affirming summary judgment where the plaintiff attempted to “rescue her claim with a last-minute conversion to the position that, instead of what she had consistently said before, she faced adverse con- ditions because she is a woman”
How later courts described this case
- affirming summary judgment where the plaintiff attempted to “rescue her claim with a last-minute conversion to the position that, instead of what she had consistently said before, she faced adverse con- ditions because she is a woman”
- “assignment of a dispropor- tionately heavy workload” can constitute an adverse employment action
- finding the plaintiff’s suspension with pay pending an in- vestigation into wrongdoing was not an adverse employment action
- applying framework to § 1981
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MICHAEL BELVIN and MICHAEL MAYERS,
Plaintiffs, MEMORANDUM & ORDER
17-CV-6303 (NGG) (PK)
-against-
ELECTCHESTER MANAGEMENT, LLC,
Defendant.
NICHOLAS G. GARAUFIS, United States District Judge.
Plaintiffs Michael Belvin and Michael Mayers bring this employ-
ment discrimination action against their employer, Defendant
Electchester Management, LLC (“EML”). (Am. Compl. (Dkt. 7).)
Mr. Belvin and Mr. Mayers allege hostile work environment, race
discrimination, failure to promote, and retaliation claims against
under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. §§ 2000e et seq.; 42 U.S.C. §§ 1981 et seq.; the New York
State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 296 et
seq.; and the New York City Human Rights Law (“NYCHRL”),
N.Y.C. Admin. Code §§ 8-101 et seq. Mr. Mayers further alleges
EML discriminated and retaliated against him because of his dis-
ability in violation of the Americans with Disabilities Act (“ADA”),
42 U.S.C. §§ 12111 et seq. and the NYCHRL. Mr. Belvin also seeks
emotional distress damages.
Defendant moves for summary judgment on the federal claims,
and requests that the court decline jurisdiction over the remain-
ing state and city claims. (Def. Mot. for Summ. J. (“Mot.”) (Dkt.
44).) For the following reasons, Defendant’s motion is GRANTED
IN PART and DENIED IN PART.
BACKGROUND1
Defendant EML was formed in 2007 to manage five housing
companies, which previously operated as legally separate enti-
ties, that make up the housing complex known as Electchester
Housing (“Electchester Co-Op”). (Def.’s R. 56.1 Stmt. (“Def.
56.1”) (Dkt. 44-2) ¶¶ 1-2.) Before the formation of EML, each
housing company operated independently, separately managing
its own staff with no central governing body. (Def. 56.1 ¶ 2.) The
complex still maintains the designations used under the co-op ar-
rangement: First, Second, Third, Fourth, and Fifth Housing
Company. (Def. 56.1 ¶ 1.) EML’s forepersons, handypersons, and
porters are represented by the Service Employer’s International
Union Local 32BJ (“32BJ”) and operate under a collective bar-
gaining agreement (“CBA”). (Def. 56.1 ¶¶ 3-4.)
A. Mr. Belvin’s Claims
Mr. Belvin started working for Electchester Co-Op in 1999 as a
porter in Second Housing Company, remaining in that role after
EML was created in 2007. He was transferred to Third Housing
Company in 2016. (Def. 56.1 ¶ 12.; Pl.’s Dispute of Def.’s R. 56.1
Stmt. & Pl.’s R. 56.1 Stmt. (“Pl. 56.1”) (Dkt. 46) ¶ 12.) Mr. Belvin
is African-American and asserts that, throughout his tenure at
EML, he was subjected to a work environment rife with racist
imagery and remarks. He describes numerous incidents in which
he either observed or was the target of racist conduct.
1 The court constructs the following statement of facts from the parties’
Local Rule 56.1 Statements and the admissible evidence they submitted.
Except where otherwise noted, the following facts are undisputed. Where
the parties allege different facts, the court notes the dispute and credits the
Plaintiff’s version if it is supported by evidence in the record. All evidence
is construed in the light most favorable to the non-moving party with all
“reasonable inferences” drawn in its favor. ING Bank N.V. v. M/V Temara,
IMO No. 9333929, 892 F.3d 511, 518 (2d Cir. 2018).
Mr. Belvin claims that, around the time he started working for
Electchester Co-Op in 1999 or 2000 and until about 2015, there
was a figurine of a Black man posted to a wall in the coffee area,
with a Barbie doll positioned as if it were sitting on the man’s
penis. (Mar. 6, 2019 Tr. of Belvin Dep. (“Belvin Tr.”) (Dkt. 44-3)
at ECF p. 331, 87:21-88:6.) When Mr. Belvin complained about
the image to his union representative, Gene Schmanski, Mr.
Schmanski reportedly replied, “[i]f you want to remain working
here, I suggest you keep your mouth shut about things around
here.” (Belvin Tr. at 49:9-20.)
Mr. Belvin claims that in 2003 Bill Gambrell (also referred to
throughout the record as “Bill Graham Bell” or “Bill Grambell”),
a former general manager, hung a confederate flag in his office
and told Mr. Belvin the confederate flag should have been
adopted as the American flag. (Pl. 56.1 ¶ 120; Belvin Tr. at 90:9-
13.) Mr. Belvin reported this incident to Mr. Schmanski, who al-
legedly told him, “[i]f you want to keep your job, I suggest you
get with the program, get off this [B]lack stuff.” (Belvin Tr. 91:2-
5.) Mr. Belvin also claims that Mr. Gambrell would refer to Mr.
Belvin and other Black employees using a racist epithet and
would regularly tell Black employees to “get your [n-word] ass
over here.” (Pl. 56.1 ¶ 122.) EML denies these allegations as
based on unsupported deposition testimony, and further states
that Mr. Gambrell, who was a general manager at the Electches-
ter Co-Op, was never employed by EML. (Def.’s Reply to Pl.’s 56.1
(“Def. Reply”) (Dkt. 50) ¶¶ 6, 120, 122.)
Mr. Belvin claims that in 2009 a photo of President Obama dis-
played on the wall in the bulk room was defaced, with President
Obama’s face replaced with the image of a monkey. (Pl. 56.1 ¶
114; Belvin Tr. at 54:10-55:22.) Mr. Belvin reported this incident
to Juan Martinez, his foreman, who allegedly responded that
whoever defaced the image was merely joking. (Belvin Tr. at
57:20-25.)
Starting as early as 2012, Mr. Belvin was frequently called
“moreno,” a derogatory word for a Black person in Spanish, by
certain of EML’s Spanish-speaking employees. (Pl. 56.1 ¶ 124;
Belvin Tr. at 99:3-20.) He also alleges that other employees
would refer to him as “[n-word]”. (Pl. 56.1 ¶ 125; Belvin Tr. at
98:3-99:7.)
In 2013, Mr. Belvin’s co-workers hung a stuffed monkey from his
locker. (Pl. 56.1 ¶ 111; Belvin Tr. at 34:18-35:7.) Mr. Belvin re-
ported this incident to Mr. Martinez. (Belvin Tr. at 34:18-35:7.)
Mr. Martinez then reported the incident and Mr. Belvin’s com-
plaint to Tom Prezioso, the general manager, who reportedly
responded, “I don’t want to hear about that shit.” (Belvin Tr. at
44:21-45:13.)
Mr. Belvin claims there were several other incidents involving
stuffed monkeys, or other jungle animals, and plastic figurines of
monkeys being placed in the locker room, the lunch break area,
and the garbage compactor room. Mr. Belvin asserts that this
kind of behavior was a regular occurrence, and that he did not
always report it to management. (Belvin Tr. at 83:12-84:11.) Mr.
Belvin also claims the other employees would harass him by turn-
ing off the lights in the locker room, or in rooms where he was
eating, and saying, “[y]ou can’t see Mike.” (Belvin Tr. at 78:2-7.)
Mr. Belvin claims that in 2013, when he asked manager Anthony
Caiozzo to provide help in stripping floors, Mr. Caiozzo told Mr.
Belvin to shut his “fucking black mouth.” (Pl. 56.1 ¶ 123; Belvin
Tr. at 106:3-8, 115:15-16.) EML disputes this claim and asserts
Mr. Belvin never reported these comments to anyone at EML.
(Def. Reply ¶ 123.)
Mr. Belvin claims that in 2014 his manager Ed Wiley told him he
had to stop using his personal hand truck at work, and instead
use the hand truck that was issued to him by EML. (Belvin Tr. at
232:8-23.) After Mr. Belvin was told he could no longer use his
personal hand truck, he learned that two Hispanic employees,
who used the same type of personal hand trucks, were apparently
allowed to keep using their hand trucks. (Belvin Tr. at 235:21-
236:8, 237:8-12, 241:6-13; Pl. 56.1 ¶¶ 128-29.) EML asserts that
Mr. Belvin was told not to use his personal hand truck for safety
reasons, and that he was not disciplined and suffered no decrease
in pay, benefits, or position for using the unauthorized hand
truck. (Def. Reply ¶¶ 128-29.)
Mr. Belvin claims that in 2014 he was passed over for a promo-
tion to foreman because he did not have a good relationship with
the general manger, Mr. Prezioso, although Mr. Belvin admits he
never applied for the position. (Pl. 56.1 ¶ 127; Belvin Tr. at
212:21-213:11; Def. Reply ¶¶ 127, 130.) He also claims that Mr.
Prezioso offered the foreman job to Jose, a Hispanic employee
who was not as senior as Mr. Belvin, and whom Mr. Belvin had
trained as a porter. (Pl. 56.1 ¶ 130; Belvin Tr. at 285:13-286:10.)
Mr. Belvin testified that in 2015, he was assaulted while on the
job and called for help over the employees’ radio system. (Belvin
Tr. at 226:6-10.) Mr. Wiley arrived on the scene about 15
minutes later, accompanied by an electrician, and Mr. Belvin ex-
pressed frustration that it had taken so long for Mr. Wiley to
respond to his call. (Belvin Tr. at 226:13-19.) Mr. Wiley allegedly
said to the electrician, of Mr. Belvin, “[h]e’s always complaining
about something. They complain about that shit in South Caro-
lina, about that church thing,” which Mr. Belvin understood to
be a reference to the massacre of nine African-American church-
goers at Emanuel African Methodist Episcopal Church in
Charleston, South Carolina by a white supremacist on June 17,
2015. (Belvin Tr. at 226:13-24; Def 56.1 ¶ 40.) EML asserts that
Mr. Belvin never made a complaint about these alleged state-
ments. (Def. 56.1 ¶ 40.)
Mr. Belvin claims that on December 24, 2015, a white male
coworker, David Bourgade, greeted Mr. Belvin by saying
“[w]hat’s up boy”; after Mr. Belvin told Mr. Bourgade to stop and
complained to supervisors, EML claims that it suspended Mr.
Bourgade from work for one day. (Def. 56.1 ¶¶ 37-38; Pl. 56.1 ¶
37.) Mr. Belvin disputes that EML disciplined Mr. Bourgade, (Pl.
56.1 ¶ 38), and there is no evidence in the record that Mr.
Bourgade was formally disciplined. Mr. Belvin claims that in De-
cember of 2016, another employee, Ray Zayas, repeatedly called
Mr. Belvin “boy” after Mr. Belvin told him not to. (Def. 56.1 ¶ 41;
Pl. 56.1 ¶ 41; Belvin Tr. at 215:4-14, 216:2-20.) After Joseph Ca-
passo, Manager of First and Second Housing, heard Mr. Zayas
make these remarks over the radio, Mr. Zayas was suspended for
one day. (Def. 56.1 ¶ 41; Pl. 56.1 ¶ 41; Belvin Tr. at 219:2-14.)
Mr. Belvin claims he experienced emotional distress as a result of
the years of racist abuse he allegedly experienced while working
for EML. (Belvin Affidavit (“Belvin Aff.”) (Dkt. 47) ¶ 7.) EML
asked Mr. Belvin during his deposition whether he was making a
claim and seeking damages for emotional distress, to which Mr.
Belvin replied at the time he was not. (Def. 56.1 ¶ 66; Belvin Tr.
at 326:6-9.) However, Mr. Belvin has since stated that he was
confused about the requirements for making such a claim, and
mistakenly believed he could not bring a claim for emotional dis-
tress unless he had verification from a mental health expert. (Pl.
56.1 ¶ 66; Belvin Aff. ¶ 7.) Mr. Belvin confirmed in his affidavit
that he wishes to maintain his claim for emotional distress dam-
ages. (Belvin Aff. ¶ 7.)
EML contends that, over the course of his employment, Mr. Bel-
vin received numerous warnings and other forms of discipline for
failing to abide by employee protocols. For example, Mr. Belvin
allegedly received a written warning on February 26, 2015 for
wearing a non-EML-issued jacket, wearing a cell-phone earpiece
while working, and because of issues with his weekly timesheets.
(Def. 56.1 ¶ 14.) The warning stated that Mr. Belvin’s next in-
fraction could lead to suspension. (Id.) EML also asserts Mr.
Belvin received a written warning for video-recording his
coworkers during his shift on June 25, 2015. (Id. ¶ 15.)
EML points to several other write-ups and disciplinary actions
taken against Mr. Belvin which occurred after Mr. Belvin filed his
initial complaint with the EEOC. (See Def. 56.1 ¶¶ 15-20, 22-27.)
Specifically, EML states Mr. Belvin was either issued a written
warning or was otherwise disciplined for the following infrac-
tions: failing to answer multiple calls over his EML-issued radio
on August 12, 2015 (Def. 56.1 ¶ 16); wearing headphones while
working on September 2, 2015 (id.); not wearing proper uniform
while working in the winter of 2015 (id. ¶ 17); removing a piece
of a kitchen floor from an apartment that he believed contained
asbestos without first notifying management in March 2016 (id.
¶ 18); disrupting a safety meeting in April 2016 (id.); taking pho-
tos of work areas when he was supposed to be working in April
2016 (id.); entering apartments in which he was not assigned to
work in April 2016 (id.); arriving 15-20 minutes late to a training
session in December 2016 (id. ¶ 20); taking two unauthorized
days off in the spring of 2017 (id. ¶ 24); and failing to clock out
after working unauthorized overtime on May 11, 2017 (id. ¶ 25).
Sometime after he filed his EEOC complaint, EML’s general coun-
sel, Vito Mundo, allegedly told Mr. Belvin that he would make
Mr. Belvin’s disciplinary record, “go away” if Mr. Belvin dropped
his EEOC complaint. (Pl. 56.1 ¶ 138; Belvin Tr. at 246:11-
247:25.)
In July 2015, EML suspended Mr. Belvin for three days for throw-
ing a garbage bag and giving Caiozzo and Prezioso “an aggressive
look and using an aggressive tone.” (Def. 56.1 ¶ 58; Pl. 56.1 ¶
58.) After arbitrating the suspension in November 2016, the ar-
bitrator ruled in Mr. Belvin’s favor and concluded that his
conduct did not justify the suspension, although the arbitrator
did note Mr. Belvin had an “attitude.” (Def. 56.1 ¶ 59; Pl. 56.1 ¶
59.) EML repaid Mr. Belvin for the three days of work he had
missed. (Def. 56.1 ¶ 59; Pl. 56.1 ¶ 59.)
On August 16, 2016, EML suspended Mr. Belvin for one day
without pay after he said over the radio, “Enis, you need to come
here now, we have asbestos wall paper in my recycling area.” The
suspension was later converted into a final warning letter, and
EML repaid Mr. Belvin for the day of work he missed. (See Def.
56.1 ¶ 19; Pl. 56.1 ¶ 19.)
EML states that on February 2, 2017, Mr. Belvin received a writ-
ten warning after Richard Bonette, 32BJ shop steward, filed a
complaint about Mr. Belvin. (Def. 56.1 ¶ 22; Pl. 56.1 ¶ 22.) EML
instructed Mr. Belvin to stay away from Mr. Bonette and to stay
out of Second Housing, where Mr. Bonette worked. (Def. 56.1 ¶
22; Pl. 56.1 ¶ 22.) EML issued Mr. Belvin a written warning after
Mr. Belvin subsequently entered Second Housing. (Def. 56.1 ¶
23; Pl. 56.1 ¶ 23.)
Mr. Belvin asserts that, around 2017 or 2018, he was disciplined
for working past the end of his scheduled shift. (Belvin Tr. at
138:8-142:5; Def. 56.1 ¶ 131.) Mr. Belvin contends that, by con-
trast, a Hispanic coworker was permitted to sleep in the laundry
room, apparently without being reprimanded. (Pl. 56.1 ¶ 131;
Belvin Tr. at 138:18-139:14.) EML disputes this claim. (Def. Re-
ply ¶ 131.) Mr. Belvin also claims he was taken out of the
overtime pool, and was given overtime opportunities only for
snow removal work. (Pl. 56.1 ¶¶ 64-65.) EML states that it offers
overtime to employees based on a rotating list, and that they also
call out overtime requests over the radio. (Def. 56.1 ¶ 64; Def.
Reply ¶¶ 64-65.)
B. Mr. Mayers’s Claims
Mr. Mayers started working for the Electchester Co-Op as a por-
ter in the Second Housing Company in 2004, became an EML
employee in 2007 when EML was formed, and since 2013 has
worked in the First Housing Company. (Def. 56.1 ¶ 67; Pl. 56.1
¶ 67.) Mr. Mayers is African-American and was diagnosed with
leukemia on July 1, 2014. (Pl. 56.1 ¶ 154; Mar. 7, 2019 Tr. of
Mayers Dep. (“Mayers Tr.”) (Dkt. 44-3) at ECF p. 721, 30:5-10.)
In 2013, EML transferred Mr. Mayers to two buildings, with 72
units total, that lack elevators. (Pl. 56.1 ¶ 150; Def. 56.1 ¶ 77;
Mayers Tr. at 61:11-25, 64:7-65:4.) He asserts that when he was
transferred, he had to make up work that the previous porter had
failed to do, including stripping the floors, which had become
black from apparent neglect. (Mayers Tr. 76:3-21.) Mr. Mayers
claims he and the only other Black porter in his housing unit,
David Hewitt, were told to cover multiple other buildings when
the porters in charge of those buildings went on vacation, when
the typical protocol is that each porter is only responsible for cov-
ering one other building when the assigned porter goes on
vacation. (Mayers Tr. at 68:18-71:5.) Mr. Mayers asserts this is
not the normal practice, and he does not know of any other por-
ters being asked to cover more than one other building’s vacation
time. (Mayers Tr. at 71:24-72:18.)
Mr. Mayers asserts that Mr. Prezioso, the general manager, con-
stantly monitored his work. (Def. 56.1 ¶ 75; Pl. 56.1 ¶ 75; Mayers
Tr. at 44:16-21, 59:11-14.) For example, Mr. Mayers testified
that he and Mr. Hewitt were targeted by Mr. Prezioso, who di-
rected Mr. Wiley to remind them multiple times a week that their
buildings were not sufficiently clean. (Mayers Tr. at 49:19-
50:25.) When Mr. Mayers asked for clarification about what he
was doing wrong, he never received a clear answer. (Mayers Tr.
at 51:6-19, 54:8-56:4.) Mr. Mayers claims Mr. Prezioso did not
monitor non-Black employees in his housing unit in this manner.
(Mayers Tr. at 49:19-50:17.)
Around 2013, Mr. Mayers was assigned to strip a floor by himself,
even though this task typically requires four people. (Mayers Tr.
at 80:5-10.) When he asked for help carrying the floor-stripping
machine, his request was denied (Pl. 56.1 ¶ 150; Mayers Tr. at
87:10-19.) Mr. Mayers claims that only Black porters were asked
to perform this task without any help, and that non-Black em-
ployees were allowed to work in teams when stripping floors. (Pl.
56.1 ¶¶ 148, 150; Mayers Tr. at 44:16-45:4, 47:12-48:5, 84:2-
24, 90:20-92:2.) EML disputes Mr. Mayers’s allegation and con-
tends that several non-Black porters attended the meeting at
which management announced that porters would be expected
to strip floors on their own. (Def. Reply ¶ 148; Mayers Tr. at 82:2-
83:10.) Mr. Mayers also claims that he was asked to put up
Christmas decorations without assistance in 2013; he alleges that
he filed a grievance, and that EML no longer expects porters to
complete this task without help. (Def. 56.1 ¶ 86; Pl. 56.1 ¶ 86.)
Mr. Mayers asserts he was taken out of the overtime pool some
time in 2013 and not offered overtime except for snow removal.
(Pl. 56.2 ¶ 142; Mayers Tr. at 202:22-25, 205:10-22, 207:18-22.)
In early 2013, Mr. Mayers complained to Mr. Bonnette, the shop
steward, that overtime was not being distributed according to
seniority; after Mr. Bonnette spoke to Mr. Mayers’s supervisors,
Mr. Mayers received overtime compensation. (Def. 56.1 ¶ 91;
Mayers Tr. at 205:15-22.) EML asserts Mr. Mayers chose not to
work overtime after he returned to work from his medical leave
because of his health issues. (Def. 56.1 ¶ 94; Pl. 56.1 ¶ 94.) Mr.
Mayers does not dispute that he did not seek overtime after re-
turning from sick leave, but he asserts that he sought and was
denied overtime opportunities prior to his leave. (Mayers Tr. at
202:22-25; 203:4-20.)
Mr. Mayers claims he was passed over for a promotion in favor
of another employee who was white; however, EML disputes this
claim. (Pl. 56.1 ¶ 145; Def. Reply ¶ 145.) Mr. Mayers also wit-
nessed the monkey hanging from Mr. Belvin’s locker. (Mayers Tr.
at 306:19-308:10.) Mr. Mayers and Mr. Belvin complained to
Juan, the foreman, about the locker incident, but Mr. Mayers as-
serts that management did not take the situation seriously. (Pl.
56.1 ¶ 145; 307:20-308:6.) Mr. Mayers also alleges that a
coworker, Louie Orego, told him that “Black girls . . . smell” and
that Michelle Obama looked like a gorilla. (Pl. 56.1 ¶ 145; May-
ers Tr. at 317:17-318:23.) In April 2014, Mr. Mayers was
suspended for one day after telling Mr. Belvin to “stop sucking
management off” during a meeting. (Def. 56.1 ¶ 71; Pl. 56.1 ¶
71; Mayers Tr. at 179:9-19.) After Mr. Mayers challenged the
suspension, EML repaid him for the lost day of work. (Def. 56.1
¶ 71; Pl. 56.1 ¶ 71; Mayers Tr. at 179:9-180:8.)
Following Mr. Mayers’s leukemia diagnosis, he took an extended
leave of absence for approximately twelve months, beginning in
early July 2014. Mr. Mayers was diagnosed with leukemia on
July 1, 2014, and his last day at work before taking sick leave
was July 3, 2014. (Pl. 56.1 ¶ 154; Mayers Tr. at 31:24-33:13,
47:15-18, 140:10-22.) Mr. Mayers alleges that despite the fact
that he worked for the first six months of 2014, he was not
awarded a bonus that year. (Mayers Tr. at 191:6-193:13.) On
May 18, 2015, while still on leave for cancer treatment, Mr. May-
ers filed his initial EEOC complaint. About two months later, on
July 24, 2015, Mr. Mundo, EML’s general counsel, terminated
him due to his absence pursuant to the 32BJ CBA. (Pl. 56.1 ¶
158; Def. Reply ¶ 158; Mayers Tr. at 126:23-127:23, 138:4-23.)
However, after Mr. Mayers challenged the termination, EML
agreed to reinstate him, and he returned to work on August 17,
2015. (Def. Reply ¶ 158; Mayers Tr. at 130:6-132:17.) Upon re-
turning to work, Mr. Mayers requested reasonable
accommodations so he could attend chemotherapy treatment.
(Pl. 56.1 ¶ 155; Sept. 21, 2015 Dr. Pinkal Desai Letter (“Dr. Desai
Letter”) (Dkt. 46-1) at ECF p. 8.) Mr. Wiley sent Mr. Mayers a
letter stating his reasonable accommodation request could be ap-
proved only if Mr. Mayers gave Mr. Wiley permission to discuss
his medical status with other employees. (Pl. 56.1 ¶ 159; Sept.
10, 2015 Ed Wiley Letter (“Wiley Letter”) (Dkt. 46-1) at ECF p.
5.) EML asserts that it granted Mr. Mayers’s several disability-
related absences and allowed him to switch shifts with other em-
ployees so he could attend chemo treatment. (Def. Reply ¶¶ 155,
159).
In November 2017, Mr. Mayers got into an argument with fore-
man Enis Zudjelovic, in which he said, “[w]hat do I look like?
Your little [n-word] slave?” EML suspended Mr. Mayers for two
days as a result of the incident. (Def. 56.1 ¶ 73; Pl. 56.1 ¶ 73;
Mayers Tr. at 185:11-186:17.) Mr. Mayers filed a grievance to
dispute the suspension to no avail. Around this same time, man-
agement approached other employees to inquire whether Mr.
Mayers bullied them. Pursuant to this investigation, management
apparently solicited written statements from seven people. Six of
the statements are type-written and describe interpersonal issues
with Mr. Mayers, and the seventh is a hand-written note describ-
ing Mr. Mayers as “kind hearted.” (See Nov. 30, 2017 Written
Statements (Dkt 44-3) at ECF pp. 1,534-40.) Mr. Mayers asserts
that when management approached him about these bullying al-
legations, it referred to the subject of its investigation as “playing”
rather than “bullying.” (Mayers Tr. at 253:14-254:18.) Mr. May-
ers claims he inquired whom he had upset by his “playing,” but
management would not tell him who had made the complaints.
(Mayers Tr. at 253:20-24.) Mr. Mayers disputes that he bullied
anyone (Pl. 56.1 ¶ 168), and did not face any formal discipline
as a result of the complaints.
EML asked Dr. Mark Siegert to evaluate Mr. Mayers on May 29,
2019 as part of the discovery process. (See June 30, 2019 Foren-
sic Psych. Eval. Rep. (“Psych. Rep.”) (Dkt. 44-3) at ECF p. 1,542.)
Dr. Siegert concluded that Mr. Mayers “has such a high level of
paranoia, episodic psychosis . . . that . . . make it impossible to
have a high level of confidence in how he interprets events at the
workplace.” (Def. 56.1 ¶ 105.) Dr. Siegert noted that Mr. May-
ers’s psychiatrist prescribes him a high dose of an antipsychotic
medication, and that this in addition to the results of Dr. Siegert’s
own evaluation led him to believe Mr. Mayers has a serious men-
tal illness. (Id.) Dr. Siegert extrapolates from this diagnosis that
“it is not possible to have confidence that his work-place claims
are accurate.” (Id.) Dr. Siegert concluded that Mr. Mayers has a
“Histrionic Personality Type,” a “Negativistic Personality Type,”
that he is “Interpersonally Contrary,” and has a “Paranoid Per-
sonality Style.” (Id. ¶¶ 109-10.)
C. Procedural History
Both Mr. Belvin and Mr. Mayer filed, and then amended, com-
plaints with the EEOC. Mr. Belvin filed a complaint with the
EEOC on May 21, 2015 alleging race discrimination, which he
amended on July 23, 2015 to include a retaliation claim, and the
EEOC issued a Right to Sue letter on July 31, 2017. (May 21,
2015 Belvin EEOC Compl. (“Belvin EEOC Compl.”) (Dkt. 46-1)
at ECF p. 16; July 23, 2015 Belvin EEOC Amended Compl. (“Bel-
vin EEOC Amend.”) (Dkt. 46-1) at ECF p. 15; P. 56.1 ¶ 13.) Mr.
Mayers filed his initial EEOC complaint on May 18, 2015, which
he amended on August 26, 2015, and the EEOC issued a Right
to Sue letter on July 31, 2017. (May 18, 2015 Mayers EEOC
Compl. (“Mayers EEOC Compl.”) (Dkt. 46-1) at ECF p. 10; Aug.
26, 2015 Mayers Am. EEOC Compl. (“Mayers Am. EEOC”) (Dkt.
46-1) at ECF p. 9.) Plaintiffs filed their complaint in this court on
October 29, 2017. (Am. Compl.) EML filed a fully briefed motion
for summary judgment on April 13, 2020. (Mot.; Def. Mem. in
Supp. of Mot. (“Mem.”) (Dkt. 49); Mem. in Opp. to Mot. (“Opp.”)
(Dkt. 45).)
LEGAL STANDARD
Summary judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the mo-
vant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro.
56(a). “The role of the court is not to resolve disputed issues of
fact but to assess whether there are any factual issues to be tried.
In determining whether summary judgment is appropriate, this
[c]ourt will 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.” Brod v. Omya, Inc.,
653 F.3d 156, 164 (2d Cir. 2011).2 “A ‘material’ fact is one capa-
ble of influencing the case’s outcome under governing
substantive law, and a ‘genuine’ dispute is one as to which the
evidence would permit a reasonable juror to find for the party
opposing the motion.” Figueroa v. Mazza, 825 F.3d 89, 98 (2d
Cir. 2016) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). The movant may discharge its initial burden by
demonstrating that the non-movant “has ‘failed to make a show-
ing sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of
proof at trial.’” Lantheus Med. Imaging, Inc. v. Zurich Am. Ins., 225
F. Supp. 3d 443, 451 (S.D.N.Y. 2015) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 322-323 (1986)).
While the court must draw all inferences in favor of the non-mo-
vant, the non-movant “may not rely on mere speculation or
conjecture as to the true nature of the facts to overcome a motion
for summary judgment.” Fletcher v. Atex, Inc., 68 F.3d 1451, 1456
(2d Cir. 1995). Finally, in considering the movant Defendants’
motion, the court is mindful that the Second Circuit “has long
2 When quoting cases, and unless otherwise noted, all citations and quota-
tion marks are omitted and all alterations are adopted.
recognized the need for caution about granting summary judg-
ment to an employer in a discrimination case where . . . the
merits turn on a dispute as to the employer’s intent.” Walsh v.
N.Y.C. Hous. Auth., 828 F.3d 70, 74 (2d Cir. 2016). Nevertheless,
“[t]hough caution must be exercised in granting summary judg-
ment where intent is genuinely in issue, summary judgment
remains available to reject discrimination claims in cases lacking
genuine issues of material fact.” Chambers v. TRM Copy Ctrs.
Corp., 43 F.3d 29, 40 (2d Cir. 1994).
DISCUSSION
Because Plaintiffs bring multiple claims under several federal,
state, and city statutes, the court addresses them by theory of
discrimination.
A. Hostile Work Environment
Plaintiffs assert claims for hostile work environment under Title
VII, NYSHRL, and NYCHRL. Analyses of hostile work environ-
ment claims under federal and state law are coextensive. Davis-
Bell v. Columbia Univ., 851 F. Supp. 2d 650, 670 (S.D.N.Y. 2012).
To succeed on a hostile work environment claim under federal
and state law, a plaintiff must show first that “the workplace is
permeated with discriminatory intimidation, ridicule, and insult
that is sufficiently severe or pervasive to alter the conditions of
the victim’s employment and create an abusive working environ-
ment,” and second that “a specific basis exists for imputing the
conduct that created the hostile work environment to the em-
ployer.” Howley v. Town of Stratford, 217 F.3d 141, 153-154 (2d
Cir. 2000). Incidents of harassment must be continuous and not
merely episodic. Gorzynski v. JetBlue Airways Corp., 596 F.3d 93,
102 (2d Cir. 2010). Courts consider several factors in evaluating
hostile work environment claims, including: the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with the employee’s work per-
formance. Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003). As
such, “simple teasing, offhand comments, and isolated incidents
(unless extremely serious)” are generally insufficient to sustain a
hostile work environment claim. Faragher v. City of Boca Raton,
524 U.S. 775, 788 (1998). Although courts are generally reluc-
tant to grant summary judgment in such matters, “courts use a
totality of the circumstances approach for determining whether
a plaintiff’s work environment is sufficiently hostile to support a
hostile work environment claim.” Love v. City of N.Y. Dep’t of Con-
sumer Affs., 390 F. Supp. 2d 362, 371 (S.D.N.Y. 2005).
Consistent with its broad remedial purpose, the standard for hos-
tile work environment claims under the NYCHRL is considerably
less stringent than under NYSHRL and federal law. Under the
NYCHRL, there is no requirement that conduct be severe or per-
vasive before a hostile work environment claim may be sustained
and “even a single comment may be actionable in appropriate
circumstances.” Gorokhovsky v. N.Y.C. Hous. Auth., 552 F. App’x
100, 102 (2d Cir. 2014). As such, for the NYCHRL claim, the
court must determine only whether “there is a triable issue of fact
as to whether the plaintiff has been treated less well than other
employees because of” his membership in a protected class. Da-
vis-Bell v. Columbia Univ., 851 F. Supp. 2d 650, 671 (S.D.N.Y.
2012). “With that said, the NYCHRL, like Title VII and the
NYSHRL, is still not a general civility code, and petty slights and
trivial inconveniences are not actionable.” Id.
1. Mr. Belvin
Mr. Belvin has adduced sufficient evidence from which a reason-
able juror could find he was subjected to a work environment
permeated with racial enmity sufficient to alter the terms and
conditions of his employment. Mr. Belvin testified that both he
and Mr. Mayers were referred to as “[n-word]” on multiple occa-
sions, and that his manager, Juan Martinez, would frequently
refer to him as “moreno” over the radio. (Belvin Tr. at 99:3-25).
In 2013, Mr. Caiozzo, a manager, reportedly told Mr. Belvin to
“shut his fucking black mouth” when Mr. Belvin asked Mr. Cai-
ozzo for help stripping floors. (Id. at 103:16-106:8.) Mr. Belvin
also had to endure his coworkers frequently calling him “boy,”
even after one co-worker, Mr. Bourgade, had been specifically
instructed not to refer to Mr. Belvin or any Black employee in this
manner. (Id.. at 196:13-197:8.)
In addition to being on the receiving end of racist language, Mr.
Belvin found toy monkeys or images of monkeys placed in his
various work areas on multiple occasions. (See id. at 34:18-35:7,
38:4-39:4, 54:10-55:25; see also Pl.’s Photo of Plastic Monkey
(Dkt. 46-1) at 2; Pl.’s Photo of Stuffed Monkey (Dkt. 46-1) at 3;
Pl.’s Photo of Figurine (Dkt. 46-1) at 4.) In 2013, after finding
the stuffed monkey hanging from his locker, Mr. Belvin com-
plained to his manager, Mr. Martinez, who then told Mr.
Prezioso; Mr. Prezioso reportedly responded that he did not want
to hear about it and no further investigation was undertaken.3
(Belvin Tr. at 44:14-45:23.) Mr. Belvin also asserts that around
2012 and 2013 stuffed monkeys and other jungle animals were
placed in the area where he and Mr. Mayers ate lunch. (Id. at
3 The court notes that Mr. Prezioso asserts a different version of events
with respect to the incident involving the toy monkey hanging on the
locker. He testified during his deposition that he first learned about the
problem from Mr. Wiley over the phone, around the time it happened—
although he did not remember when this was. (Prezioso Tr. (Dkt. 44-3) at
ECF p. 117, 50:11-52:25.) He asserts he told Mr. Wiley to investigate, and
that Mr. Wiley did not find evidence of a monkey or anyone willing to
admit they were responsible for hanging it from Mr. Belvin’s locker. (Id. at
50:21-52:8.) Mr. Prezioso then apparently spoke to EML’s general counsel,
Mr. Mundo, about it, and no further investigation was made. (Id. at 52:9-
18.) While this conflicts with Mr. Belvin’s account, it does not undermine
a finding that Mr. Belvin has succeeded in raising a genuine issue of fact
for trial, especially in light of the requirement that the court draw all rea-
sonable inferences in favor of the non-moving party.
59:25-60:19.) And, even after alerting management to the situa-
tion, Mr. Belvin found yet another plastic monkey in the
compactor room in 2015. After Mr. Belvin complained to Mr.
Wiley about these stuffed animals, Mr. Wiley took unspecified
actions to put a stop to it. (Id. at 80:19-83:18; see also Pl.’s Photo
of Plastic Monkey.) Taken together, a reasonable jury could con-
clude that these facts, if proven at trial, establish that Mr. Belvin
was subjected to a hostile work environment because of his race.
Further, Mr. Belvin has established a sufficient basis to impute
the harassment to EML. “When the source of the alleged harass-
ment is a co-worker, the plaintiff must demonstrate that the
employer failed to provide a reasonable avenue for complaint or
[that] it knew, or in the exercise of reasonable care should have
known, about the harassment yet failed to take appropriate re-
medial action.” Howley, 217 F.3d at 154. “When . . . the alleged
harasser is in a supervisory position over the plaintiff, the objec-
tionable conduct is automatically imputed to the employer.”
Gorzynski, 596 F.3d at 103. Although Mr. Belvin did not com-
plain to management about every racist remark or figurine, the
record shows EML was aware of the ongoing, racialized abuse.
(See Dec. 19, 2014 Saliche Memo. (Dkt. 44-3) at ECF p. 1,491
(memorializing Mr. Belvin’s complaint against Mr. Saliche for re-
ferring to him as “moreno”); Dec. 29, 2016 Zayas Memo. (Dkt.
44-3) at ECF p. 1,502 (suspending Mr. Zayas for referring to Mr.
Belvin as “boy”); Belvin Tr. at 36:22-37:21 (Mr. Prezioso saying
he did not want to hear about the monkey on Mr. Belvin’s
locker); id. at 103:16-106:8 (Manager Anthony Caiozzo telling
Mr. Belvin to “shut his fucking black mouth”).) And while there
is evidence management took steps to remediate some of the rac-
ist language used by specific coworkers by disciplining them,
there is scant evidence they did the same when it came to the toy
animals. Accordingly, Mr. Belvin has adduced facts sufficient to
impute the harassment by his coworkers and supervisors to
EML. 4 See Faragher, 524 U.S. at 789 (“[T]he combined
knowledge and inaction may be seen as demonstrable negli-
gence, or as the employer’s adoption of the offending conduct
and its results, quite as if they had been authorized affirmatively
as the employer’s policy.”). Therefore, EML’s motion for sum-
mary judgment on Mr. Belvin’s federal, state, and city hostile
work environment claims is denied.
2. Mr. Mayers
Mr. Mayers has likewise adduced sufficient evidence from which
a reasonable juror could conclude EML subjected him to a hostile
work environment. Mr. Mayers’s harassment claim rests on
largely the same facts as Mr. Belvin’s. Mr. Mayers witnessed the
stuffed monkey hanging from Mr. Belvin’s locker, as well as the
monkey hanging from the door of the room that Mr. Belvin used
to change clothes. (Mayers Tr. at 307:2-308:6, 308:11-309:13.)
He also witnessed the defaced image of President Obama, and
further alleges that a co-worker, Louie Orego, “used to say
Michelle Obama looks like a monkey, like a gorilla . . . .” (Mayers
Tr. at 317:17-19.) Mr. Orego allegedly also told Mr. Mayers that
4 Defendant’s argument that Mr. Belvin cannot rely on his own deposition
testimony to create a fact issue for summary judgment is misguided. “Alt-
hough summary judgment is proper where there is nothing in the record
to support plaintiff’s allegations other than plaintiff’s own contradictory
and incomplete testimony, district courts should not engage in searching,
skeptical analyses of parties’ testimony in opposition to summary judg-
ment,” Rivera v. Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11, 20 (2d
Cir. 2014). Rather, “[i]n the ordinary case where a district court is asked
to consider the contradictory deposition testimony of a fact witness, or
where the contradictions presented are not real, unequivocal, and inescap-
able, the general rule remains that a district court may not discredit a
witness’s deposition testimony on a motion for summary judgment, be-
cause the assessment of a witness’s credibility is a function reserved for the
jury.” In re Fosamax Products Liability Litig., 707 F.3d 189, 194 n.4 (2d Cir.
2013). Because EML does not argue that Mr. Belvin’s testimony is imper-
missibly contradictory or incomplete, there is no basis for the court to
disregard it at this stage.
“he don’t mess with black girls because they got a smell.” (Mayers
Tr. at 318:12-13.) Mr. Mayers also claims he complained to Mr.
Prezioso when another employee, Giovanni Trochia, called Mr.
Mayers “boy.” (Mayers Tr. at 332:24-334:25.) Mr. Prezioso ap-
parently investigated and spoke to Mr. Trochia about the
incident, although it is not clear whether any disciplinary
measures were taken. (Mayers Tr. at 334:18-23.) Mr. Mayers
also claims that Mr. Belvin told him that Mr. Zayas called Mr.
Belvin “boy” over the radio, and about Mr. Wiley’s comments
about the church shooting. (Mayers Tr. at 335:2-336:25.)
Because Mr. Mayers witnessed many of the facts supporting Mr.
Belvin’s harassment claim, in addition to the claims specific to
Mr. Mayers described above, Mr. Mayers has established a pat-
tern of racist harassment sufficient to establish a hostile work
environment claim under Title VII, NYSHRL, and NYCHRL. See
Gorzynski, 596 F.3d at 103 (“[I]ncidents of . . . harassment di-
rected at employees other than the plaintiff can be used as proof
of a hostile work environment claim because one of the critical
inquiries is the general work atmosphere as well as specific hos-
tility to the plaintiff.”). Accordingly, EML’s motion for summary
judgment on Mr. Mayers’s federal, state, and city hostile work
environment claims is denied.
B. Race Discrimination
Plaintiffs next argue that they were discriminated against on the
basis of their race because they were treated less favorably than
their non-African-American co-workers in the terms and condi-
tions of their employment. Such disparate treatment claims
brought under Title VII, NYSHRL, and 42 U.S.C. § 1981 are ana-
lyzed under the burden-shifting framework established by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Walsh, 828 F.3d at 74-75 (applying framework to
Title VII and NYSHRL); Littlejohn v. City of N.Y., 795 F.3d 297,
312 (2d Cir. 2015) (applying framework to § 1981). Disparate
treatment claims brought under the NYCHRL must be analyzed
“separately and independently from any federal and state law
claims . . . construing the NYCHRL’s provisions broadly . . . to the
extent that such a construction is reasonably possible.” Mihalik v.
Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir.
2013).
First, a plaintiff must establish a prima facie case of discrimina-
tion. McDonnell Douglas, 411 U.S. at 802. The plaintiff’s burden
at this first step is “not onerous,” see Tex. Dep’t of Cmty. Affs. v.
Burdine, 450 U.S. 248, 253 (1981), and “minimal”. St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). To establish a
prima facie case under any of these statutes, including NYCHRL,
a plaintiff show that: (1) he is a member of a protected class; (2)
he was qualified for and satisfactorily performing his job; (3) he
suffered an adverse employment action; and (4) the circum-
stances of the adverse action raise an inference of discrimination.
Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008). Second,
once a plaintiff makes a prima facie showing, a presumption of
discrimination arises and the burden shifts to the defendant to
articulate a legitimate, non-discriminatory reason for the em-
ployment action. Id.; see also Carlton v. Mystic Transp., Inc., 202
F.3d 129, 136 (2d Cir. 2000) (“After a plaintiff demonstrates a
prima facie case of discrimination, the defendant must produce
evidence which, taken as true, would permit the conclusion that
there was a non-discriminatory reason for the adverse action.”).
Third, the burden shifts back to the plaintiff, who then must
“prove by a preponderance of the evidence that the reasons of-
fered by the defendant were not its true reasons, but were a
pretext for discrimination.” Back v. Hastings on Hudson Union
Free Sch. Dist., 365 F.3d 107, 123 (2d Cir. 2004). To meet this
burden, “the plaintiff may, depending on how strong it is, rely
upon the same evidence that comprised her prima facie case,
without more.” Id. at 124. Furthermore, to defeat summary judg-
ment, “the plaintiff is not required to show that the employer’s
proffered reasons were false or played no role in the employment
decision, but only that they were not the only reasons and that
the prohibited factor was at least one of the ‘motivating’ factors.”
Id. at 123.
EML does not dispute the first two elements of Plaintiffs’ prima
facie cases—that Plaintiffs, both African-American men, are
members of a protected class and qualified for their position as
porters—but contends that neither Plaintiff has demonstrated
the third and fourth element, i.e. that he suffered an adverse em-
ployment action and that any alleged adverse employment action
occurred under circumstances giving rise to an inference of dis-
crimination.
The Second Circuit has established that an adverse employment
action is a “materially adverse change in the terms and conditions
of employment,” Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d
Cir. 2008), meaning an action “which is more disruptive than a
mere inconvenience or an alteration of job responsibilities.”
Terry, 336 F.3d at 138. Some examples “include termination of
employment, a demotion evidenced by a decrease in wage or sal-
ary, a less distinguished title, a material loss of benefits,
significantly diminished material responsibilities, or other indices
. . . unique to a particular situation.” Id. In addition, courts in this
Circuit have found that “[t]he assignment of a disproportionately
heavy workload, in itself, may constitute an adverse action.” Jo-
seph v. Brooklyn Developmental Disabilities Servs. Off., No. 12-cv-
4402, 2016 WL 6700831, at *20 (E.D.N.Y. Sept. 30, 2016) (cit-
ing Feingold v. New York, 366 F.3d 138, 153 (2d Cir. 2004)).
An adverse employment action can be shown to have occurred
under circumstances giving rise to an inference of discrimination
through evidence of, inter alia, “the employer’s criticism of the
plaintiff’s performance in ethnically degrading terms; or its invid-
ious comments about others in the employee’s protected group;
or the more favorable treatment of the employees not in the pro-
tected group; or the sequence of events leading to plaintiff’s
discharge.” Littlejohn, 795 F.3d at 312. Where, as in this case, a
plaintiff relies on disparate treatment evidence to raise an infer-
ence of discrimination, he “must show [that he] was similarly
situated in all material respects to the individuals with whom he
seeks to compare [him]self.” Mandell v. Cnty. of Suffolk, 316 F.3d
368, 379 (2d Cir. 2003); see also Blaise v. Verizon N.Y. Inc., 804 F.
App'x 68, 70 (2d Cir. 2020) (“An employee is similarly situated
to co-employees if they were (1) subject to the same performance
evaluation and discipline standards and (2) engaged in compa-
rable conduct.”).
1. Mr. Belvin
Mr. Belvin alleges numerous adverse employment actions, each
of which he claims occurred under circumstances giving rise to
an inference of discrimination: (1) he was told not to use his per-
sonal hand truck even though Hispanic employees were
permitted to use their personal hand trucks; (2) he was removed
from the overtime pool, and only permitted to earn overtime pay
by performing emergency snow removal; (3) he was subject to a
series of disciplinary actions for “small things”; and (4) he was
subjected to a hostile work environment.
a. Hand Truck
Mr. Belvin claims that he suffered an adverse employment action
when EML prohibited him from using his personal hand truck.
According to Mr. Belvin, he used his personal hand truck, which
is larger than the EML-issued hand trucks, because it allowed him
to more efficiently carry the many items, such as garbage bags,
he was responsible for disposing of each day. (Belvin Tr. at
232:6-233:20.) As a result of being forced to use the smaller,
EML-issued hand truck, Mr. Belvin asserts that his workload in-
creased substantially: while he was able to move up to nine
garbage bags at a time with his personal hand truck, the smaller
hand truck only allowed him to move two at a time. (Belvin Tr.
at 232:6-16.)
While the use of the EML-issued hand truck might have made
Mr. Belvin’s garbage disposal duties less efficient, he fails to es-
tablish that the requirement that he use an EML-issued hand
truck was “more disruptive than a mere inconvenience” to the
conditions of his work. Terry, 336 F.3d at 138. Likewise, the evi-
dence does not suggest that the change in hand truck constituted
an assignment of a “disproportionately heavy workload” for Mr.
Belvin. Cf. Feingold, 366 F.3d at 153 (“assignment of a dispropor-
tionately heavy workload” can constitute an adverse employment
action). Accordingly, Mr. Belvin has failed to establish a prima
facie case of discrimination on his hand truck claim, and the court
grants summary judgment to EML on that claim.
b. Overtime pool
Mr. Belvin next claims he suffered an adverse employment action
when he was removed from the overtime pool while other His-
panic and white porters were allocated overtime in the usual
course. (Pl. Mem. at 6; Def. 56.1 ¶¶ 63-65; Pl. 56.1 ¶¶ 63-65.)
Removal from an overtime pool can often constitute an adverse
employment action. See, e.g., Bowen-Hooks v. City of New York, 13
F. Supp. 3d 179, 217-18 (E.D.N.Y. 2014) (collecting cases). Here,
however, the evidence does not support Mr. Belvin’s assertion
that EML removed him from the overtime pool. To the contrary,
Mr. Belvin’s own testimony corroborates EML’s assertion that it
used a rotating system to offer overtime as new projects become
available and also called out requests for overtime work over the
radio, to which anyone could respond. (Def. 56.1 ¶ 64.) For ex-
ample, Mr. Belvin testified that he heard calls on the radio for
overtime work, and that he could have accepted those offers (and
that, on one occasion when his foreman offered him overtime, he
took it). (Belvin Tr. at 25:9-28:2.) Further, despite his claims that
he was denied overtime as a result of filing his EEOC complaint
in the summer of 2015, he could not recall a time since 2009 or
2010 when another porter took an overtime shift that Mr. Belvin
had wanted to work. (Belvin Tr. at 296:5-18). Accordingly, Mr.
Belvin has failed to adduce sufficient evidence from which a rea-
sonable juror could conclude that EML removed him from the
overtime pool.
c. Unfair discipline
Mr. Belvin also claims he was subject to a series of disciplinary
actions for small infractions, and that Hispanic and white em-
ployees were not disciplined for similar infractions. (Def. 56.1 ¶¶
49-50; Pl. 56.1 ¶ 49.) For example, Mr. Belvin was written up for
staying at work past the end of his scheduled shift (Belvin Tr. at
144:16-18, 144:25-145:12), wearing an EML-issued hat improp-
erly (id. at 143:22-144:13), and arriving twenty minutes late to
a meeting (id. at 147:16-148:17), and he was suspended for
throwing a bag of garbage. (Id. at 144:22-24.) However, Mr. Bel-
vin has not provided any evidence to support a finding that EML’s
responses to these infractions amount to anything more than his
“employer merely enforc[ing] its preexisting disciplinary policies
in a reasonable manner,” Brown v. City of Syracuse, 673 F.3d 141,
150 (2d Cir. 2012). Accordingly, he cannot establish that these
disciplinary measures constitute an adverse employment action.
See id. (finding the plaintiff’s suspension with pay pending an in-
vestigation into wrongdoing was not an adverse employment
action); Joseph, 2016 WL 6700831, at *21 (E.D.N.Y. Sept. 30,
2016) (“Workplace reprimands/disciplinary write-ups . . . do not
constitute adverse employment actions unless they result in a
material change in benefits or to the terms and conditions of em-
ployment.”). Thus, he has failed to establish the third prong of a
prima facie case of discrimination based on these allegations of
unfair discipline.
Morever, Mr. Belvin likewise fails to establish that the alleged
unfair discipline was racially motivated. To the contrary, EML has
offered evidence that other employees were disciplined for simi-
lar infractions to those described by Mr. Belvin. (See Verbal
Warning to Joe McCormick (Dkt. 44-3) at ECF p. 1,504 (staying
at work past his scheduled shift without permission); Warning
Letter to Rufino Quintana (Dkt. 44-3) at ECF p. 1,506 (same);
Suspension Letter to Rufino Quintana (Dkt. 44-3) at ECF p. 1,508
(one day suspension for staying late without permission); Writ-
ten Warning to Luis Herrera (Dkt. 44-3) at ECF p. 1,447 (failing
to wear proper attire); Written Warning to David Bourgade (Dkt.
44-3) at ECF p. 1,445 (same).) Accordingly, Mr. Belvin’s allega-
tions of unfair discipline fall short of establishing a prima facie
case of discrimination, and EML is entitled to summary judgment
on this claim.
d. Hostile Work Environment
Mr. Belvin asserts that his co-workers’ and supervisors’ racist lan-
guage and comments, as well as the repeated placement of toy
and/or stuffed monkeys and images of monkeys in his work ar-
eas, constitute adverse employment actions sufficient to sustain
his prima facie case of discrimination. The court construes his
hostile work environment claim, supra, to satisfy the adverse em-
ployment action and disparate treatment prongs of his
discrimination prima facie case. See, e.g., Feingold, 366 F.3d at
149 (“A plaintiff may establish a claim of disparate treatment un-
der Title VII . . . by demonstrating that harassment [on the basis
of, inter alia, race] amounted to a hostile work environment.”)
Because Mr. Belvin has succeeded in establishing sufficient evi-
dence to allow a reasonable factfinder to conclude EML subjected
him to a hostile work environment, his disparate treatment claim
may proceed on the same basis. Accordingly, EML’s motion for
summary judgment is denied with respect to this aspect of Mr.
Belvin’s discrimination claim.
2. Mr. Mayers
Mr. Mayers claims he suffered the following adverse employment
actions, each of which he claims occurred under circumstances
giving rise to an inference of discrimination: (1) he was removed
from the overtime pool; (2) he was told to strip floors alone with-
out any help, although non-Black employees were allowed
assistance in stripping floors; (3) he was subject to Mr. Prezioso’s
micromanagement, whereas non-Black employees were free
from such scrutiny; (4) he was transferred to a 72-unit walk-up
building; and (5) he was subjected to a hostile work environ-
ment.
a. Overtime pool
First, Mr. Mayers claims he suffered an adverse employment ac-
tion when EML removed him from the overtime pool following
an argument between Mr. Mayers and his manager, Mr. Wiley.
(Mayers Tr. at 202:3-22, 205:10-13, 218:9-219:7.) As explained
above, removal from the overtime pool can constitute an adverse
employment action. Unlike Mr. Belvin, Mr. Mayers has proffered
evidence that he was in fact removed from the overtime pool,
thus satisfying the third prong of the prima facie case. (Mayers
Tr. at 218:9-219:7; 210:14-26; 221:3-19.) Mr. Mayers has also
adduced evidence that the circumstances surrounding his re-
moval were racially motivated. (sSee id. at 209:6-16 (explaining
that all the non-black porters in Mr. Mayers’s housing unit were
not removed from the overtime pool).)
However, EML has proffered a non-discriminatory reason for Mr.
Mayers’s removal from the overtime pool, arguing that it was the
result of an argument between Mr. Mayers and Mr. Wiley. And
Mr. Mayers has failed to adduce evidence to suggest that this rea-
soning is pretext. To the contrary, Mr. Mayers himself attributes
his removal from the overtime pool to an argument he had with
his manager about his workload and his inability to help a
coworker before finishing his own work. (Id. at 209:17-24.) The
only evidence he offers to suggest that the argument was mere
pretext is the conclusory statement that “[e]verything they done
was based on race.” (Id. at 209:8-9.) Accordingly, Mr. Mayers has
failed to establish a genuine issue of material fact as to his over-
time pool claim, and summary judgment is granted in favor of
EML.
b. Stripping floors
Mr. Mayers next claims he suffered an adverse employment ac-
tion when he was told to strip floors alone even though EML’s
general policy was for porters to strip floors in teams. (Id. at 80:5-
22; 83:7-10; Def. 56.1 ¶¶ 82-83.) Such a directive could well con-
stitute an adverse employment action should it significantly
increase the employee’s workload. See Joseph, 2016 WL
6700831, at *20 (stripping floors, among other evidence of in-
creased workload, found to be evidence of adverse employment
action). Here, however, Mr. Mayers has not proffered any evi-
dence that he actually stripped floors alone after the directive.
(Mayers Tr. at 87:23-88:4.) He therefore has failed to demon-
strate that his workload increased in a manner that would
constitute an adverse employment action. Accordingly, EML is
granted summary judgment on this claim.
c. Micromanagement
Mr. Mayers next claims he suffered an adverse employment ac-
tion when he and the other Black porter in his housing unit, Mr.
Hewlitt, were singled out by Mr. Prezioso and Mr. Wiley for hav-
ing insufficiently clean buildings. (Id. at 51:6-15.) According to
Mr. Mayers, Mr. Wiley commented on this deficiency during in-
formal morning meetings several times a week. (Id.) At these
meetings, none of the non-Black porters were similarly criticized.
When Mr. Mayers sought clarification about what exactly was
not clean, he did not receive an answer. At one point, at the di-
rection of Mr. Prezioso, Mr. Wiley accompanied Mr. Mayers
inside his building to show him what was wrong. (Id. at 55:15-
19.) However, once inside, when Mr. Mayers again asked for
clarification about what he was doing wrong, Mr. Wiley appar-
ently responded, “I don’t know Mike. Just clean the building.”
(Id. at 55:25-56:4.) Mr. Hewlitt was subject to similar scrutiny,
and the same week Mr. Wiley purported to show Mr. Mayers
what was wrong with his building, Mr. Bonnette, at the behest of
Mr. Wiley, and Mr. Mayers took a tour of Mr. Hewlitt’s building
to assess its cleanliness. (Id. at 57:6-58:6.) Mr. Bonnette appar-
ently agreed with Mr. Mayers that there was nothing wrong with
Mr. Hewlitt’s building. (Id. at 59:11-14.)
Mr. Mayers has failed to establish that he suffered an adverse
employment action due to EML’s alleged micromanagement. In
fact, while “there are no bright-line rules for determining
whether an employee has suffered an adverse employment ac-
tion . . . close monitoring by a supervisor or excessive scrutiny . .
. [will not] constitute adverse employment actions in the absence
of other negative results such as a decrease in pay or being placed
on probation.” Jaeger v. N. Babylon Union Free Sch. Dist., 191 F.
Supp. 3d 215, 226 (E.D.N.Y. 2016). Here, Mr. Mayers has not
presented evidence of any “other negative results”—indeed, he
does not even allege he was actually disciplined for failing to
clean his building properly, only that he was repeatedly told his
building was not clean. Accordingly, EML’s apparent microman-
agement does not qualify as an adverse employment action and
EML is therefore entitled to summary judgment on this claim.
d. Transfer to 72-unit walk-up
Mr. Mayers claims he suffered an adverse employment action
when EML transferred him from Building 9 in Second Housing
to Buildings 1 and 6 in First Housing because it resulted in an
increased workload. (Mayers Tr. at 63:20-65:4.) As previously
discussed, “a disproportionately heavy workload above that
which [an employee] already bore,” may constitute an adverse
employment action. Joseph, 2016 WL 6700831, at *21. Here, Mr.
Mayers testified that: (1) his transfer caused him to do extra
cleaning work because Buildings 1 and 6 had been neglected
such that it required extra work to clean them; and (2) he was
required to cover two additional buildings as the back-up porter,
even though the general practice was that porters were only re-
quired to serve as back-up to one other building. (See Mayers Tr.
at 43:2-9; 63:2-11; 64:25-65:3.) In addition, Mr. Mayers testified
that while Building 9 in Second Housing had an elevator, Build-
ings 1 and 6 in First Housing did not. (Id.)
Even assuming that Mr. Mayers has established that his transfer
constitutes an adverse employment action because his workload
increased, he has failed to adduce evidence that the circum-
stances surrounding the transfer give rise to an inference of
discrimination. Mr. Mayers testified that he believed he was
transferred due to his race, “[b]ecause the way the building is
designed it’s designed for you to fail.” (Id. at 64:11-12.) However,
beyond Mr. Mayer’s conclusory assertion that EML wanted to
punish or harass him because of his race, he points to no evidence
to support this supposition. To the contrary, he acknowledges
that other non-Black porters had been assigned to the same
buildings both before and after he worked there. In addition, the
porters who worked in Buildings 1 and 6 before and after Mr.
Mayers all had the same workload and responsibilities that he
did. (Def. 56.1 ¶ 79.) Accordingly, Mr. Mayers has failed to es-
tablish a prima facie case of discrimination, and EML is granted
summary judgment on this claim.
e. Hostile work environment
Like Mr. Belvin, Mr. Mayers asserts that his co-workers’ and su-
pervisors’ racist language and comments, and the repeated
placement of toy and/or stuffed monkeys and images of monkeys
in various work areas, constitute adverse employment actions
sufficient to sustain his disparate treatment claim. As with Mr.
Belvin, the court again construes Mr. Mayers’s hostile work envi-
ronment claim, supra, to satisfy the adverse employment action
and disparate treatment prongs of his discrimination prima facie
case. Accordingly, EML’s motion for summary judgment is denied
with respect to this aspect of Mr. Mayers’s discrimination claim.
C. Failure to promote
Both Plaintiffs allege that EML discriminated against them by
failing to promote them because of their race. “To establish a
prima facie case for discriminatory failure to promote, a plaintiff
must demonstrate that: (1) he is a member of a protected class;
(2) he applied for promotion to a position for which he was qual-
ified; (3) he was rejected for the position; and (4) the employer
kept the position open and continued to seek applicants.” Mauro
v. S. New Eng. Telecomms., Inc., 208 F.3d 384, 386 (2d Cir. 2000).
Further, “unless an employee can demonstrate that the job at is-
sue was not posted and that he had no knowledge of the vacancy
before it was filled or otherwise attempted to apply for it through
informal procedures endorsed by the employer, the plaintiff must
show that he actually applied for the position in question and
was rejected—the so-called ‘specific application rule.’” Joseph,
2016 WL 6700831, at *32. The Second Circuit has explained that
in determining whether a plaintiff was qualified for a position,
he must establish “basic eligibility for the position at issue,” Au-
licino, 580 F.3d at 81, and that “being ‘qualified’ refers to the
criteria the employer has specified for the position.” Williams v.
R.H. Donnelley, Corp., 368 F.3d 123, 127 (2d Cir. 2004).
a. Mr. Belvin
Mr. Belvin argues EML discriminated against him by improperly
passing him over for a promotion to foreman. Mr. Belvin did not
apply for the foreman position, so he must demonstrate that the
position “was not posted and that he had no knowledge of the
vacancy before it was filled or otherwise attempted to apply for
it through informal procedures.” Mauro, 208 F.3d at 386. Mr.
Belvin has failed to adduce non-hearsay evidence that EML did
not post the vacancy, as it was required to do by the CBA. (CBA
(Dkt. 44-3) at ECF p. 1,682 (requiring EML to post vacancies in
the building where the vacancy arises for a seven-day period to
allow union employees the chance to apply).) In fact, he admits
to the possibility that it could have been posted, and he simply
neglected to check the bulletin board where it would have been
located. (Belvin Tr. at 287:7-8.) In addition, the record suggests
that even if Mr. Belvin had been aware of the position, he would
not have applied. For instance, at his deposition, Mr. Belvin tes-
tified that when a manager indicated to him that he would make
a good supervisor, he responded that he would not be interested
in such a position if it meant working more closely with either
Mr. Prezioso or Mr. Caiozzo. (Id. at 283:2-18; see also id. at
289:22-25 (“Q: If someone walked in tomorrow and offered you
a supervisor position would you take it? A: Not with that man-
agement.”).) Accordingly, EML is entitled to summary judgment
on this claim.
b. Mr. Mayers
Mr. Mayers likewise argues that EML discriminated against him
by failing to promote him. It is not entirely clear from the record
which position Mr. Mayers argues EML failed to promote him to,
as Mr. Mayers mentions other employees promoted to positions
such as foreman, manager, and general manager. Regardless,
Mr. Mayers fails to establish a prima facie case of discrimination
because he provides no evidence regarding the qualification cri-
teria for the positions he sought and no evidence, beyond his own
testimony, that he was qualified for any of those positions. Ac-
cordingly, EML is entitled to summary judgment on this claim.
D. Retaliation
Plaintiffs also assert claims for retaliation under Title VII, § 1981,
NYSHRL, and NYCHRL. Like disparate treatment discrimination
claims, claims for retaliation are analyzed under the McDonnell
Douglas burden-shifting framework. See, e.g., Edwards v. Jericho
Union Free Sch. Dist., 55 F. Supp. 3d 458, 467-70 (E.D.N.Y.
2014); Moccio v. Cornell Univ., 889 F. Supp. 2d 539, 592
(S.D.N.Y. 2012). To establish a prima facie case of retaliation un-
der Title VII, § 1981, and NYSHRL, each Plaintiff must prove: (1)
that he engaged in protected activity, (2) that his employer was
aware of this activity, and (3) that his employer took adverse ac-
tion against him as a result of the activity. See, e.g., Cifra v. Gen.
Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001); Whyte v. Nassau
Health Care Corp., 969 F. Supp. 2d 248, 259 (E.D.N.Y. 2013). “A
causal connection in retaliation claims can be shown either: (1)
indirectly, by showing that the protected activity was followed
closely by discriminatory treatment . . . or (2) directly, through
evidence of retaliatory animus directed against the plaintiff by
the defendant.” Natofsky v. City of New York, 921 F.3d 337, 353
(2d Cir. 2019). The standard under the NYCHRL is similar, ex-
cept that a plaintiff need only establish that the employer took
action “reasonably likely to deter a person from engaging in pro-
tected activity.” Rozenfeld v. Dep’t of Design & Const., 875 F. Supp.
2d 189, 208 (E.D.N.Y. 2012).
1. Mr. Belvin
Mr. Belvin claims that EML retaliated against him after he filed
his EEOC complaint on May 21, 2015 by subjecting him to a se-
ries of frivolous disciplinary actions. By filing a complaint with
the EEOC, Mr. Belvin was engaged in a protected activity, and
EML does not dispute it was aware of the complaint. (See Def.
56.1 ¶¶ 56-65; Mundo Tr. (Dkt. 44-3) at ECF p. 2, 33:9-34:12.)
Accordingly, the only question is whether EML engaged in an ad-
verse employment action as a result of Mr. Belvin filing the EEOC
complaint.
Mr. Belvin has adduced sufficient evidence from which a reason-
able juror could conclude that EML took adverse action against
him as a result of his EEOC complaint. First, the record reflects
evidence that EML exhibited direct retaliatory animus against
Mr. Belvin for filing his EEOC complaint. Mr. Belvin testified that,
at some point after filing his complaint, Mr. Mundo, EML’s gen-
eral counsel, told him that his “stack of write ups” would “go
away” if Mr. Belvin agreed to drop the EEOC complaint. (Belvin
Tr. at 246:14-247:14.) If proven, this would establish a direct
causal relationship between the write-ups and Mr. Belvin’s pro-
tected activity in filing the EEOC complaint, especially given that
Mr. Belvin amassed numerous “write-ups” for infractions after
filing (and not withdrawing) his EEOC complaint. The alleged
comments by Mr. Mundo suggest that Mr. Belvin’s disciplinary
record was at least partially responsive to his EEOC complaint.
EML fails to rebut Mr. Belvin’s claim that Mr. Mundo told him the
disciplinary actions would stop if he agreed to drop his EEOC
complaint. Rather than providing a non-retaliatory explanation
for such comments, EML merely offers a blanket denial that Mr.
Belvin’s deposition testimony is enough to create a genuine issue
of fact. (Def. 56.1 ¶ 56; Def. Reply ¶ 56.) As already discussed,
EML’s contention that deposition testimony is not enough to cre-
ate a fact issue to overcome summary judgment is meritless here
where Mr. Belvin’s testimony cannot be characterized as “contra-
dictory or incomplete” on this issue. Rivera, 743 F.3d at 20.
Rather, Mr. Belvin’s testimony that Mr. Mundo told him to drop
the complaint in exchange for a clean disciplinary record is con-
sistent with Mr. Belvin’s amended EEOC complaint, which he
filed in July of 2015 to include a claim of retaliation.
In addition to this direct evidence of a retaliatory nexus, Mr. Bel-
vin also adduces indirect evidence that EML subjected him to
retaliation in the form of frivolous disciplinary actions shortly af-
ter he filed his EEOC complaint in May 2015. For example, EML
suspended Mr. Belvin for three days on July 13, 2015 for throw-
ing a bag of garbage and giving Mr. Caiozzo and Mr. Prezioso
“an aggressive look and using an aggressive tone . . . .” (Def. 56.1
¶ 58.) Mr. Belvin requested arbitration of the suspension and the
arbitrator ruled in his favor, finding the conduct did not warrant
a suspension. (Def. 56.1 ¶ 59; Feb. 13, 2017 Arbitration Opinion
& Award (Dkt. 44-3) at ECF p. 1,512.) A month later, EML sus-
pended Mr. Belvin for a day for alerting a superior over the radio
to the presence of asbestos in his work area, even though, in April
2016, Mr. Belvin had received a written warning for failing to
notify management of the presence of asbestos. (Def. 56.1 ¶ 19;
Aug. 16, 2016 Suspension Letter (Dkt. 44-3) at ECF p. 1,451;
Apr. 7, 2016 Written Warning (Dkt. 44-3) at ECF p. 1,449.) Mr.
Belvin also contested this suspension, and it was converted to a
final warning letter. (Def. 56.1 ¶ 19; Aug. 26, 2016 Stipulation
of Settlement (Dkt. 44-3) at ECF p. 1,453.) The close proximity
in time between Mr. Belvin’s EEOC complaint and these suspen-
sions further support an inference of retaliation. Accordingly, Mr.
Belvin has succeeded in establishing a prima facie case.
EML argues that the disciplinary actions taken against Mr. Belvin
do not constitute adverse actions causally connected to his EEOC
complaint because he had been subject to a “series of disciplinary
issues throughout his employment tenure.” (Def. 56.1 ¶ 13.)
However, EML only points to one instance of discipline that oc-
curred before Mr. Belvin filed his EEOC complaint — a written
warning EML issued on February 26, 2015 “for wearing a non-
EML-issued jacket and wearing a cell-phone earpiece while work-
ing.” (Def. 56.1 ¶ 14.) The vast majority of disciplinary actions
EML cites occurred after Mr. Belvin filed his EEOC complaint.
(Def. 56.1 ¶¶ 15-20, 22-26.) EML has therefore failed to rebut
Mr. Belvin’s prima facie case of retaliation. Accordingly, because
a genuine issue of fact exists as to whether Defendant retaliated
against Mr. Belvin, summary judgment is inappropriate on Mr.
Belvin’s retaliation claims under Title VII, § 1981, NYSHRL, and
NYCHRL.
2. Mr. Mayers
Mr. Mayers argues that EML retaliated against him: (1) through
a campaign of retaliation in response to various grievances he
filed between 2013 and 2017 and (2) by firing him two months
after he filed his EEOC complaint.
a. Grievances
Regarding the first claim, Mr. Mayers has failed to adduce evi-
dence of retaliation based on his grievances sufficient to
withstand summary judgment. Mr. Mayers asserts that in re-
sponse to a grievance he filed in 2013 alleging discrimination and
harassment, he was not provided sufficient help in putting up
Christmas decorations. (Mayers Tr. at 176:20-178:16.) He also
asserts that sometime in 2014 he was suspended for using inap-
propriate language with Mr. Belvin at a staff meeting. (Id. at
179:3-181:21.) He contested this suspension, leading him to file
another grievance; EML then reinstated the lost day of pay. (Id.)
Even if Mr. Mayers were able to establish that filing these griev-
ances constituted protected activity in satisfaction of the first
prong of the prima facie case of retaliation, he has failed to show
he suffered an adverse employment action as a result of either
grievance. After his first grievance, Mr. Mayers alleges his work
became more difficult, but the only example he points to is the
issue with the Christmas decorations—a problem he shared with
all the porters in his housing unit, even though he was the only
one to file a grievance. (Id. at 176:22-178:8.) He also admits the
problem was rectified after he complained about the lack of as-
sistance. His second grievance was filed in response to being
suspended for using inappropriate language at work, and he ad-
mits he did not experience any retaliation as a result of this
grievance before he went out on sick leave. (Id. at 183:4-8.)
Therefore, Mr. Mayers has failed to establish a prima facie case
of retaliation based on the grievances.
b. Termination
Mr. Mayers also claims EML retaliated against him by terminat-
ing him two months after he filed an EEOC complaint, even
though he was subsequently reinstated. Mr. Mayers began his
leave of absence on July 4, 2014. (Def. 56.1 ¶ 96.) While still out
on sick leave, Mr. Mayers filed his EEOC complaint on May 18,
2015. Two months later, on July 24, 2015, EML sent him a letter
of termination, citing the CBA policy that requires EML to hold a
union employee’s position open for at least 12 months. (Def. 56.1
¶ 96; Termination Letter (Dkt. 44-3) at ECF p. 1,530.) Because,
by EML’s calculation, Mr. Mayers had been out on leave for over
12 months at that point, EML believed it was within its rights to
terminate his employment. (Termination Letter (Dkt. 44-3) at
ECF p. 1,530.) However, EML reinstated Mr. Mayers after he was
able to show EML had miscalculated the duration of his absence;
because he had used vacation time for part of his leave, he had
not been out for 12 months when EML sent the termination let-
ter. Confronted with its mistake, EML reinstated Mr. Mayers on
August 17, 2015.5 (Def. 56.1 ¶ 97.)
Mr. Mayers has succeeded in establishing a prima facie case of
retaliation based on his EEOC complaint and subsequent termi-
nation, notwithstanding EML’s reinstatement of Mr. Mayers after
he pointed out its mistake. The Second Circuit has held “that the
notice of termination itself constitutes an adverse employment
action, even when the employer later rescinds the termination.”
5 Once he returned to work, Mr. Mayers apparently applied for disability
benefits. Mr. Mayers recounted a conversation with Mr. Wiley in which Mr.
Wiley arguably discouraged Mr. Mayers from applying for disability bene-
fits, though Mr. Mayers stated in his deposition testimony that he was
confused by the comment and believed that Mr. Wiley did not know what
he was talking about. Although Plaintiff’s 56.1 cites this as evidence of pos-
sible retaliatory motive in response to the EEOC complaint (Pl. 56.1 ¶ 169;
Pl. Mem. at ECF p. 17), such an allegation is clearly a misconstruction of
Mr. Mayers’s testimony. Therefore, the court disregards this allegation.
Shultz v. Congregation Shearith Isr. of N.Y., 867 F.3d 298, 305–06
(2d Cir. 2017). Therefore, the only issue to determine for pur-
poses of the prima facie case is whether there is a retaliatory
nexus between the protected activity and the termination. Here,
Mr. Mayers filed his initial EEOC complaint on May 18, 2015,
and he was terminated about two months later, on July 24. Such
close temporal proximity is sufficient to show a retaliatory nexus.
See Gorman-Bakos v. Cornell Co-op Extension of Schenectady, 252
F.3d 545, 555 (finding a time lapse of four months would be
“sufficient to support an allegation of a causal connection strong
enough to survive a summary judgment motion”). Based on these
facts Mr. Mayers has established a prima facie case of retaliation.
However, EML has met its burden to rebut Mr. Mayers’s prima
facie case. As explained above, EML inadvertently terminated
Mr. Mayers due to a miscalculation of the duration of his ab-
sence; upon realizing the error, EML reinstated Mr. Mayers
immediately. Mr. Mayers fails to adduce evidence to suggest that
this reason is actually pretext for a discriminatory motive. In-
stead, he provides only anecdotal, hearsay testimony about other
employees who were not terminated after being out on leave for
over a year. (Mayers Tr. at 171:7-18.) Accordingly, EML is enti-
tled to summary judgment on Mr. Mayers’s retaliation claim
under federal and state law. EML is likewise entitled to summary
judgment on Mr. Mayers’s NYCHRL claim for the same reason;
despite the lower burden for establishing retaliation under the
NYCHRL, Mr. Mayers’s has not produced evidence to suggest the
EML’s mistaken termination, followed by his immediate rein-
statement, “reasonably could be construed as likely to deter a
person from engaging in protected activity.” Rozenfeld, 875 F.
Supp. 2d at 208.
E. Disability Discrimination & Retaliation6
Mr. Mayers asserts claims of discrimination and retaliation under
the ADA and NYCHRL. The ADA prohibits discrimination
“against a qualified individual on the basis of disability in regard
to . . . discharge of employees, employee compensation . . . and
other terms, conditions, and privileges of employment.” 42
U.S.C. § 12112(a). Discrimination under the ADA includes “not
making reasonable accommodations to the known physi-
cal . . . limitations of an otherwise qualified individual with a
disability who is an . . . employee, unless such covered entity can
demonstrate that the accommodation would impose an undue
hardship on the operation of the business of such covered entity.”
42 U.S.C. § 12112(b)(5)(A).
Claims under the ADA are analyzed under the burden-shifting
framework of McDonnell Douglas. See Davis, 804 F.3d at 235;
Kho, 344 F. Supp. 3d at 721. A plaintiff establishes a prima facie
claim of discrimination under the ADA if: “(1) the employer is
subject to the ADA; (2) the plaintiff is disabled within the mean-
ing of the ADA or perceived to be so by her employer; (3) she
was otherwise qualified to perform the essential functions of the
job with or without reasonable accommodation; (4) she suffered
an adverse employment action; and (5) the adverse action was
imposed because of her disability.” Davis v. N.Y.C. Dep't of Educ.,
6 The court notes that Mr. Mayers also attempted to bring a claim for age
discrimination, however he never asserts this claim under the Age Discrim-
ination in Employment Act. Notwithstanding this deficiency in the
pleadings, he also fails to allege facts that would support such a claim. Alt-
hough he asserts Mr. Wiley referred to his age on a few occasions implying
he should exercise his right to retire, he does not actually allege that he
suffered an adverse employment action in connection with these com-
ments. (Pl. 56.1 ¶¶ 151-53.) Therefore, even if Mr. Mayers had properly
brought a claim for age discrimination, he would have failed to establish a
prima facie case.
804 F.3d 231, 235 (2d Cir. 2015). Similarly for a failure to ac-
commodate claim, the plaintiff must show: “(1) she has a
disability; (2) the defendant had notice of the disability; (3) she
could perform the essential functions of the job with reasonable
accommodation; and (4) the defendant refused to make such ac-
commodations.” Kho v. N.Y. & Presbyterian Hosp., 344 F. Supp.
3d 705, 721 (S.D.N.Y. 2018). The elements for establishing a
prima facie case of retaliation under the ADA are the same as
under Title VII. See Weixel v. Board of Educ., 287 F.3d 138, 148
(2d Cir. 2002). Further, “seeking reasonable accommodation . .
. constitutes protected activity under” the ADA. Id. at 149.
The NYCHRL also prohibits employers from discriminating on
the basis of “actual or perceived . . . disability.” N.Y.C. Admin.
Code § 8-107(1)(a). The elements of a prima facie case of dis-
crimination under NYCHRL are coextensive with the ADA.
Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010). Like the
ADA, under NYCHRL an employer is required to “make reasona-
ble accommodation to enable a person with a disability to satisfy
the essential requisites of a job . . . provided that the disability is
known or should have been known by the employer.” Lazzari v.
N.Y.C. Dep't of Parks & Recreation, 751 F. App'x 100, 102 (2d Cir.
2018). However, unlike the ADA, the “NYCHRL places the bur-
den on the employer to demonstrate lack of a safe and reasonable
accommodation and to show undue hardship.” Id. Still, “[w]here
the record shows that a defendant has engaged in an interactive
process with an employee concerning a requested accommoda-
tion, summary judgment may—under appropriate
circumstances—be granted.” Elmessaoudi v. Mark 2 Rest. LLC, No.
14-cv-4560 (PGG), 2016 WL 4992582, at *8 (S.D.N.Y. Sept. 15,
2016). Such interactive processes “may involve meeting with the
employee who requests an accommodation, requesting infor-
mation about the condition and what limitations the employee
has, asking the employee what he or she specifically wants, show-
ing some sign of having considered the employee’s request, and
offering and discussing available alternatives when the request is
too burdensome.” Id. After establishing a prima facie case of dis-
crimination under NYCHRL, “the defendant then has the
opportunity to offer legitimate reasons for its actions. If the de-
fendant satisfies that burden, summary judgment is appropriate
if no reasonable jury could conclude either that the defendant’s
reasons were pretextual, or that the defendant’s stated reasons
were not its sole basis for taking action, and that its conduct was
based at least in part on discrimination.” Reed v. Nike, Inc., No.
17-cv-7575, 2019 WL 2327519, at *1 (S.D.N.Y. May 31, 2019).
1. Discrimination
Mr. Mayers asserts EML discriminated against him by terminat-
ing him while on sick leave, failing to accommodate his cancer
treatment upon his return to work, and denying him his bonus in
2014 while he was out on leave. EML does not dispute that it is
subject to the terms of the ADA, that Mr. Mayers is disabled due
to his cancer diagnosis, or that he was qualified to perform the
functions of his job as a porter. Therefore, the analysis of his
prima facie case of disability discrimination turns on the final el-
ements, i.e., whether he suffered an adverse employment action
and, if so, whether the adverse action was due to his disability.
a. Termination
Mr. Mayers has adduced evidence sufficient to overcome sum-
mary judgment on his termination claim. As already stated,
temporary termination may constitute an adverse employment
action in the Second Circuit. Shultz, 867 F.3d at 305-06. There-
fore, the only issue to address regarding this claim is whether
EML terminated him because of his disability. Mr. Mayers does
not assert that anyone at EML told him he was being fired be-
cause of his disability. However, EML admits that it terminated
him in accordance with the CBA because of his absence, which
was a direct result of his cancer treatment. In McMillan v. City of
New York, 711 F.3d 120 (2d Cir. 2013), the Second Circuit found
the McDonnell Douglas framework to be of little use where “the
parties agree that the employer complains of conduct that is the
direct result of the employee’s disability” because “there is no
need to evaluate whether the employer’s adverse employment
action made in response to that conduct is pretextual.” Id. at 129.
In that case, the court concluded the plaintiff “need only demon-
strate that, with reasonable accommodations, he could have
performed the essential functions of his job.” Id. Mr. Mayers has
established that he was able to perform the essential functions of
his job with accommodations, which is why EML agreed to rein-
state him once they received word from his doctors he was
cleared to return to work. Although the short period of time be-
tween Mr. Mayers’s termination and reinstatement may serve to
limit damages, this has no bearing on the prima facie case. Fur-
ther, because under McMillan there is no need to assess whether
EML’s proffered reasons for termination were pretextual, the
court does not proceed with the burden-shifting analysis on this
claim. Accordingly, summary judgment is denied regarding this
aspect of his disability discrimination claim, under both the ADA
and the NYCHRL.
b. Failure to accommodate
Mr. Mayers has failed to adduce evidence sufficient to allow a
reasonable juror to conclude EML failed to accommodate his dis-
ability. Mr. Mayers has met the first three elements of a failure to
accommodate claim—i.e., he has a disability, EML knew about
the disability, and the parties agreed he was able to perform the
essential functions of the job with reasonable accommodation.
Therefore the only issue to resolve is whether EML refused to ac-
commodate him. Upon returning to work, Mr. Mayers requested
a schedule change that would allow him to work weekends so he
could continue to attend cancer treatments periodically during
the week. Mr. Mayers himself admits that his request for a sched-
ule change was honored and he was accordingly able to attend
his cancer treatments during the week. Rather than alleging EML
denied his request outright, Mr. Mayers asserts that the manner
in which EML engaged in the interactive process was unsatisfac-
tory because in order to accommodate his requested schedule,
EML shared information about Mr. Mayers’s diagnosis with other
employees who would have to change their schedules as part of
the accommodation.
That allegation is insufficient to maintain a failure to accommo-
date claim. Indeed, the ADA states that a “‘reasonable
accommodation’ may include . . . job restructuring” or “part-time
or modified work schedules.” 42 U.S.C. § 12111(9). In order to
accommodate Mr. Mayers’s requested modified schedule, EML
had to switch his schedule with other porters’ existing schedules.
(Sept. 10, 2015 Accomm. Req. Memo (Dkt. 46-1) at ECF p. 5.)
Accordingly, Mr. Mayers has failed to establish a prima facie case
of failure to accommodate under the ADA. Mr. Mayers’s claim
also fails under the NYCHRL; even with the burden on EML to
show undue hardship in denying an accommodation request,
Lazzari, 751 F. App’x at 102, EML’s burden is easily satisfied
given these facts, especially considering it did honor his accom-
modation request. EML is accordingly entitled to summary
judgment on the failure to accommodate claim under the ADA
and NYCHRL.
c. Denial of bonus
Mr. Mayers has adduced sufficient evidence from which a juror
could reasonably conclude EML discriminated against him by
withholding his bonus in 2014. Denial of a bonus is an adverse
employment action. See, e.g., Terry, 336 F.3d at 138. Therefore,
the only issue to address is whether EML denied Mr. Mayers the
bonus because of his disability. Mr. Mayers asserts he was denied
his bonus while out on sick leave in December 2014.7 During his
7 The court notes that in his deposition testimony, Mr. Mayers claims he
was denied his bonus as an act of retaliation for filing his EEOC complaint.
deposition, he clarified that the bonus porters generally receive
is essentially a tip contributed by the tenants in the building.
(Mayers Tr. at 191:17-192:3.) EML collects these tips and distrib-
utes them to the porters during the holidays. Because Mr. Mayers
was on leave in December 2014, Mr. Belvin went to retrieve Mr.
Mayers’s bonus for him. However, when Mr. Belvin asked Mr.
Wiley about Mr. Mayers’s bonus, Mr. Wiley reportedly responded
that management had told him that Mr. Mayers would not be
getting a bonus that year.8 (Id. at 193:9-13.) While Mr. Mayers
does not claim that anyone from management told him he was
being denied a bonus because of his disability, a reasonable juror
could, given the circumstances, infer that management did not
want to give him his share of the Christmas tips because he was
absent for part of the year—an absence caused by his disability.
See, e.g., McMillan, 711 F.3d at 129 (finding the plaintiff “was
tardy because of his disability and that he was disciplined be-
cause of his tardiness. In other words, McMillan was disciplined
because of his disability”). Mr. Mayers accordingly succeeds in
stating a prima facie case of disability discrimination on this ba-
sis, which EML fails to rebut. While EML notes that Mr. Mayers
received a prorated bonus in 2015, it does not deny that it failed
to award Mr. Mayers a 2014 bonus. Accordingly, Mr. Mayers’s
claim for disability discrimination based on the denial of his 2014
Christmas bonus may proceed to trial under both the ADA and
NYCHRL.
However, he was denied the bonus in December 2014, several months be-
fore he filed the EEOC complaint in 2015. In an effort to construe the facts
in the light most favorable to Mr. Mayers, the court will therefore assess
this allegation as part of his disability discrimination claim.
8 The record is admittedly confusing on this point; at various points Mr.
Mayers states he was denied a bonus in 2015, but during his deposition he
clarified that he was denied the bonus while he was out on sick leave in
2014.
2. Retaliation
Mr. Mayers has failed to adduce evidence from which a reasona-
ble fact finder could conclude that EML retaliated against him in
violation of the ADA or NYCHRL. While the record is not entirely
clear, the court construes Mr. Mayers as arguing that EML retal-
iated against him as a result of his request for a reasonable
accommodation. (Pl. Mem. at 13-14.) In support of this claim, he
points to two documents in the record: a cease-and-desist letter
from his union to EML, and a letter written by Mr. Mayers himself
alleging harassment and retaliation. (Feb. 27, 2018 32BJ Cease
& Desist Letter (“32BJ Letter”) (Dkt. 46-1) at 13; Dec. 21, 2017
Mayers Letter (Dkt. 46-1) at 14.) The 32BJ letter fails to describe
with any level of specificity what exactly this harassment en-
tailed, and Mr. Mayers does not offer an explanation (let alone
evidence) on how this vague claim of harassment is tied to disa-
bility retaliation. The letter Mr. Mayers wrote describes the
written complaints of his co-workers, and asserts EML solicited
such written complaints in retaliation for his filing a grievance
and the EEOC complaint, but again fails to establish any connec-
tion to his disability status or accommodation request. As a result,
Mr. Mayers has failed to allege any facts on which to base such a
retaliation claim under either the ADA or NYCHRL, and summary
judgment is therefore granted in favor of EML.
F. Emotional Distress Damages
EML finally moves to prevent Mr. Belvin from seeking garden va-
riety emotional distress damages stemming from his
discrimination claims. When counsel for EML asked Mr. Belvin
during his deposition whether he was seeking emotional distress
damages, he responded in the negative. (Def. 56.1 ¶ 66.) How-
ever, he subsequently clarified in an affidavit that he had been
under the mistaken impression that he could only seek emotional
distress damages with the support of an expert medical witness.
(Belvin Aff. ¶ 7.) Because Mr. Belvin is only seeking garden vari-
ety emotional distress damages, meaning that “the evidence of
mental suffering is generally limited to the testimony of the plain-
tiff, who describes his or her injury in vague or conclusory terms,
without relating either the severity or consequences of the in-
jury,” Thorsen v. Cnty. of Nassau, 722 F. Supp. 2d 277, 292
(E.D.N.Y. 2010), he argues he should be permitted to seek such
damages notwithstanding his deposition testimony.
EML’s argument that a plaintiff is generally not permitted to
change his deposition testimony via declaration after the fact is
well taken. Nonetheless the circumstances here are meaningfully
distinct from a case in which factual allegations made during a
deposition are contravened by a subsequent affidavit. See, e.g.,
Brown v. Henderson, 257 F.3d 246, 256 (2d Cir. 2001) (affirming
summary judgment where the plaintiff attempted to “rescue her
claim with a last-minute conversion to the position that, instead
of what she had consistently said before, she faced adverse con-
ditions because she is a woman”). Here, Mr. Belvin is seeking
garden variety emotional distress damages, which means he will
be limited to his own assertions about how the alleged discrimi-
nation affected him. See Abel v. Town Sports Int’l, LLC, No. 09-cv-
10388 (DF), 2012 WL 6720919, at *16 (S.D.N.Y. Dec. 18, 2012)
(“In cases involving garden-variety emotional distress, damages
awards are based primarily on the plaintiffs’ description of men-
tal anguish in somewhat general terms, there is little or no
evidence of medical treatment, and there is little detail of the du-
ration, severity, or consequences of the condition.”). To prove
such damages, he will rely on the same facts he alleges in support
of his discrimination claims. Therefore, the court does not find
(and EML does not claim that) allowing his claim for emotional
distress damages would prejudice EML. Accordingly, because Mr.
Belvin will be limited to relying on the same facts alleged in sup-
port of his discrimination claim, he is permitted to seek garden
variety emotional distress damages notwithstanding his dis-
claimer of such damages in his deposition testimony. However,
Mr. Belvin should be aware that he will be limited at trial to tes-
tifying to his own description of his emotional distress, and will
not be permitted to “offer evidence regarding any mental or emo-
tional disorders, severe emotional distress, or anything beyond
the so-called ‘garden variety’ emotional distress that might result
from discrimination.” MacCluskey v. Univ. of Conn. Health Ctr.,
No. 13-cv-01408 (MPS), 2014 WL 7404565, at *2 (D. Conn. Oct.
20, 2014).
CONCLUSION
For the foregoing reasons, Defendant’s (Dkt. 44) motion for sum-
mary judgment is granted in part and denied in part. The parties
are directed to contact the chambers of Magistrate Judge Peggy
Kuo to discuss next steps in this case.
SO ORDERED.
Dated: Brooklyn, New York
December 10, 2020
_/s/ Nicholas G. Garaufis_
NICHOLAS G. GARAUFIS
United States District Judge