin had no influence over the quotas,
Plaintiff claims that Zone 9 was understaffed as part of the plot to have his management of this region fail, but defendant provides evidence that, in light of the economic climate, almost all Zones were understaffed.
Plaintiff has not raised a triable issue of fact as to whether he was “treated less well than other employees because of [his race].”
D. Discriminatory Discharge
Finally, plaintiff claims that he was unfairly placed on PIPs that were not appropriately administered and that this led to
1. Verizon’s Business Justifications
Verizon has provided legitimate business justifications for its decisions to place Campbell on the NPS PIP, the 30-day Overall PIP, and the Final PIP, and to terminate his employment. To satisfy its burden, “the defendant must simply present clear and specific non-discriminatory reasons for its actions.”
The primary mechanism for evaluating a DM’s performance was the score card.
2. Evidence of Pretext
Pretext can be shown “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”
Plaintiff counters defendant’s reason with evidence that he received bonuses for his performance under the MBO rubric, which could cast doubt over defendant’s explanation. However, defendant offered evidence that the MBO metric compares plaintiff only to his own prior performance, making it possible to receive MBO bonus
Additionally, “plaintiff offers no evidence of a causal connection to race, and [his] conclusory statements are not enough to overcome the defendant’s non-diseriminatory explanation”
The record provides no evidence that African-American employees were treated differently than others.
Plaintiff states that other DM’s ranked lower than he did in any given month, but defendant provides evidence that Campbell’s DM score card ranking was tenth or lower for eleven months in 2009, more often than any other DM in the same region.
V. CONCLUSION
For the foregoing reasons, defendant’s motion for partial summary judgment is granted. The Clerk of the Court is directed to close this motion [docket #33]. A conference is scheduled for February 15 at 4:00 pm in Courtroom 15C.
SO ORDERED.
. The action was initially filed against Verizon and Patrick Devlin as an individual, but on December 30, 2010, the parties stipulated to the voluntary dismissal of Devlin pursuant to Fed, R. Civ. P. 41(a)(1)(H).
. NY. Exec. Law § 296 et seq.
. N.Y.C. Admin. Code § 8-107(l)(a).
. See Amended Complaint ("Am. Compl.”) ¶1.
. See id. ¶ 2.
. The following facts are derived from the Amended Complaint and from the parties’ Rule 56.1 statements and supporting documents. The facts are undisputed unless otherwise noted; where disputed, they are construed in the light most favorable to the plaintiff. See, e.g., Federal Ins. Co. v. American Home Assurance Co., 639 F.3d 557, 566 (2d Cir.2011).
. See Am. Compl. ¶ 10.
. Campbell’s Answer to Defendant's Rule 56.1 Statement of Material Facts ("PI. 56.1”) ¶ 7.
. Id. ¶ 14.
. Verizon’s Rule 56.1 Statement of Undisputed Facts ("Def. 56.1”) ¶ 7.
. Id. ¶ 19.
. 4/28/06 Email from Annette Lowther (an HR employee) to Campbell (4:47 PM), Ex. 2 to Declaration of Lisa E. Dayan, defendant’s counsel, in Support of Motion for Partial Summary Judgment ("Dayan Dec!.”).
. See Def. 56.1 ¶ 16. The position of Manhattan DM was given to Frank Campbell, a Caucasian unrelated to plaintiff. See PI. 56.1 ¶ 15.
. See Def. 56.1 ¶ 18.
. See id. ¶ 22.
. See id. ¶ 23. Plaintiff alleges that McCarthy was an employee used by defendant to "take care of any messy situation” including taking "action to squelch [] union activity.” Am. Compl. ¶¶ 34-35.
. See Def. 56.1 ¶ 24.
. See id. ¶ 25.
. See id. ¶ 30. NPS are customer satisfaction surveys. Plaintiff's staff allegedly "fill[ed] out [the] customer surveys themselves.” Id.
. PL 56.1 ¶ 30. While plaintiff pleads a hostile work environment claim, this is the only instance of any such hostility evident in the record.
. Def. 56.1 ¶ 32.
. See id. ¶ 35.
. Id. ¶ 59.
. Id. 11 69.
. Id. II 72.
. id. ¶ 70.
. See id. ¶ 72.
. See id. ¶ 73.
. See id. ¶ 77.
. See id. ¶ 64.
. Id.
. Id. ¶ 78.
. PL 56.1 ¶ 78.
. See 9/18/09 Email from Scribner to McDonald (10:33 AM), Ex. 12 to Declaration of Lisa E. Dayan, defendant's counsel, in Support of Motion for Summary Judgment ("Dayan Decl.”).
. Def. 56.1 ¶ 82.
. 9/29/09 Email from Percent to Eileen Lambert (an HR employee) (5:25 PM), Ex. 12 to Dayan Decl.
. See Def. 56.1 ¶ 88.
. See id. ¶ 93.
. See Letter from Scribner to Campbell, Ex. 9 to Dayan Decl.
. See Def. 56.1 ¶ 95.
. See id. ¶ 96.
. See id.
. See id. ¶¶ 100-103.
. See Deposition of Michael Scribner ("Scribner Dep.”) at 82:8-9.
. See Def. 56.1 ¶ 107.
. See id. Í 09.
. Id. ¶ 110.
. See id. ¶ 112.
. See PL 56.1 ¶ 112.
. See Def. 56.1 ¶ 115.
. Id. ¶ 118.
. Id. ¶¶ 119-120.
. See Defendant’s Reply in Further Support of Motion for Partial Summary Judgment ("Def. Reply”) at 10.
. 12/06/11 Affidavit of John McCarthy, Verizon Director of Retail Sales for the New York Metro Area, in Support of Defendant’s Motion for Summary Judgment ("McCarthy Aff.”) ¶ 29.
. Id. ¶ 30.
. See Def. 56.1 ¶ 121.
. See 4/21/10 Letter from McCarthy to Campbell, Ex. 15 to Dayan Deck
. See Def. 56.1 ¶¶ 124-125.
. PL 56.1 ¶ 133.
. See id. ¶ 14.
. Am. Compl. ¶ 29.
. PL 56.1 ¶ 15.
. Id.
. Id. ¶ 127.
. Id. ¶ 27.
. See id.
. Id. ¶ 62.
. Id. ¶67
. Id. ¶ 69.
. Am. Comp. ¶ 47.
. See Pl. 56.1 ¶ 74.
. See id. ¶ 77.
. Id. ¶ 72
. See id. ¶ 91.
. Id. ¶ 89, 93.
. See id. ¶ 96.
. Id. ¶ 109.
. Id. ¶ 123.
. Id. ¶ 124.
. See id. ¶ 119.
. See id. ¶¶ 121.
. See Deposition of Tony Campbell ("PL Dep.”) at 396:19-23.
. See McCarthy Aff. ¶ 6.
. 4/28/06 Email from Lowther to Campbell (4:47 PM), Ex. 2 to Dayan Decl.
. See Scribner Dep. at 8:3 (stating that he has been employed by Verizon for "[tjhirteen and a half years.”).
. Deposition of Patrick Devlin ("Devlin Dep.”) at 101:25.
. See McCarthy Aff. ¶ 5.
. See id. ¶ 6.
. See id. ¶¶ 8-9.
. See id. ¶¶ 10-11.
. Id. ¶ 5.
. Def. 56.1 ¶ 67.
. See Devlin Dep. at 251:22-24.
. See 9/20/11 Affidavit of Betty Simon, Verizon Associate Director of Operations in the Northeast Area, in Support of Defendant’s Motion for Summary Judgment ("Simon Aff.”) ¶ 16; 9/21/11 Affidavit of Russell Herman, Verizon District Manager in the New York Metro Area, in Support of Defendant’s
. See 10/18/11 Affidavit of Peter Deane, Verizon Manager of Sales Operations for the New York Metro Region, in Support of Defendant’s Motion for Summary Judgment ("Deane Aff.”) ¶ 19.
. Devlin Dep. at 248:15-16.
. See Scribner Dep. at 6:22.
. See Def. 56.1 ¶ 99.
. Id. ¶ 86.
. Id. ¶ 117.
. See id. ¶ 115.
. See id. ¶ 113.
. Fed.R.Civ.P. 56(a).
. Sanchez v. Connecticut Natural Gas Co., 421 Fed.Appx. 33, 34 (2d Cir.2011) (quoting Nabisco, Inc. v. Warner-Lambert Co., 220 F.3d 43, 45 (2d Cir.2000)).
. Carter v. Incorporated Village of Ocean Beach, 415 Fed.Appx. 290, 292 (2d Cir.2011) (quoting McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir.2007)).
. Mavrommatis v. Carey Limousine Westchester, Inc., No. 10 Civ. 3404, 2011 WL 3903429, at *1 (2d Cir. Sept. 7, 2011) (citing Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir.1994)).
. Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir.2009).
. Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir.2011) (quoting Matsushita Elec.
. Id. (quoting Federal Deposit Ins. Corp. v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir.2010)).
. Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011) (quoting Williams v. R.H. Donnelley Corp., 368 F.3d 123, 126 (2d Cir.2004)).
. Kaytor v. Electric Boat Corp., 609 F.3d 537, 545 (2d Cir.2010) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)) (emphasis removed).
. Brod, 653 F.3d at 164 (quoting Wilson v. Northwestern Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir.2010)).
. Hongyan Lu v. Chase Inv. Servs. Corp., 412 Fed.Appx. 413, 415 (2d Cir.2011) (quoting Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000)). Accord Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.2001).
. Gear v. Department of Educ., No. 07 Civ. 11102, 2011 WL 1362093, at *2 (S.D.N.Y. Mar. 30, 2011) (quoting Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997)).
. See id.
. Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir.1999). Accord Cameron v. Community Aid for Retarded Children, Inc., 335 F.3d 60, 63 (2d Cir.2003) (" '[P]urely conelusory allegations of discrimination, absent any concrete particulars,' are insufficient” to satisfy an employee's burden on a motion for summary judgment) (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985) (alteration in original)). Accord Jenkins v. New York State Banking Dep’t, Nos. 07 Civ. 6322, 07 Civ. 11317, 2010 WL 2382417 (S.D.N.Y. Sept. 30, 2010).
. Ballard v. Children’s Aid Soc’y, 781 F.Supp.2d 198, 211 (S.D.N.Y.2011) (quoting Deshpande v. Medisys Health Network, Inc., No. 07 Civ. 375, 2010 WL 1539745, at *22 (E.D.N.Y. Apr. 16, 2010)) (quotation marks omitted). Accord Julius v. Department of Hu
. N.Y.C. Admin. Code § 8-107(l)(a).
. N.Y.C. Local Law No. 85 (2005).
. Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir.2009). Accord Buckman v. Calyon Sec. (USA) Inc., 817 F.Supp.2d 322, 333-34 (S.D.N.Y. 2011).
. Loeffler, 582 F.3d at 278 (quoting Williams v. New York City Hous. Auth., 61 A.D.3d 62, 872 N.Y.S.2d 27, 31 (1st Dep't 2009)).
. Id.
. Id. (emphasis removed). Because of this, if plaintiff's claims fail under the NYCHRL they necessarily fail under the NYSHRL.
. Williams, 872 N.Y.S.2d at 31.
. See 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
. Williams, 872 N.Y.S.2d at 31 (quoting the Restoration Act, N.Y.C. Local Law No. 85).
. Id. at 39.
. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817.
. See, e.g., Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir.2005).
. See Ruiz v. County of Rockland, 609 F.3d 486, 492 (2d Cir.2010).
. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
. See Patterson v. County of Oneida, New York, 375 F.3d 206, 221 (2d Cir.2004). See also Beachum v. AWISCO New York, 785 F.Supp.2d 84, 93-94 (S.D.N.Y.2011).
. Yarde v. Good Samaritan Hosp., 360 F.Supp.2d 552, 561 (S.D.N.Y.2005).
. See Weinstock, 224 F.3d at 42. See also Mavrommatis, 2011 WL 3903429, at *2; Ochei v. Coler/Goldwater Mem’l Hosp., 450 F.Supp.2d 275, 283 (S.D.N.Y.2006).
. Lizardo v. Denny’s, Inc., 270 F.3d 94, 104 (2d Cir.2001).
. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Accord Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 134, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
. See Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 110 (2d Cir.2001) (stating that summary judgment for defendant was improper where the defendant's stated reasons for its actions lacked credibility due to inconsistencies).
. Tomassi v. Insignia Fin. Grp., 478 F.3d 111, 114 (2d Cir.2007).
. N.Y. C.P.L.R. § 214(2) (McKinney 2003) (NYSHRL claims); N.Y.C. Admin. Code § 8-502(d) (NYCHRL claims).
. See Williams, 872 N.Y.S.2d at 35; Bermudez v. City of New York, 783 F.Supp.2d 560, 574 (S.D.N.Y.2011); Drew v. Plaza Constr. Corp., 688 F.Supp.2d 270, 278-79 (S.D.N.Y.2010).
. Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir.2001) (quoting Gomes v. Avco Corp., 964 F.2d 1330, 1333 (2d Cir.1992) (alteration in original)).
. 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).
. Id.
. See id.
. 872 N.Y.S.2d at 35.
. Id. at 41.
. Campbell v. Alliance Nat’l, Inc., 107 F.Supp.2d 234, 242 (S.D.N.Y.2000) (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 (2d Cir.2000)).
. Fleming v. MaxMara USA, Inc., 644 F.Supp.2d 247, 262 (E.D.N.Y.2009) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)).
. See 872 N.Y.S.2d at 38.
. Id. at 40 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (discussing Title VII)).
. Id. at 41.
. Id. at 39.
. Selmanovic v. NYSE Group, Inc., No. 06 Civ. 3046, 2007 WL 4563431, at *4 (S.D.N.Y. Dec. 21, 2007) (quoting Farrugia v. North Shore Univ. Hosp., 13 Misc.3d 740, 820 N.Y.S.2d 718, 725 (Sup.Ct.N.Y.Co.2006)).
. Lex Larson, Employment Discrimination § 8.08[4], The original McDonnell Douglas test required a plaintiff in a failure to hire case to show: "(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.” 411 U.S. at 802, 93 S.Ct. 1817.
. See, e.g., Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1282 (7th Cir.1977).
. Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.1994).
. See Ruiz, 609 F.3d at 491-92.
. Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir.2009) (quoting Chambers, 43 F.3d at 37).
. Fleming, 644 F.Supp.2d at 268.
. See Bennett v. Health Mgmt. Sys., Inc,, 92 A.D.3d 29, 39-41, 936 N.Y.S.2d 112 (1st Dep’t 2011) ("Where a defendant in a discrimination case has moved for summary judgment and has offered evidence in admissible form of one or more nondiscriminatory motivations for its actions, a court should ordinarily avoid the unnecessary and sometimes confusing effort of going back to the question of whether a prima facie case has been made out in the first place.”).
. See PI. 56.1 HIT 15, 26.
. See id. ¶ 15.
. SeeDef. 56.1 ¶ 16.
. See id. ¶ 15.
. 536 U.S. at 114, 122 S.Ct. 2061.
. See Williams, 872 N.Y.S.2d at 35.
. Horsford v. Salvation Army, No. 99 Civ. 5721, 2001 WL 1335005, at *5 (S.D.N.Y. Oct. 29, 2001) (citing McCulley v. Southern Conn. Newspapers, Inc., 98 F.Supp.2d 216, 223 (D.Conn.2000)).
. See Devlin Dep. 108:13-18.
. Bielinski v. Hotel Pierre, 591 F.Supp.2d 541, 551 (S.D.N.Y.2008).
. Tucker v. New York City, 376 Fed.Appx. 100, 102 (2d Cir.2010) (quoting Bynie, 243 F.3d at 104.).
. Plaintiff’s Opposition to Defendant's Motion for Summary Judgment at 4.
. See id.
. See McCarthy Aff. ¶¶ 6, 9, 11.
. Fraser v. Fiduciary Trust Co. Int’l, No. 04 Civ. 6958, 2009 WL 2601389, at *8 (S.D.N.Y. Aug. 25, 2009).
. SeeDef. 56.1 ¶72.
. See id. ¶ 69.
. See McCarthy Aff. ¶ 29.
. Am. Compl. ¶ 19.
. 6/23/09 Email from Campbell to McDonald (2:16 PM), Ex. 8 to PL 56.1.
. PL 56.1 ¶ 72.
. SeeDef. 56.1 ¶ 30.
. PL Dep. at 44:5-6.
. Id. at 45:14-18.
. See id. at 46:4-47:4.
. See Simon Aff. ¶ 16; Herman Aff. ¶ 16; Scribner Dep. 158:10-19.
. See Scribner Dep. 109:13.
. See, e.g., Woods v. Enlarged City School Dist. of Newburgh, 473 F.Supp.2d 498, 520-21 (S.D.N.Y.2007) (granting defendant summary judgment on hostile work environment claims because “[o]f the approximately two hundred specific incidents of alleged harassment, only one has racial overtones whatsoever” and that was "clearly insufficient, standing alone, to sustain a hostile work[] environment claim”).
. See Deane Aff. ¶¶ 22, 25, 27, 30, 33, 36 (showing the number of employees reporting to each DM in the New York Metro region, January-June 2009).
. See id. Plaintiff's Zone was understaffed four out of six months from January to June 2009, whereas the Zone managed by Angelo Demonte (Caucasian) was understaffed all six months; the Zone managed by Chris Syed (Asian) was understaffed five out of the six months; and Brian Weatherly (African-American) was understaffed all six months.
. Williams, 872 N.Y.S.2d at 39.
. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978)).
. Bennett, 936 N.Y.S.2d at 119-20 (quoting Aikens, 460 U.S. at 715, 103 S.Ct. 1478).
. See Parrilla v. City of New York, No. 09 Civ. 8314, 2011 WL 611849, at *11 (S.D.N.Y. Feb. 16, 2011).
. Bernard v. J.P. Morgan Chase Bank, N.A., No. 08 Civ. 4784, 2010 WL 423102, at *6 (S.D.N.Y. Feb. 5, 2010).
. See Def. 56.1 ¶ 187, 89.
. See id. ¶ 90.
. Devlin Dep. at 243:18-19.
. Def. 56.1 ¶ 91.
. See McCarthy Aff. ¶ 29.
. See Def. 56.1 ¶ 69.
. See id. ¶ 125.
. Burdine, 450 U.S. at 256, 101 S.Ct. 1089.
. See Def. Reply at 9 (citing McCarthy Aff., ¶ 6).
. Jenkins, 2010 WL 2382417, at *8.
. See Simon Aff. ¶ 16; Herman Aff. ¶ 16
. See Ochei, 450 F.Supp.2d at 284 (where plaintiff did not allege differential treatment of black nurses, the court held "the conclusory allegations set forth in the complaint of race discrimination are insufficient to support a finding of race discrimination”).
. See Def. 56.1 ¶ 105. Because Simon's PIP was not signed, plaintiff argues that there is no proof that the PIP was actually implemented, but plaintiff was placed on three separate PIPS, none of which he signed. See Exs. 9, 14, 11 to Dayan Decl.
. See Def. Reply at 7.
. Woods, 473 F.Supp.2d at 525-26.