Delorme v. New York Automotive & Diesel Institute

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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RONALD DELORME,

Plaintiff,

MEMORANDUM AND ORDER

-against-

17-CV-6909(KAM)(ST)

NEW YORK AUTOMOTIVE AND DIESEL

INSTITUTE and YESID CABALLERO,

individually and as an aider and

abettor,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

On November 27, 2017, Ronald Delorme (“plaintiff” or

“Mr. Delorme”) commenced this action, bringing claims of

discrimination based on his race and national origin, and

alleging unlawful retaliation, pursuant to Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. (“Title

VII”); the New York State Human Rights Law, N.Y. Exec. Law §§

290 et seq. (“NYSHRL”); and the New York City Human Rights Law

(“NYCHRL”), New York City Administrative Code § 8-107, et seq.,

as amended. Plaintiff alleges racial and/or national origin

discrimination and retaliation by defendants New York Automotive

and Diesel Institute (“NYADI”) and NYADI’s Director of Student

Services, Yesid Caballero (together, “defendants”).

Presently before the Court is defendants’ motion for

summary judgment. (ECF No. 42, Motion for Summary Judgment; see

ECF No. 44, Defendants’ Memorandum of Law in Support; ECF No.

47, Defendants’ Reply Memorandum of Law.) Plaintiff opposes the

motion. (See ECF No. 46, Plaintiff’s Memorandum of Law in

Opposition (“Pl. Opp.”).) For the reasons provided below, the

Court GRANTS defendants’ motion for summary judgment in its

entirety.

BACKGROUND

The following timeline of events is taken from the

parties’ filings pursuant to Local Civil Rule 56.1.1 (See ECF

No. 43, Defendant’s Rule 56.1 Statement of Undisputed Material

Facts (“Def.’s 56.1 Stm’t”); ECF No. 46-1, Plaintiff’s

Objections to Defendant’s Rule 56.1 Statement (“Pl. 56.1

Stm’t”).) The Court has considered whether the parties have

proffered admissible evidence in support of their purported

undisputed or disputed facts, and has viewed the facts in a

light most favorable to plaintiff.

1 Local Civil Rule 56.1 provides that a party moving for summary judgment

“shall annex[] to the notice of motion a separate, short and concise

statement . . . of the material facts to which the moving party contends

there is no genuine issue to be tried.” L. Civ. R. 56.1(a). The party

opposing the motion must “include a correspondingly numbered paragraph

responding to each numbered paragraph in the statement of the moving party”

with the opposition. Local Civ. R. 56.1(b). Each of these paragraphs must

cite to admissible evidence. L. Civ. R. 56.1(c). Facts supported by

admissible evidence that were not contradicted by citations to admissible

evidence are deemed admitted. See Ferraro v. New York City Dep’t of Educ.,

404 F. Supp. 3d 691, 698 (E.D.N.Y. 2017), aff’d, 752 F. App’x 70 (2d Cir.

2018).

A. The Parties

Mr. Delorme was born in Haiti and identifies as black.

(Def.’s 56.1 Stm’t ¶ 2.) Defendant NYADI is an automotive

career school, located in Jamaica, New York, licensed by the New

York State Department of Education, nationally accredited by the

Accrediting Commission of Career Schools and Colleges, and

certified by the National Automotive Technician Education

Foundation. (Id. ¶ 3.) Defendant Yesid Caballero commenced

employment with NYADI on March 25, 2015, as Director of Student

Services/Training and Development. (Id. ¶ 4.) As Director of

Student Services/Training and Development, Mr. Caballero’s

responsibilities included overseeing students, pedagogical

training, and classroom observations. (Id. ¶ 5.)

B. Plaintiff’s Employment with NYADI

In total, plaintiff was employed by NYADI for

approximately twelve years, over two time periods: first, for

approximately four years from 2003 to 2007, and then again for

approximately eight years from August 21, 2008 until his

termination on September 6, 2016. (Id. ¶ 1.) In 2003,

plaintiff was hired as an instructor at NYADI. (Id. ¶ 6.) In

2007, plaintiff voluntarily resigned his instructor position and

was rehired in August 2008. (Id. ¶ 7.) At all relevant times,

plaintiff was employed as an automotive instructor by NYADI, and

his duties included teaching courses in advanced

electronics/electrical. (Id. ¶ 8.)

NYADI required all instructors to obtain Automotive

Service Excellence (“ASE”) certifications. (Id. ¶ 9.) As of

November 25, 2014, Mr. Delorme had taken twenty-three ASE exams,

four of which he passed. (Id. ¶ 11.) Of the remaining exams,

Mr. Delorme either failed or did not appear for the exam. (Id.

¶ 12.) Over the duration of his employment at NYADI, plaintiff

obtained three ASE certifications. (Id. ¶ 16.)

C. May 28, 2015 Instructor Training

On May 28, 2015,2 plaintiff, along with other

instructors, attended a weekly presentation by Mr. Caballero

entitled “Teaching Diverse Student Populations.” (Id. ¶ 17; Ex.

D, Aff. of Patrick Hart, dated June 28, 2019 (“Hart Aff.”), at

Ex. 1, “Instructor Training Sign-In Sheet,”; see also Ex. E,

Caballero Dep. Tr., at 27:13-27:20; Ex. F, Aff. of Edward Boyle,

dated July 15, 2019 (“Boyle Aff.”), ¶ 5; Ex. G, Aff. of Peter

2 Plaintiff asserts that the date of the training was May 28, 2016, one

year later than the date reported on the sign-in sheet. (Pl. 56.1 Stm’t ¶

17.) However, in an opposition to summary judgment, the nonmoving party may

not rely on unsupported recollections, assertions, conjecture, or surmise.

Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995).

The non-moving party must do more than show that there is “‘some metaphysical

doubt as to the material facts,’” McClellan v. Smith, 439 F.3d 137, 144 (2d

Cir.2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586 (1986)), “[he] must set forth significant, probative evidence

on which a reasonable fact-finder could decide in [his] favor,” Senno v.

Elmsford Union Free Sch. Dist., 812 F. Supp. 2d 454, 468 (S.D.N.Y.

2011)(citing Anderson v. Liberty Lobby, 477 U.S. 242, 256–57 (1986)).

Plaintiff’s own recollection of the date of the meeting does not, in light of

the sign-in sheet proffered by defendants as evidence (see Ex. D), constitute

sufficient probative evidence to create a dispute of material fact.

Licostie, dated July 15, 2019 (“Liscostie Aff.”), ¶ 4; Ex. J,

Aff. of Balwant Basdeo, dated July 15, 2019, ¶ 3).) During the

presentation, Mr. Caballero distributed handouts containing

information about classroom management, student engagement in

the classroom, and theories about how students learn. (Def.’s

56.1 Stm’t ¶ 18.) The handouts Mr. Caballero distributed did

not reference grouping students by race. (Id. ¶¶ 18-20.)

However, Mr. Caballero admitted to orally expressing his views

of the supposed benefits of grouping students by race to “learn

better or faster,” including, for example, stating that “Latin

and Asian students tend to learn well when they’re grouped

. . .; White students tend to learn better, typically, when they

work alone . . .; African American students tend to learn better

when the information is written on the board, not only

verbalized.” (Pl. 56.1 Stm’t ¶ 19.)

Plaintiff states that he made multiple complaints

about the comments Mr. Caballero made during the training, which

were ignored by his superiors, but there is no written record of

plaintiff’s complaints. (Id. ¶ 21.)

D. Plaintiff’s May 2015 Application for a Supervisor

Position

In May 2015, NYADI posted a notice about a job opening

for an Automotive Program Supervisor position. (Def.’s 56.1

Stm’t ¶ 22.) The posting indicated that applicants must possess

“[a] minimum of 5 years of automotive industry/supervisory

experience including a working knowledge in automotive

electrical electronics, HVAC systems, brakes, steering and

suspension.” (Id.) At the time of the May 2015 job posting,

Mr. Delorme did not have the requisite five years of automotive

supervisory experience. (Id. ¶ 23.) On May 18, 2015, plaintiff

submitted an application for the automotive supervisor position,

along with a copy of his résumé, to Patrick Hart, the president

of NYADI. (Id. ¶ 24.) According to plaintiff’s application, he

did not have any supervisory experience, and had only two years

of relevant automotive industry experience prior to working at

NYADI. (Id. ¶ 26.) NYADI interviewed plaintiff twice in

consideration for the promotion. (Id. ¶ 27.) Specifically,

plaintiff interviewed with Mr. Hart, Mr. Caballero, and Robert

Lagnese (the vice president of NYADI). (Id. ¶ 28.) Ultimately,

NYADI hired another applicant for the position, Scott Rose.

(Id. ¶ 29.) Mr. Rose had over thirty years of industry and

management experience and held ASE certifications in fourteen

different subject areas, including a master ASE certification as

an automobile technician. (Id. ¶¶ 31, 32.) At the time of his

application, plaintiff had three current ASE certifications, had

passed four other ASE exams, and did not hold master ASE

certifications in any area. (Id. ¶¶ 33-36.)

E. September 1, 2016 Altercation Between Plaintiff and

Mr. Basdeo, Resulting in Plaintiff’s Termination on

September 6, 2016

Plaintiff’s employment with NYADI was terminated on

September 6, 2016, after an investigation by NYADI revealed that

plaintiff physically assaulted Balwant Basdeo, a fellow NYADI

instructor. (Id. ¶¶ 38-39.) The investigation was conducted by

Mr. Hart, the president of NYADI, sometime between September 1

and September 6, 2016. (Pl. 56.1 Stm’t ¶ 39.) Plaintiff was

not interviewed as part of the investigation. (Id.) Mr. Hart

interviewed and collected statements from four eyewitnesses to

the incident: Edward Boyle, Peter Licostie, Farook Khan, and

Patrick O’Reilly. (Ex. D, Hart Aff., ¶ 38.)

According to the results of the investigation, on

September 1, 2016, plaintiff initiated a verbal and physical

altercation with Mr. Basdeo on the premises of NYADI. (Def.’s

56.1 Stm’t ¶ 40.) The verbal altercation was apparently in

response to racially offensive comments Mr. Basdeo allegedly

made to students earlier in the day. (Id. ¶ 41.) Plaintiff

admitted that he put out his foot to stop Mr. Basdeo from

leaving the conversation. (Id.)

Mr. Boyle, a witness to the incident, submitted an

affidavit in this case and completed a contemporaneous incident

report stating that he “saw Mr. Delorme approach Mr. Basdeo in a

violent and threatening manner,” and that “Mr. Basdeo informed

[him] that Mr. Delorme had assaulted him.” (Ex. F, Boyle Aff.,

¶¶ 10-17; “Incident Report” annexed to Boyle Aff. as Ex. 1.)

Another witness, Mr. Licostie, also submitted an affidavit and

completed an incident report stating that he “heard Mr. Delorme

yelling at [Mr.] Basdeo,” and that he “then saw Mr. Delorme grab

Mr. Basdeo around the neck and turn him around.” (Ex. G,

Liscostie Aff., ¶¶ 7-11; “Incident Report” annexed to Licostie

Aff. as Ex. 1.) According to Mr. Licostie, “Mr. Delorme then

punched Mr. Basdeo in the face.” (Id.) Mr. Khan submitted an

affidavit and made a contemporaneous statement documenting that,

“[w]ithout warning, Mr. Delorme approached Mr. Basdeo and

grabbed him while trying to wrestle Mr. Basdeo away from where

we were speaking.” (Ex. H, Affidavit of Farook Khan, dated July

15, 2019 (“Khan Aff.”), ¶¶ 3-6; “Khan Statement” annexed to Khan

Aff. as Ex. 1.) According to Mr. Khan, “Mr. Basdeo was able to

break free from Mr. Delorme’s grasp initially, but then Mr.

Delorme continued to wrestle and grab Mr. Basdeo a second time.”

(Id.) The final eyewitness, Mr. O’Reilly, submitted an

affidavit and made a statement indicating that, as he was

speaking with Mr. Khan and Mr. Basdeo, “Mr. Delorme . . .

approached Mr. Basdeo and without warning, grabbed Mr. Basdeo

and promptly put him in a headlock.” (Ex. I, Affidavit of

Patrick O’Reilly, dated July 15, 2019 (“O’Reilly Aff.”), ¶¶ 3-7;

“O’Reilly Statement” annexed to O’Reilly Aff. as Ex. 1.)

According to Mr. O’Reilly, “Mr. Delorme dragged Mr. Basdeo away

from Mr. Khan’s vehicle and punched Mr. Basdeo in the face,” and

that “[p]rior to this, Mr. Basdeo was talking to Mr. Khan and

myself and had not addressed Mr. Delorme.” (Id.)

At the time of the incident, NYADI had a Personnel and

Benefits Handbook which contained a code of conduct for

employees, as well as the possible consequences for violating

that code. (Def.’s 56.1 Stm’t ¶ 44.) Plaintiff confirmed he

was aware of NYADI’s employment policy, including the possible

consequences for violating it. (Id. ¶ 45.) NYADI’s employment

policy forbade fighting, threatening another person, or verbally

abusing others with obscene or foul language. (Id.) Plaintiff

testified that he understood that the consequences of violating

NYADI’s policy could include termination. (Id. ¶ 46.)

Plaintiff’s employment with NYADI was terminated on

September 6, 2016. (Id. ¶ 38.)

F. Instructors Hired by NYADI Allegedly to Replace

Plaintiff After his Termination

Plaintiff claims, without evidentiary support, that

after his termination, NYADI hired two instructors, John Moore

and Radames Sanchez, to replace him. (Id. ¶ 49.) Mr. Sanchez

and Mr. Moore were both hired before plaintiff was terminated.

(Id. ¶ 50.) Defendants have proffered evidence that Mr. Sanchez

and Mr. Moore were hired to teach different courses than

plaintiff. (Id. ¶ 51.) Specifically, NYADI hired Mr. Sanchez

to teach courses in chassis and/or brake systems, and Mr. Moore

to teach transmissions. (Id.) Neither Mr. Sanchez nor Mr.

Moore were hired to teach plaintiff’s courses in advanced

electronics/electric, and plaintiff did not teach courses in

transmissions, chassis, and/or brake systems. (Id. ¶ 52.)

G. Plaintiff’s Instant Federal Discrimination Complaint

On December 19, 2016, plaintiff filed an initial

administrative complaint with the Equal Employment Opportunity

Commission (“EEOC”) alleging, inter alia, that defendants

treated him differently based on his race. (Id. ¶ 55.) On

August 29, 2017, the EEOC issued a Notice of Right to Sue. (Id.

¶ 56.)

Plaintiff commenced this action on November 27, 2017,

asserting claims of discrimination based on race and national

origin, and retaliation, pursuant to Title VII, the New York

State Human Rights Law, and the New York City Human Rights Law.

Plaintiff alleges, inter alia, that defendants discriminated

against him on the basis of his race and national origin by

denying his application for a promotion and by terminating him,

and retaliated against him by terminating his employment because

he complained about the statements Mr. Caballero made during the

May 2015 training.

By stipulation filed July 12, 2019, plaintiff

voluntarily dismissed his failure to promote claim brought

pursuant to Title VII as untimely,3 the dismissal of which the

Court “so-ordered” on July 17, 2019. (ECF No. 31., so ordered

on 7/12/2019.)

LEGAL STANDARD

Summary judgment shall be granted to a movant who

demonstrates “that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ for

these purposes when it ‘might affect the outcome of the suit

under the governing law.’” Rojas v. Roman Catholic Diocese of

Rochester, 660 F.3d 98, 104 (2d Cir. 2011) (quoting Anderson,

477 U.S. at 248). No genuine issue of material fact exists

“unless there is sufficient evidence favoring the nonmoving

party for a jury to return a verdict for that party. If the

evidence is merely colorable, or is not significantly probative,

summary judgment may be granted.” Anderson, 477 U.S. at 249-50

(citations omitted).

When bringing a motion for summary judgment, the

movant carries the burden of demonstrating the absence of any

disputed issues of material fact and entitlement to judgment as

3 The Court therefore evaluates plaintiff’s claims stemming from the

failure to promote as pleaded pursuant to the NYSHRL and the NYCHRL only.

a matter of law. Rojas, 660 F.3d at 104. In deciding a summary

judgment motion, the court must resolve all ambiguities and draw

all reasonable inferences against the moving party. Flanigan v.

Gen. Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001) (citing

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986)). A moving party may indicate the absence of a

factual dispute by “showing . . . that an adverse party cannot

produce admissible evidence to support the fact.” Fed. R. Civ.

P. 56(c)(1)(B). Put another way, “[w]here the record taken as a

whole could not lead a rational trier of fact to find for the

non-moving party, there is no ‘genuine issue for trial.’”

Matsushita Elec. Ind. Co., 475 U.S. at 587.

Once the moving party has met its burden, “the

nonmoving party may not rest upon mere conclusory allegations or

denials.” Castro v. Cty. of Nassau, 739 F. Supp. 2d 153, 165

(E.D.N.Y. 2010) (citing R.G. Grp., Inc. v. Horn & Hardart Co.,

751 F.2d 69, 77 (2d Cir. 1984)). Rather, “the nonmoving party

must come forward with admissible evidence sufficient to raise a

genuine issue of fact for trial in order to avoid summary

judgment.” Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d

Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-

23 (1986)). In deciding a motion for summary judgment, the

court is dutybound not to weigh evidence or assess the

credibility of witnesses. United States v. Rem, 38 F.3d 634,

644 (2d Cir. 1994).

“Employment discrimination cases raise special issues

on summary judgment.” Kenney v. New York City Dep’t of Educ.,

No. 06-cv-5770, 2007 U.S. Dist. LEXIS 77926, at *7 (S.D.N.Y.

Oct. 22, 2007). Specifically, employment discrimination cases

that involve a dispute concerning the “employer’s intent and

motivation” may not be suitable for summary judgment. Id.; see

also Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008).

The Second Circuit has noted, however, that it “went out of

[its] way to remind district courts that the impression that

summary judgment is unavailable to defendants in discrimination

cases is unsupportable.” Weinstock v. Columbia Univ., 224 F.3d

33, 41 (2d Cir. 2000) (quotation omitted); see also Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000)

(“trial courts should not ‘treat discrimination

differently from other ultimate questions of fact’”) (quoting

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993));

Holcomb, 521 F.3d at 137 (“Even in the discrimination context,

however, a plaintiff must provide more than conclusory

allegations to resist a motion for summary judgment.”).

DISCUSSION

Plaintiff argues that NYADI’s failure to promote him

in 2015, and NYADI’s termination of him in 2016, were

discriminatory acts based on his race and national origin in

violation of federal, state, and local law. (See Pl. Opp. at 8-

16.) In addition, plaintiff argues that his termination was in

retaliation for the complaints he allegedly filed after Mr.

Caballero made discriminatory remarks at a training session.

(See id. at 16-19.)

I. Plaintiff’s Race and National Origin Discrimination

Claims Fail under Title VII and State Law

A. Legal Standard

Under the McDonnell Douglas framework established by

the Supreme Court, “a plaintiff must first establish a prima

facie case of discrimination by showing: (1) []he belonged to a

protected class, (2) was qualified for the position []he held or

sought, and (3) suffered an adverse employment action (4) under

circumstances giving rise to an inference of discriminatory

intent.” Fanelli v. New York, 200 F. Supp. 3d 363, 370

(E.D.N.Y. 2016) (citing Terry v. Ashcroft, 336 F.3d 128, 137-38

(2d Cir. 2003)). “This burden is minimal and does not require

specific evidence of discrimination.” Brown v. Baldwin Union

Free Sch. Dist., 603 F. Supp. 2d 509, 514 (E.D.N.Y. 2009)

(citing Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir. 2006)).

“A plaintiff sustains an adverse employment action if

he or she endures a materially adverse change in the terms and

conditions of employment.” Joseph, 465 F.3d at 90 (quotation

omitted). “Examples of materially adverse employment actions

include 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.” Feingold v. New York, 366 F.3d 138, 152 (2d Cir.

2004) (alternation and quotation omitted); see also Vega v.

Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015)

(“A plaintiff sustains an adverse employment action if he or she

endures a materially adverse change in the terms and conditions

of employment.”). An employer’s failure to promote an employee

can constitute an adverse action for purposes of a claim of

discrimination. See Anderson v. Nassau Cty. Dep’t of Corr., 558

F. Supp. 2d 283, 298 (E.D.N.Y. 2008).

The plaintiff “bears the initial burden of proving by

a preponderance of the evidence a prima facie case of

discrimination; it is then the defendant’s burden to proffer a

legitimate non-discriminatory reason for its actions; the final

and ultimate burden is on the plaintiff to establish that the

defendant’s reason is in fact pretext for unlawful

discrimination.” Moschetti v. N.Y.C. Dep’t of Educ., 778 F.

App’x 65, 65-66 (2d Cir. 2019). “The employer’s burden of

showing a legitimate non-discriminatory reason for its actions

is not a particularly steep hurdle.” Whethers v. Nassau Health

Care Corp., 956 F. Supp. 2d 364, 375 (E.D.N.Y. 2013) (citing

Leibowitz v. Cornell Univ., 584 F.3d 487, 499 (2d Cir. 2009)),

aff’d, 578 F. App’x 34 (2d Cir. 2014). “To rebut an employer’s

proffered non-discriminatory rationale for its actions and

withstand summary judgment, a plaintiff must present more than

allegations that are ‘conclusory and unsupported by evidence of

any weight.’” Id. (quoting Smith v. Am. Ex. Co., 853 F.2d 151,

154-55 (2d Cir. 1988)); see also Chan v. Donahoe, 63 F. Supp. 3d

271, 297 (E.D.N.Y. 2014) (“In order to successfully rebut an

employer’s purported non-discriminatory reason for the

employment action, the plaintiff must establish pretext.”).

“Thus, when the district court considers whether the evidence

can support a verdict of discrimination on a motion for summary

judgment, it must analyze the evidence, along with the

inferences that may be reasonably drawn from it, and decide if

it raises a jury question as to whether the plaintiff was the

victim of discrimination.” Grady v. Affiliated Cent., Inc., 130

F.3d 553, 560 (2d Cir. 1997) (quotation omitted).

“Claims brought under the NYSHRL are analyzed

identically and the outcome of an employment discrimination

claim made pursuant to the NYSHRL is the same as it is under

. . . Title VII.” Hyek v. Field Support Servs., Inc., 461 F.

App’x 59, 60 (2d Cir. 2012). Accordingly, the Court will

address plaintiff’s claims of discrimination under Title VII and

the NYSHRL together. The Court will separately discuss

plaintiff’s discrimination claims under the NYCHRL.

B. Application

Plaintiff satisfies the first prong of a prima facie

case pursuant to the McDonnell Douglas framework. As a black

Haitian man, plaintiff is a member protected classes. Plaintiff

alleges that he suffered two distinct adverse employment actions

as a result of discrimination: the May 2015 denial of the

promotion he applied for, and defendants’ termination of his

employment in 2016.

With respect to plaintiff’s NYSHRL claim for failure

to promote, NYADI’s denial of a promotion fails to meet the

second prong of the McDonnell Douglas framework, because he did

not meet the minimum qualifications for the position he sought.

Regarding his termination, plaintiff meets the second prong

because he was employed as an instructor with NYADI for twelve

years and had three current ASE certifications, demonstrating

his qualifications for his position. The termination claim,

however, fails the fourth prong of the McDonnell Douglas

framework, because plaintiff is unable to show circumstances

giving rise to an inference of discriminatory intent. Even if

he could make out a prima facie case, defendants have put forth

uncontradicted evidence that there was a non-discriminatory

reason for his termination—specifically, a physical altercation

at work—and plaintiff has offered no evidence suggesting that

the reason was pretext.

i. Failure to Promote

Plaintiff cannot make out a prima facie case under the

NYSHRL that NYADI’s decision to give Mr. Rose a position over

him in 2015 was a discriminatory act. To meet the second prong

of McDonnell Douglas, plaintiff must show that he was

objectively qualified for the position to which he sought a

promotion. See Barrow v. Ford Motor Co., No. 03-cv-621, 2007 WL

1655660, at *20 (W.D.N.Y. June 5, 2007). The posting for the

supervisory position plaintiff applied for indicated that

applicants must possess “[a] minimum of 5 years of automotive

industry/supervisory experience including a working knowledge in

automotive electrical electronics, HVAC systems, brakes,

steering and suspension.” (Def.’s 56.1 Stm’t ¶ 22.) Mr.

Delorme concedes that he did not have the requisite five years

of supervisory experience. (See Pl. 56.1 Stm’t ¶ 22.)

Moreover, plaintiff cites no evidence, circumstantial

or otherwise, that NYADI’s decision to select Mr. Rose was due

to plaintiff’s race or national origin. And defendants have

offered a straightforward, non-discriminatory reason that they

did so: Mr. Rose was more qualified. (See Def.’s 56.1 Stm’t ¶

30.) Plaintiff disputes whether Mr. Rose was actually more

qualified, but that factual dispute is not enough to preclude

summary judgment. Under the McDonnell Douglas framework, Mr.

Delorme must “establish that the defendant’s reason” for

promoting Mr. Rose over him “is in fact pretext for unlawful

discrimination.” Moschetti, 778 F. App’x at 65-66.

Plaintiff has failed to do so. Plaintiff’s argument

focuses on his own qualifications, and asserts that Mr. Rose’s

application, cover letter, and résumé did not necessarily

demonstrate his superior qualifications. (See Pl. Opp. at 15-

16.) Plaintiff’s attempt to create a factual dispute about

whether Mr. Rose was actually more qualified, however, is

irrelevant. The undisputed evidence before the Court

establishes that Mr. Rose had more supervisory experience and

more ASE certifications, and thus plaintiff cannot show that

NYADI’s stated reason for selecting him over plaintiff was

pretext for discrimination. See Kellman v. Metro. Transp.

Auth., 8 F. Supp. 3d 351, 375 (S.D.N.Y. 2014) (summary judgment

granted on failure to promote claim where “[t]he evidence

submitted shows that plaintiff indeed had less . . .

experience”).

There is thus no triable issue as to whether NYADI’s

decision to fill the position with Mr. Rose instead of plaintiff

violated the NYSHRL.4

ii. Termination

Plaintiff also fails to make out a prima facie case

that his termination was the result of discrimination, because

he has proffered no evidence that supports an inference of

discrimination. Plaintiff argues that such an inference can be

drawn because a similarly-situated employee, Mr. Basdeo, was not

terminated for his role in the altercation, or for his allegedly

discriminatory comments. (See Pl. Opp. at 9.) But the

uncontradicted evidence suggests that Mr. Delorme and Mr. Basdeo

were not similarly situated; all four eyewitnesses interviewed

by NYADI stated that Mr. Delorme was the aggressor in the

incident. (See Exs. F-I.) Plaintiff, at his deposition,

admitted that Mr. Basdeo tried to walk away from him after

plaintiff approached him. (Def.’s 56.1 Stm’t ¶ 41.)

If Mr. Basdeo in fact made offensive comments to

students, then perhaps NYADI should also have investigated him

and taken action against him, assuming NYADI was aware of the

comments. Whether or not NYADI did so, however, is not relevant

to whether the termination action taken against plaintiff was

4 Plaintiff previously dismissed his Title VII failure to promote claim.

discriminatory. When faced with a situation in which two

employees were involved in a physical altercation, NYADI

investigated the incident and decided to terminate the

aggressor. Merely because NYADI did not also terminate or take

adverse action against the non-aggressor does not raise a

triable inference of discrimination.

Furthermore, Mr. Basdeo was a fellow instructor, and

not plaintiff’s supervisor. Even if Mr. Basdeo made offensive

remarks to students earlier in the day, courts have held that

“verbal comments made by individuals not involved in making the

adverse employment decision cannot themselves give rise to an

inference of racial discrimination.” Anderson v. Hertz Corp.,

507 F. Supp. 2d 320, 328 (S.D.N.Y. 2007), aff’d, 303 F. App’x

946 (2d Cir. 2008); see also Yarde v. Good Samaritan Hosp., 360

F.Supp.2d 552, 560 (S.D.N.Y. 2005); Minton v. Lenox Hill Hosp.,

160 F.Supp.2d 687, 695 (S.D.N.Y.2001). If Mr. Basdeo made

offensive comments to students earlier in the day, and those

comments were the motivating factor behind plaintiff’s

aggression, the alleged comments, on their own, do not raise an

inference that plaintiff’s subsequent termination (in which Mr.

Basdeo was not involved) was discriminatory. Plaintiff must

“link the adverse employment action to a discriminatory

motivation,” or else his “claims fail.” Sotomayor v. City of

New York, 862 F. Supp. 2d 226, 258 (E.D.N.Y. 2012), aff’d 713

F.3d 163 (2d Cir. 2013).

Even assuming, arguendo, that plaintiff established a

prima facie case, defendants presented a legitimate non-

discriminatory reason for plaintiff’s termination: namely, the

physical altercation in which the employer found plaintiff to be

the aggressor against Mr. Basdeo. Plaintiff has not offered

evidence to demonstrate that defendants’ stated reason for his

dismissal was a pretext for discriminatory motives, and it

appears from the record that NYADI made the decision only after

investigating and interviewing four eyewitnesses. “An

employer’s good faith belief that an employee engaged in

misconduct is a legitimate reason for terminating [him].”

Droutman v. N.Y. Blood Ctr., Inc., No. 03–cv–5384, 2005 WL

1796120, at *9 (E.D.N.Y. July 27, 2005) (emphasis in original).

Defendants conducted an investigation and took

statements from at least four witnesses, each of whom reported

hearing or seeing a physical altercation between plaintiff and

Mr. Basdeo. The undisputed evidence demonstrates that

defendants had a good faith belief, based on their

investigation, that plaintiff initiated the physical altercation

with Mr. Basdeo. The altercation was in violation of NYADI’s

employee handbook, of which plaintiff was aware. Courts in this

circuit have held that violations of employer bans on fighting

constitute a legitimate non-discriminatory reason for

terminating an employee. See Stepheny v. Brooklyn Hebrew School

for Special Children, 356 F. Supp. 2d 248, 260 (E.D.N.Y. 2005)

(“Defendant has submitted indisputable evidence that it

terminated [plaintiff] because she participated in [a] fight in

the School’s parking lot . . . .”); Anderson, 507 F. Supp. 2d at

330 (“Plaintiff admitted that he participated in [a fight], and

even if his participation could be construed as self-defense,

there is no dispute that Plaintiff’s activities were of the sort

specifically proscribed by Defendant’s Rules and Regulations.”).

As plaintiff has failed to establish a prima facie

case of discrimination regarding his termination, and because

NYADI terminated plaintiff for the legitimate non-discriminatory

reason of engaging in a physical altercation with a co-worker,

defendants’ motion for summary judgment is granted on the claims

of discrimination under Title VII and the NYSHRL.

II. Plaintiff’s Race and National Origin Discrimination

Claims Fail under Local Law

A. Legal Standard

The NYCHRL makes it “unlawful for an employer or an

employee or agent thereof” to discharge an employee based on,

inter alia, the employee’s race or national origin. N.Y.C.

Admin. Code § 8–107(1)(a). It is also unlawful to discriminate

against such person in “terms, conditions or privileges of

employment.” Id. Under the NYCHRL, “an employer is strictly

liable for the unlawful harassment of employees by their

supervisors or managers, regardless of whether the harassment

culminates in a tangible employment action.” Dillon v. Ned

Mgmt., Inc., 85 F. Supp. 3d 639, 657, 658 (E.D.N.Y. 2015). To

sustain a discrimination claim under the NYCHRL, a plaintiff

need not establish a materially adverse employment action.

Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102,

114 (2d Cir. 2013).

Although the NYCHRL was formerly construed to be

coextensive with its federal and state counterparts, the law was

amended in 2005 and requires an independent analysis. Id. at

109. Courts must construe the NYCHRL’s provisions “broadly in

favor of discrimination plaintiffs, to the extent that such a

construction is reasonably possible[.]” Id. (citing Albunio v.

City of New York, 16 N.Y.3d 472, 477-78 (2011)).

B. Application

Even under the broader construction required by the

NYCHRL, plaintiff cannot make out failure to promote or

termination claims of discrimination based on his race or

national origin. “As with [plaintiff]’s federal and state

discrimination claims, []he has not shown that []he was treated

differently with respect to [his] termination because of any

race or [origin]-based discriminatory motives harbored by

individuals at [NYADI].” Mauze v. CBS Corp., 340 F. Supp. 3d

186, 209 (E.D.N.Y. 2018), adhered to on reconsideration, No. 15-

cv-4905, 2019 WL 8137641 (E.D.N.Y. Jan. 23, 2019).

As discussed above, defendants had legitimate, non-

discriminatory reasons both for choosing Mr. Rose (who was more

qualified) for a job instead of plaintiff, and for terminating

plaintiff (after he started a physical altercation with a co-

worker). Accordingly, plaintiff cannot succeed on a claim for

discrimination under the NYCHRL, which still requires a showing

of some disparate treatment. Plaintiff contends that he was

treated differently than Mr. Rose and Mr. Bosdeo (Pl. Opp. at

19), but Mr. Rose was more qualified and Mr. Basdeo was found

not to be an aggressor in the altercation. Thus, plaintiff

cannot show disparate treatment, and cannot succeed under the

NYCHRL. See Sotomayor, 862 F. Supp. 2d at 258 (even under

NYCHRL, “a plaintiff must still link the adverse employment

action to a discriminatory motivation”); see also Moore v.

Metro. Transp. Auth., 999 F. Supp. 2d 482, 501 (S.D.N.Y. 2013)

(“Even under the liberal NYCHRL standard, no jury viewing this

evidence could find [defendant] liable under either McDonnell

Douglas or a mixed motive analysis.”).

III. Plaintiff’s Retaliation Claim Fails under Title VII,

State Law, and Local Law

A. Legal Standard

The federal anti-retaliation statute “seeks to secure

th[e] primary objective [of] preventing an employer from

interfering (through retaliation) with an employee’s efforts to

secure or advance enforcement of [Title VII’s] basic

guarantees.” Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 63 (2006). As with discrimination claims, federal and

state retaliation claims are governed by the McDonnell Douglas

framework. Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d

Cir. 2013).

To establish a prima facie case of retaliation under

federal and state law, a plaintiff must show (1) participation

in a protected activity, (2) the defendant’s knowledge of the

protected activity, (3) an adverse employment action, and (4) a

causal connection between the protected activity and the adverse

employment action. Id. at 844. Once the plaintiff makes a

prima facie showing, the burden shifts to the employer to

articulate a legitimate, non-retaliatory reason for the

employment action. Id. at 845 (citing United States v. Brennan,

650 F.3d 65, 93 (2d Cir. 2011)). After a non-retaliatory reason

has been articulated, the presumption of retaliation drops, and

the plaintiff must then demonstrate the non-retaliatory reason

is a mere pretext for retaliation. Id.

A plaintiff “alleging retaliation in violation of

Title VII must show that retaliation was a ‘but-for’ cause of

the adverse action, and not simply a ‘substantial’ or

‘motivating’ factor in the employer's decision.” Id. (citing

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360

(2013)). This does not require proof that retaliation was the

only cause for the employer’s action, but that the adverse

action would not have occurred absent the retaliatory motive.

Id. at 846. “A plaintiff may prove that retaliation was a but-

for cause of an adverse employment action by demonstrating

weaknesses, implausibilities, inconsistencies, or contradictions

in the employer's proffered legitimate, nonretaliatory reasons

for its action.” Id.

With respect to retaliation claims, courts consider a

broader range of conduct than they do for discrimination claims.

Unlike the discrimination provision, the anti-retaliation

provision of Title VII is not limited to discriminatory actions

that affect the terms and conditions of employment. Burlington,

548 U.S. at 63. Courts properly assess “whether the actions of

an employer could dissuade a reasonable worker from making a

charge of discrimination.” Conforti v. Sunbelt Rentals, Inc.,

201 F. Supp. 3d 278, 302 (E.D.N.Y. 2016).

“The temporal proximity of events may give rise to an

inference of retaliation for the purposes of establishing a

prima facie case of retaliation under Title VII, but without

more, such temporal proximity is insufficient to satisfy [the

plaintiff]’s burden to bring forward some evidence of pretext.”

El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir.

2010). “[E]mployer actions prohibited by Title VII’s anti-

discrimination provision are limited to conduct that affects the

terms and conditions of employment, while under Title VII’s

anti-retaliation provision, the challenged action need not

affect the terms and condition of employment in order to

constitute unlawful retaliation.” Siddiqi v. New York City

Health & Hosps. Corp., 572 F. Supp. 2d 353, 372 (S.D.N.Y. 2008)

(citing Burlington, 548 U.S. at 63-64).

The “NYCHRL’s retaliation provision is broader than

Title VII’s[,] protecting plaintiffs who ‘oppos[e] any practice

forbidden under’ the law from conduct ‘reasonably likely to

deter a person engaging in such action.’” Id. at 76 (citing

Mihalik, 715 F.3d at 112). “While the NYCHRL has a less

demanding standard [for retaliation], a plaintiff still must

establish that there was a causal connection between [his]

protected activity and the employer’s subsequent action, and

must show that a defendant’s legitimate reason for [his]

termination was pretextual or motivated at least in part by an

impermissible motive.” Hughes v. Twenty-First Century Fox,

Inc., 304 F. Supp. 3d 429, 449 (S.D.N.Y. 2018) (quotation

omitted).

B. Application

Plaintiff argues that his September 2016 termination

was unlawful retaliation as a result of his complaints about the

comments Mr. Caballero made during the training session that

occurred in May 2015. (See Pl. Opp. at 16-17.) As an initial

matter, plaintiff contends that there is a factual dispute

regarding when the comments and corresponding complaints were

made; plaintiff argues that the comments by Mr. Caballero were

made in May 2016, and the date on the sign-in sheet, indicating

the training occurred in May 2015, was incorrect. (Id. at 17.)

However, in support, plaintiff has offered only his own

testimony, and Mr. Caballero’s testimony that he normally held

his training sessions on Wednesdays. (Id.) But even if the

sign-in sheet were off by a year, and the training actually

occurred on May 28, 2016, as plaintiff recalls, that was a

Saturday, not a Wednesday. Plaintiff’s speculation about the

date of the training, in the face of an admissible document

listing the date, does not create a triable issue as to when the

training occurred. Thus, there is insufficient temporal

proximity between the protected activity and the allegedly

retaliatory act for a prima facie showing that plaintiff’s

termination in September 2016 was linked to his compliants in

May 2015. See Elhanafy v. Shinseki, No. 10-cv-319, 2012 WL

2122178, at *17 (E.D.N.Y. June 12, 2012) (“In order for temporal

proximity to establish causality, the intervening period must be

‘very close,’—generally no more than a couple months, at

most[.]”) (quoting Clark County Sch. Dist. v. Breeden, 532 U.S.

268, 272 (2001)).

In any event, plaintiff’s claim fails under federal

and state law because he cannot establish that his alleged

complaints were a “but-for” cause of his termination. See

Nassar, 570 U.S. at 360. As described above, plaintiff was

terminated after defendants conducted an investigation, and

determined that plaintiff violated their employment policies

when he engaged in an altercation with a co-worker on September

1, 2016. No reasonable jury could find that his termination,

five days after the incident and following an investigation, was

in retaliation for complaints he made more than one year

earlier. Even under the broader NYCHRL, plaintiff could not

show that his termination was linked to his complaints, given

the investigation and the good faith belief on the part of NYADI

that plaintiff instigated a physical altercation with a co-

worker.

Likewise, plaintiff could not show that his complaint

was a “but for” cause of NYADI’s failure to promote him (which,

under plaintiff’s version of the facts, occurred one year before

he made any complaints). As discussed above, NYADI has

proffered evidence of valid reasons for choosing a different

employee for the position, Mr. Rose, and there has been no

showing of pretext.

Accordingly, defendants’ motion for summary judgment

is granted on the claims of retaliation pursuant to Title VII,

the NYSHRL, and the NYCHRL.

CONCLUSION

For the reasons stated above, defendants’ motion for

summary judgment is granted in its entirety. The Clerk of Court

is respectfully requested to enter judgment for defendants and

close this case.

SO ORDERED

Dated: September 30, 2020

Brooklyn, New York

/s/

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York