Achee v. Incorporated Village of Valley Stream

EASTERN DISTRICT OF NEW YORK

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JAHBAREE J. ACHEE,

Plaintiff, OPINION & ORDER

-against-

20-cv-5294 (NG) (LGD)

INCORPORATED VILLAGE OF VALLEY

STREAM, VILLAGE OF VALLEY

STREAM PARKS AND RECREATION

DEPARTMENT, FRANK TORRES, AND

LORRAINE WERBECK,

Defendants.

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GERSHON, United States District Judge:

Plaintiff Jahbaree Achee sues the Incorporated Village of Valley Stream, the Village of

Valley Stream Parks and Recreation Department, Frank Torres, and Lorraine Werbeck

(“Defendants”) for hostile work environment, retaliation, and discrimination in violation of Title

VII; 42 U.S.C. § 1981; and the New York State Human Rights Law (“NYSHRL”), New York

Executive Law §§ 296, et seq. Defendants seek summary judgment on all claims. For the reasons

set forth below, Defendants’ motion is denied in its entirety.

I. Facts

The record reveals numerous areas of dispute which are identified below.

A. Mr. Achee’s Employment and the Discriminatory Statements He Experienced

Mr. Jahbaree Achee identifies as a Jewish African American male. In June of 2014, Mr.

Achee began working for the Village of Valley Stream (the “Village”) as a seasonal laborer in the

Parks Department. Throughout his employment with the Village, Mr. Achee had two supervisors,

Frank Torres and Lorraine Werbeck. As part of their duties as supervisors, Mr. Torres and Ms.

Werbeck would assign crews of workers to Parks Department projects and would periodically visit

job sites to monitor their progress. It is undisputed that, as supervisors, Mr. Torres and Ms.

Werbeck had input into employee discipline, though they did not have the ultimate authority to

terminate employees.1

1. Statements by Coworker Ronald Rivosecchi

On Mr. Achee’s first day of work, one of his coworkers informed Mr. Achee that another

coworker, Ronald Rivosecchi, had called Mr. Achee a “n****r.” Achee Dec. ¶9.2 In a separate

incident approximately two weeks later, Mr. Rivosecchi approached Mr. Achee and “yelled

multiple racial slurs at [him], including ‘stinking n****r.’” Id. ¶12. After this incident, Mr.

Rivosecchi continued to make racially discriminatory comments, telling Mr. Achee that “n****rs

cannot perform the job” and questioning him about why he was working for Valley Stream. Id.

¶15.

On September 26, 2014, Mr. Achee wrote a letter to the Village requesting to change roles

from a seasonal to a part-time worker. Mr. Achee wrote that he “would love to stay and work[s]

well with others.” In another letter Mr. Achee sent to the Village in July of 2015, Mr. Achee wrote

that he had learned “so much about parks from [his] supervisors” Ms. Werbeck and Mr. Torres

and reiterated his request to transition to a part-time worker. This request was ultimately granted.

1 Mr. Achee argues that Peter Savellichi, his crew chief, was also his supervisor, but Plaintiff has

not adduced sufficient evidence to show that Mr. Savellichi had the required authority to “effect

a significant change in employment status” to be considered a supervisor. See Vance v. Ball

State University, 570 U.S. 421, 431 (2013). Indeed, the Supreme Court has held that “[t]he

ability to direct another employee’s tasks is simply not sufficient” to make one a supervisor. Id.

at 439.

2 The record includes both deposition testimony of Mr. Achee and a later Declaration. Because

Defendants have not put forth any reason that Mr. Achee’s Declaration should be disregarded, I

will consider both on this motion. See Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (“a

material issue of fact may be revealed by [an opposing party’s] subsequent sworn testimony that

amplifies or explains, but does not merely contradict, his prior testimony.”).

Mr. Achee states that, after his transition to a part-time worker, Mr. Rivosecchi continued

to make racially charged statements to him. Mr. Achee further states that, in 2016, these comments

escalated to threats against Mr. Achee and that Mr. Rivosecchi said “Hang that n****r in the creek

bed” in reference to Mr. Achee in front of other coworkers. Achee Dec. ¶16. In total, Mr. Achee

estimates that Mr. Rivosecchi used the word “n****r” more than ten times over the course of the

five years that Mr. Achee was employed by the Parks Department. Id. ¶17.

2. Statements by Coworker Robert Inzerillo

Mr. Achee also states that his coworkers made antisemitic remarks to him. Specifically,

Mr. Achee states in his Declaration that a coworker named Robert Inzerillo told him in 2016 that

“black jews don’t matter, blue lives matter” and also made “derogatory comments” about his faith.

Id. ¶19. Mr. Achee also states that members of his crew knew of his Jewish faith and would make

“numerous hateful and humiliating Anti-Jewish comments and jokes” towards him. Id. ¶20.

Though Mr. Achee asserts that knowledge of his Jewish faith was well-known among his

coworkers and supervisors, several Village employees, including Mr. Achee’s Human Resources

Director Alison Walsh, who also identifies as Jewish, and the Village Clerk James Hunter denied

learning that Mr. Achee was Jewish until the filing of the Complaint in this matter.

3. Statements by Coworker Frank Caracciolo

In the summer of 2018, Mr. Achee states, another coworker named Frank Caracciolo made

discriminatory statements towards him: Caracciolo showed Mr. Achee a picture of a noose on his

phone, told him that “white people stick together” and stated that his “co-workers were going to

hang” Mr. Achee. Id. ¶21. Mr. Achee states that, after this incident, his coworkers began regularly

making comments that they would hang him. Id. ¶23. The following year, in the summer of 2019,

according to Mr. Achee, Caracciolo again showed him a noose on his phone and told him that

“white employees ‘hang n***as in the creek bed.’” Id. ¶24.

The extent to which Mr. Achee was upset by these comments is disputed. At Mr. Achee’s

deposition, he initially stated that he didn’t “really care” about Mr. Rivosecchi’s use of racial slurs,

but then clarified that he was offended by the comments and would not let his coworkers get the

best of him. Achee Dep. 35:15–36:11. He further states that, as a result of “the repeated remarks

and discrimination” he experienced while working at the Village, his mental health deteriorated

and he suffered symptoms of depression. Achee Dec. ¶30.

4. Mr. Achee’s Complaints to Supervisors

The Village has a written complaint process for its employees. Mr. Achee attended several

training sessions that outlined this process, which is also set forth in the Village’s Policy Against

Discrimination and Harassment, which was provided to Mr. Achee. According to this process, a

complainant is instructed to “contact his or her supervisor or a Harassment Committee Member

listed in section 10 of this Policy, or Village Clerk, or Human Resources official,” and that “if the

complainant feels uncomfortable reporting the harassment to his/her supervisor, s/he should

immediately report the matter to any other member of management.” It is undisputed that there is

no requirement that a complaint to a supervisor be made in writing. Oral Argument Tr. 6:11–22

(Sept. 15, 2023). The parties also agree that Mr. Achee did not complain to Human Resources at

any point.

However, the extent to which Mr. Achee complained to his supervisors about his

coworkers’ comments is disputed. Mr. Achee provides several specific accounts of complaints

made to his supervisors. With respect to Mr. Rivosecchi, Mr. Achee’s Declaration states that Mr.

Achee complained to Mr. Torres, as well as to his crew chief Peter Savellichi,3 that Mr. Rivosecchi

had made “a racial comment towards” him on his first day, but that nothing resulted from his

reporting the incident. Achee Dec. ¶¶10–11. Mr. Achee stated in his deposition that he told Mr.

Torres that Mr. Rivosecchi “was saying a lot of racial slurs” and was making him “feel

uncomfortable,” and, in response, Mr. Torres told him not to mind Mr. Rivosecchi and “just

shrugged it off and walked away.” Achee Dep. 33:18–22. Mr. Achee also states that he spoke with

both Mr. Torres and Ms. Werbeck about the second incident with Mr. Rivosecchi and that they

told him to “forget about what happened.” Achee Dec. ¶14. According to Mr. Achee, though his

supervisors “stopped putting [Mr. Achee]” with Mr. Rivosecchi after he complained, they took no

disciplinary action in response. Achee Dep. 19:3–5.

Ms. Werbeck and Mr. Torres present differing accounts of whether Mr. Achee ever

complained to them about Mr. Rivosecchi. Ms. Werbeck testified that Mr. Achee never

complained to her about Mr. Rivosecchi. Mr. Torres testified at his deposition that “[e]verybody”

would complain about Mr. Rivosecchi and that “nobody wanted to work with him” because he

“was a very hard worker” and “they thought he . . . made them work too much.” Torres Dep.

54:11–24. Mr. Torres also testified that Mr. Achee complained about working with Mr.

Rivosecchi “several times,” though he didn’t testify as to what those complaints were about. Id.

at 57:11–58:3. Mr. Torres could not recall whether Mr. Rivosecchi had ever been disciplined. Id.

Mr. Achee also states that he complained about Frank Caracciolo. In response to Mr.

Caracciolo’s repeated display of a noose on his phone and threats to hang him, Mr. Achee states

that, “[i]n August of 2019, as just one example of the times I complained, I complained to Mr.

3 Mr. Savellichi corroborated this account in his deposition, testifying that, in response to this

incident, Mr. Achee “went to Frank [Torres] and Frank said he was going to do something about

it.” Savellichi Dep. 21:17–25.

Torres and Ms. Werbeck that these kinds of comments were racist, but they ignored me and nothing

changed.” Achee Dec. ¶24.

In total, Mr. Achee testified that he complained to Mr. Torres about racially charged

remarks approximately five times over the course of his employment. In his Declaration, Mr.

Achee states that he “complained about a dozen times of race and religious discrimination to [his]

supervisors.” Achee Dec. ¶32. Mr. Achee states several times in his Declaration that he

complained directly to Ms. Werbeck. See, e.g., id. ¶¶13, 24. However, Mr. Achee testified at his

deposition that he “didn’t really complain” to Ms. Werbeck, but that she was frequently present

when he complained to Mr. Torres. Achee Dep. 42:14–23. Mr. Savellichi testified that Mr. Achee

complained to him roughly a dozen times that he was not being treated as well as others by his

supervisors because of his race and would frequently complain about being assigned to an area

called the creek bed, which was viewed as a less desirable assignment. However, Mr. Savellichi

also testified that, to his knowledge, he did not know of any times that Mr. Achee complained

about racist or antisemitic comments to his supervisors, or anyone at the Village. Savellichi Dep.

64:2–8.

In contrast, Defendants assert that Mr. Achee did not complain to his supervisors about

racial or religious discrimination at any point during his employment. Ms. Werbeck testified that

she could not recall an instance in which an employee made any complaint concerning

discriminatory remarks during her employment at the Parks Department. Though Mr. Torres

testified that Mr. Achee complained to him several times about Mr. Rivosecchi, he also testified

that Mr. Achee never complained to him of racial or religious discrimination.

B. Mr. Achee’s Disciplinary Record

During his employment, Mr. Achee received verbal and written warnings for disciplinary

infractions. Each warning was documented by an employee counseling form signed by one of his

supervisors. Though some of these forms were prepared with the assistance of Human Resources

representative Alison Walsh, Ms. Walsh testified that she did not initiate or effectuate employee

discipline. Mr. Achee claims that no other employees were disciplined for the same types of

offenses and that other employees were rarely disciplined at all. Mr. Savellichi testified that Ms.

Werbeck would come to the job site, “checking up” on Mr. Achee and “not checking up on anyone

else.” Id. at 17:16–24. When asked at his deposition if he ever observed any white employees

written up at work, Mr. Savellichi, who identifies as a white man, responded that “nobody gets

written up besides me and [Mr. Achee].” Id. at 45:7–11. Mr. Savellichi also testified that he

believed Ms. Werbeck selectively enforced rules regarding leaving early because she did not write

up other employees for leaving early for lunch. Id. at 35:10–12. However, he also testified that

Mr. Achee’s early departures were especially frequent and that his coworkers would have to do

more work as a result. Id. at 53:11–54:16.

Though Mr. Achee claims to dispute the factual bases for the following events identified

in his personnel file, he offers no contradictory evidence beyond the fact that he did not sign several

forms and instead wrote “Refuse to Sign” on several of them:

• Mr. Achee received an employee counseling form on July 24, 2018, for abusive time

off for leaving early on eight days in 2018.

• Mr. Achee received another employee counseling form on July 30, 2018, for failing to

appear for his scheduled shift for that day and for calling in late to inform his employer

that he would not be present.

• Mr. Achee received an employee counseling form for failing to report to work on April

26, 2019. Mr. Achee received a letter signed by then-Deputy Village Clerk, James

Hunter, informing him that he would be suspended for one day because he provided

contradictory accounts about his absence and was unable to corroborate that his

absence was due to a medical appointment. Mr. Hunter wrote that Mr. Achee’s

statements about his absence were “marked by inconsistencies, contradictions and

murky information” and that Mr. Achee was “urged to understand that continuing,

unprofessional and unacceptable behavior will result in escalating discipline, up to and

including termination.”

• Mr. Achee received a counseling form for insubordination on April 30, 2019. During

a meeting with Ms. Werbeck, Ms. Walsh, and Mr. Achee’s union representative, Jerry

Bevinetto, Mr. Achee excused himself to go to the restroom and did not return to the

meeting.

• Mr. Achee received another counseling form for failure to provide contact information,

including his address and phone number, on July 12, 2019.

In June of 2019, Mr. Hunter became Interim Village Clerk. At that time, he implemented

a new initiative to “stop tolerating rampant and repeat performance and attendance issues from the

Village’s employees,” and he “instructed the Village’s department heads and supervisors to stop

tolerating poor performance and attendance issues and to issue counseling forms to their

employees who exhibit these issues.” Hunter Dec. ¶7.

The parties offer conflicting accounts of the final disciplinary event before Mr. Achee’s

termination. Mr. Achee states that, on August 23, 2019, he went to his crew chief Mr. Savellichi

to “call out sick from work.” Achee Dec. ¶28. Because he did not have a mobile phone, Mr.

Achee asked Mr. Savellichi to call Mr. Torres and Ms. Werbeck for approval. Id. Mr. Achee also

asked Mr. Savellichi for a ride to the train station. Mr. Savellichi claims to have received

authorization to do so from Ms. Werbeck. Savellichi Dep. 18:17–25. At his deposition, he stated

that he called Ms. Werbeck and received permission, but that Ms. Werbeck then “changed the

story around,” claiming that she did not authorize Mr. Savellichi to take Mr. Achee to the train

station. Id. Two separate written warnings, dated September 6, 2019, issued to Mr. Achee and

signed by Ms. Werbeck, state that Mr. Achee left early without approval that day. One warning

states that Mr. Achee left on this date “without requesting permission to leave.” The other states

that Mr. Achee “has no authority to decide to leave work for the day. He cannot place that

responsibility to ask a supervisor for permission to leave early, on another employee as he did in

this case, and has done previously.” The report notes that he also left work early without approval

from a supervisor on two other dates that year and that Mr. Achee’s “poor attendance and regularly

leaving early are disruptive and hamper productivity of other employees.” Mr. Savellichi testified

that he himself was also disciplined for giving Mr. Achee a ride to the train station that day.

C. The September 6, 2019 Meeting

A counseling session was held on September 6, 2019 to discuss these incidents. Mr. Achee

met with the Interim Village Clerk, Mr. Hunter who, like Mr. Achee, identifies as a black man.

Ms. Werbeck, Ms. Walsh, and Mr. Achee’s union representative were also present. During this

meeting, the parties discussed Mr. Achee’s disciplinary record, and Mr. Achee was provided an

opportunity to be heard. Mr. Achee states that he told Mr. Hunter that he was given permission

by his supervisors to leave early from the train station.

The parties agree that Mr. Achee complained about discrimination during this meeting but

differ as to the exact details that he provided to Mr. Hunter. According to Mr. Hunter, Mr. Achee

complained that at least one individual who worked in the Parks Department had used the N-word

on at least one occasion. In his Declaration, Mr. Achee stated that he “explained again the

discrimination against [him] and how it affected both [his] mental and physical health.” Achee

Dec. ¶30. When asked at his deposition whether he also complained about threats of violence

towards him, Mr. Achee responded that he did, but did not provide additional details.

The parties also agree that Mr. Achee complained to Mr. Hunter about “being frequently

assigned to work in a particular area of the Village, known as the creek bed” and that he also

complained about the hygiene of another employee. Hunter Dec. ¶10. Mr. Hunter stated that he

viewed these complaints, as well as Mr. Achee’s complaints of discrimination, as “proffered

excuses” that were “manufactured as a way to avoid taking responsibility for his poor

performance.” Id. ¶12. Mr. Hunter also observed that, during this meeting, Mr. Achee exhibited

“anger, hostility and combativeness” towards Ms. Werbeck that Mr. Hunter found to be

“concerning.” Id. ¶13. Mr. Hunter initially determined that Mr. Achee would receive an eight-

day suspension for his disciplinary violations. After negotiations with Mr. Achee’s union

representative, Mr. Achee was advised that he would receive a four-day suspension, with the

possibility of further discipline pending review by Mr. Hunter.

D. Mr. Hunter’s Investigation and Mr. Achee’s Termination

Following the meeting, Mr. Hunter conducted a review of Mr. Achee’s personnel file, as

well as an investigation of Mr. Achee’s allegations of racism in the Parks Department. In his

Declaration, Mr. Hunter states that, to his knowledge, “this was the first discrimination complaint

ever raised by a Village employee.” Id. ¶19. Shortly after the September meeting, Mr. Hunter

spoke with his son, James T. Hunter, a part-time laborer in the Department, who did not report

experiencing discrimination. Id. ¶¶20–22. Mr. Hunter does not identify anyone else, including

Mr. Achee or Mr. Savellichi, to whom he spoke as part of his investigation.4

Based on his “review of Mr. Achee’s complete personnel file, Mr. Achee’s hostility

towards . . . Ms. Werbeck, and the lack of corroboration of Mr. Achee’s complaint of potential

racial discrimination,” Mr. Hunter made the decision to terminate Mr. Achee. Id. ¶24. Mr.

Hunter’s Declaration acknowledges that Mr. Achee “was the first such Village employee to be

held accountable for his actions pursuant” to the policy shift implemented by Mr. Hunter. Id. ¶7.

4 Mr. Savellichi testified that, at some point, he was called into a meeting with a Village lawyer

and asked about the train incident as well as an incident involving Mr. Rivosecchi making

discriminatory statements.

By letter dated September 19, 2019, Mr. Achee was informed of his termination effective

that date. This letter states that, “[i]n 2019 alone, multiple incidents of unacceptable conduct have

been documented. Write ups include the initiation of discipline for instances ranging from

insubordination, defiance of Village and departmental rules and leaving work without

authorization, among others.” The letter also cites “write ups for abusive absence from work” and

notes that several instances of “no call/no show are documented from 2018.” The letter concludes

that, because the review of Mr. Achee’s personnel file “yielded proof of an escalation of troubling

conduct, which has become more frequent and more flagrant,” Mr. Achee’s employment would

be terminated.

II. Standard of Review

A party is entitled to summary judgment only if “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see

Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The moving party bears the initial burden

of showing “the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. Once the

burden is met, the non-moving party “must set forth specific facts showing that there is a genuine

issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Only disputes relating

to material facts—i.e., “facts that might affect the outcome of the suit under the governing law”—

may preclude the entry of summary judgment. Id. An issue of fact is “‘genuine’ . . . if the evidence

is such that a reasonable jury could return a verdict for the nonmoving party.” Id. There must be

“sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id.

at 249. “If the evidence is merely colorable, or is not significantly probative, summary judgment

may be granted.” Id. at 249–50 (internal citations omitted).

In determining whether to grant summary judgment, the court must “construe the facts in

the light most favorable to the non-moving party and . . . resolve all ambiguities and draw all

reasonable inferences against the movant.” Delaney v. Bank of Am. Corp., 766 F.3d 163, 167 (2d

Cir. 2014). The Second Circuit “has repeatedly emphasized the need for caution about granting

summary judgment to an employer in a discrimination case where, as here, the merits turn on a

dispute as to the employer’s intent.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d

Cir. 2010) (internal quotation marks omitted). Nevertheless, summary judgment is appropriately

granted “if the evidence, viewed in the light most favorable to the party against whom it was

entered, demonstrates that there are no genuine issues of material fact, and that the judgment is

warranted as a matter of law.” Delaney, 766 F.3d at 167 (internal citations omitted).

III. Discussion

A. Hostile Work Environment Claims under Title VII, § 1981, and the NYSHRL

Title VII provides that it shall be unlawful for an employer “to discriminate against any

individual with respect to his compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-

2(a)(1). Hostile work environment claims under Title VII, § 1981, and the NYSHRL are assessed

under the same standard. Banks v. Gen. Motors, LLC, 81 F.4th 242, 262 (2d Cir. 2023). To survive

summary judgment on a hostile work environment claim, a plaintiff must show 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

environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotations and citations

omitted). As a general rule, “incidents must be more than episodic; they must be sufficiently

continuous and concerted in order to be deemed pervasive.” Alfano v. Costello, 294 F.3d 365, 374

(2d Cir. 2002). While isolated incidents of harassment ordinarily do not rise to this level, the

Second Circuit has recognized that “a single act can create a hostile work environment if it in fact

‘works a transformation of the plaintiff’s workplace.’” Banks, 81 F.4th at 262 (quoting Feingold

v. New York, 366 F.3d 138, 150 (2d Cir. 2004)). The test also has both objective and subjective

elements, the ultimate question being whether “a reasonable person would have found [the work

environment] to be [hostile], and if the plaintiff subjectively so perceived it.” Mormol v. Costco

Wholesale Corp., 364 F.3d 54, 58 (2d Cir. 2004).

Whether a reasonable person would find a given work environment to be hostile depends

on the totality of the circumstances, including “(1) the frequency of the conduct, (2) the severity

of the conduct, (3) whether the conduct is physically threatening or humiliating, or a mere

offensive utterance, and (4) whether the conduct unreasonably interferes with the employee’s work

performance.” Brennan v. Metro. Opera Ass'n, Inc., 192 F.3d 310, 319 (2d Cir. 1999) (citing

Harris, 510 U.S. at 23). Conduct that fails to meet the objective component of the test “is beyond

Title VII’s purview.” Harris, 510 U.S. at 21. A plaintiff must also show that there is a basis for

imputing the conduct that created the hostile environment to the employer. Serrano v. New York

State Dep't of Env't Conservation, 714 F. App’x 90, 91 (2d Cir. 2018). When harassment is

perpetrated by the plaintiff’s coworkers, an employer will be liable if the plaintiff demonstrates

that “the employer either provided no reasonable avenue for complaint or knew of the harassment

but did nothing about it.” Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997).

Based upon the record before me, Mr. Achee has set forth sufficient evidence of racial and

religious harassment such that a reasonable jury could find that the conditions of his employment

were altered and that the incidents he proffers created an abusive working environment. The

Second Circuit’s recent analysis in Banks is particularly instructive. In Banks, the plaintiff, who

identifies as an African American woman, experienced various forms of discrimination by her

coworkers, including racial slurs and repeated displays of racist symbols in her workplace. In

particular, the Court focused on plaintiff’s coworkers’ display of nooses near the workstations of

black employees in her workplace. Citing the history of the noose as a symbol of racial violence,

the Second Circuit concluded that, “[a] reasonable jury could find that even a single placement of

this object -- imbued as it is with historical gravity as a symbol and tool of actual violence --

directly at the workstation of a Black employee could amount to severe conduct sufficient to

support an inference that the workplace is hostile to Black employees.” Banks, 81 F.4th at 265.

The Court also recognized that “perhaps no single act can more quickly alter the conditions of

employment and create an abusive working environment than the use of an unambiguously racial

epithet such as ‘n****r.’” Id. at 266 (quoting Rivera v. Rochester Genesee Reg'l Transp. Auth.,

743 F.3d 11, 24 (2d Cir. 2014)).

Mr. Achee has therefore clearly met the objective standard for a hostile work environment.

Defendants’ argument that the racist statements made to Mr. Achee were not sufficiently frequent

is unavailing and ignores the increasing severity of the comments, which escalated into threats of

physical violence couched in racial terms. Under Banks, Mr. Caracciolo’s statement that his white

coworkers would assist in hanging Mr. Achee, combined with his showing Mr. Achee an image

of a noose is, on its own, sufficiently severe to cause a reasonable person to consider the Valley

Stream Parks Department a hostile work environment.

Mr. Achee has also met the subjective standard. Defendants’ argument that Mr. Achee was

not “offended” by his coworkers’ statements is not persuasive and mischaracterizes his testimony.

Though Plaintiff stated that he tried not to let these statements bother him, Plaintiff testified that

he nevertheless was offended by the racial slurs and that these threats caused mental anguish and

symptoms of depression. Achee Dep. 168:15–169:24. Defendants point to Mr. Achee’s letters

from 2014 stating that he enjoyed working in the Department as evidence to the contrary. But

these letters pre-date the most serious incidents by several years and do not eliminate the factual

issue that Mr. Achee’s testimony raises.

Having established that a jury could find that his coworkers’ behavior created an

objectively and subjectively hostile work environment, Plaintiff must establish a basis for imputing

this conduct to his employer. Plaintiff states that he complained to his supervisors on multiple

occasions, but that they ignored him. Specifically, Plaintiff states that, after Mr. Caracciolo

showed him a noose on his phone and threatened to hang him, he “complained to Mr. Torres and

Ms. Werbeck that these kinds of comments were racist, but they ignored me and nothing changed.”

Achee Dec. ¶24. Defendants deny that Plaintiff ever complained to his supervisors and argue that

these are “baseless assertions.” Reply at 10. But resolving these two accounts presents factual

questions for a jury. Viewing the record in the light most favorable to the non-moving party, as I

am required to do at this stage, such allegations are sufficient to impute the objectionable conduct

to Defendants. Feingold, 366 F.3d at 152. Defendants’ motion with respect to Plaintiff’s hostile

work environment claims is therefore denied.

B. Discrimination Claims under Title VII, §1981, and the NYSHRL

Defendants move for summary judgment on Plaintiff’s racial discrimination claims,

arguing that he has not established a prima facie case of discrimination and that, even if he had, he

has not demonstrated that Defendants’ non-discriminatory reasons for his termination are pretexts

for discrimination.

The parties agree on the relevant framework for evaluating these claims and that

discrimination claims under Title VII, §1981, and the NYSHRL are analyzed under the long-

established McDonnell–Douglas burden-shifting framework. “The plaintiff in such a case . . .

must first establish, by a preponderance of the evidence, a ‘prima facie’ case of racial

discrimination . . . [E]stablishment of the prima facie case in effect creates a presumption that the

employer unlawfully discriminated against the employee.” St. Mary's Honor Ctr. v. Hicks, 509

U.S. 502, 506 (1993); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143

(2000). At that point, the defendant faces the “burden of producing an explanation to rebut the

prima facie case—i.e., the burden of producing evidence that the adverse employment actions were

taken for a legitimate, nondiscriminatory reason.” St. Mary's Honor Ctr., 509 U.S. at 506–07

(internal citations omitted). If the defendant does so, then the plaintiff must establish “that the

proffered reason was not the true reason for the employment decision, and that [a discriminatory

motive] was”––that is, not merely that the defendant’s alleged motive is a pretext, but that it is a

pretext for discrimination. Id. at 508 (emphasis added) (internal citations omitted); see also

Reeves, 530 U.S. at 146–49. At all times, the ultimate burden of proof rests with the plaintiff.

The requirements for making out a plaintiff’s prima facie case under the McDonnell–

Douglas framework are “de minimis.” Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir.

1998). A plaintiff must show: (1) he is a member of a protected class; (2) he was qualified for his

position; (3) he suffered an adverse employment action; and (4) the action occurred under

circumstances giving rise to an inference of discrimination. Norville v. Staten Island Univ. Hosp.,

196 F.3d 89, 95 (2d Cir. 1999). The parties agree that Mr. Achee has met the first three elements

but disagree as to whether he has shown that his termination occurred in circumstances giving rise

to an inference of discrimination.

1. Whether Plaintiff Has Established a Prima Facie Case of Racial and

Religious Discrimination

The standard for proving an inference of discrimination is a “flexible one that can be

satisfied differently in differing factual scenarios.” Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d

81, 91 (2d Cir. 1996). “No one particular type of proof is required.” Moore v. Kingsbrook Jewish

Med. Ctr., 2013 WL 3968748, at *6 (E.D.N.Y. July 30, 2013) (citations omitted). An inference

of discrimination can be drawn from circumstances such as “the employer’s criticism of the

plaintiff’s performance in ethnically degrading terms; or its invidious comments about others in

the employee’s protected group; or the more favorable treatment of employees not in the protected

group; or the sequence of events leading to the plaintiff’s [adverse employment action].” Abdu–

Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001) (internal citations omitted).

However, a plaintiff’s “mere subjective belief that he was discriminated against because of his

race does not sustain a race discrimination claim.” Moore, 2013 WL 3968748, at *6.

Plaintiff argues that discrimination can be inferred from two circumstances. First, he

asserts that, when he reported discriminatory comments to his supervisors, they told him to forget

about them, and they took no disciplinary action in response. Second, Plaintiff asserts that he was

selectively disciplined for conduct for which his non-black and non-Jewish coworkers were not.

i. Discriminatory Comments

Plaintiff argues that his supervisors’ failure to address his complaints of racial and religious

discrimination evidences their animus. Plaintiff states that he complained about a dozen times of

racial and religious discrimination to his supervisors and that they took no action in response.

Achee Dec. ¶32. Defendants respond that the comments Mr. Achee reported are mere “stray

remarks” and that, because they were made by non-decisionmakers, they have little tendency to

show discriminatory sentiment on behalf of Mr. Achee’s employer. However, as the Second

Circuit recognized in Banks, the stray remarks doctrine is by no means dispositive in employment

discrimination cases, and it is incorrect to “first categorize[] comments as stray or not stray and

then disregard [them] if they fall into the stray category.” Banks, 81 F.4th at 266 (citing Tomassi

v. Insignia Fin. Grp., Inc., 478 F.3d 111, 115–16 (2d Cir. 2007)). Where “other indicia of

discrimination are properly presented, the remarks can no longer be deemed ‘stray,’ and the jury

has a right to conclude that they bear a more ominous significance.” Abdu-Brisson, 239 F.3d at

468; see Smith v. K & F Indus., 190 F. Supp. 2d 643, 651 (S.D.N.Y. 2002) (Where “offensive

remarks are combined with other evidence of discriminatory intent, courts are reluctant to grant

summary judgment.”). The offensive remarks in this case, when repeatedly brought to the

attention of Mr. Achee’s supervisors who took no action in response and instructed him to “forget

about” them, easily meet the de minimis requirements for a prima facie case.

ii. Disparate Treatment

Plaintiff also argues that his differential treatment in being disciplined supports an

inference of discrimination. To raise such an inference, “[t]he standard for comparing conduct

requires a reasonably close resemblance of the facts and circumstances of plaintiff’s and

comparator’s cases, such that the comparator must be similarly situated to the plaintiff in all

material respects.” Abdul-Hakeem v. Parkinson, 523 F. App’x 19, 21 (2d Cir. 2013) (internal

citations omitted). “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 comparable

conduct.” Id.; see Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000).

Mr. Achee has raised a triable issue of fact as to whether his employer discriminated against

him through its selective enforcement of discipline. Mr. Achee asserts that “Defendants did not

discipline White and non-Jewish Laborers for the reasons they disciplined Plaintiff.” Opp. at 20.

Defendants respond that Mr. Achee has not “put forth any evidence of how any other Village

employees were treated regarding disciplinary actions or termination.” Reply at 3. However, Mr.

Achee’s claim is supported by Mr. Hunter’s own acknowledgement that no other employee had

previously been terminated for the reasons Defendants state that they terminated Mr. Achee,

despite the presence of “rampant and repeat performance and attendance issues from the Village’s

employees.” Hunter Dec. ¶7. Mr. Achee’s crew chief, Mr. Savellichi, also testified that Defendants

rarely disciplined non-black employees for attendance and performance issues for which Mr.

Achee had been disciplined. Savellichi Dep. 34:21–35:12. Together, this testimony satisfies

Plaintiff’s de minimis burden of establishing a prima facie inference of discrimination.

iii. Attribution of Discriminatory Inferences to Mr. Achee’s

Employer

In order to succeed on his discrimination claims, Mr. Achee must demonstrate that these

inferences can be attributed to his employer. It is undisputed that Mr. Hunter did not harbor racial

or religious animus against Plaintiff. However, a Title VII plaintiff can succeed on a

discrimination claim against an employer “even absent evidence of illegitimate bias on the part of

the ultimate decision maker, so long as the individual shown to have the impermissible bias played

a meaningful role in the [decision-making] process.” Holcomb v. Iona Coll., 521 F.3d 130, 143

(2d Cir. 2008). Where an employer relies on the account of a biased supervisor in reaching an

adverse employment decision, that supervisor has played a meaningful role in the decision-making

process. See Penta v. Sears Roebuck, Co., 2003 WL 21143071, at *6 (E.D.N.Y. May 12, 2003).

Mr. Achee has made this showing. It is undisputed that one of the three grounds upon

which Mr. Hunter relied was Mr. Achee’s personnel record which a jury could find was tainted by

the racial animus of Mr. Achee’s supervisors. Mr. Hunter did not speak with any other employees

to corroborate these accounts, except for his son, who began working for the Department years

after many of the relevant events in this case and who had no firsthand knowledge of employee

personnel issues.5

The other two grounds proffered by Mr. Hunter, his investigation of racism in the

Department, and his observation of Mr. Achee’s demeanor towards Ms. Werbeck at the September

2019 meeting, do not overcome Mr. Achee’s showing that his supervisors’ accounts played a

meaningful role in his termination. Even accepting that Mr. Achee’s termination may have had an

additional cause, Mr. Achee is required to demonstrate only that the forbidden animus “was a

motivating factor” in his termination. Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 181 (2d

Cir. 1992).

Because Mr. Achee has raised issues of fact that his supervisors harbored discriminatory

animus and that Mr. Hunter effectuated that animus in relying on their reports in deciding to

terminate Mr. Achee’s employment, Plaintiff has met his initial burden of establishing a prima

facie case.

2. Whether Defendants Have Articulated a Legitimate, Non-

Discriminatory Reason for the Employment Action

Defendants have articulated legitimate, non-discriminatory reasons for their decision to

terminate Plaintiff. Mr. Achee had a well-documented disciplinary history, including infractions

related to timeliness, insubordination, and absenteeism. These are legitimate and non-

discriminatory reasons to terminate an employee. See, e.g., Lindsay v. Harris, 50 F. App’x 61, 62

(2d Cir. 2002) (“[P]oor work performance, tardiness and insubordination . . . are legitimate non-

discriminatory reasons” for discharge).

3. Whether Defendants’ Stated Reasons are Pretextual

5 The quality of Mr. Hunter’s investigation into the culture of the Department will be addressed

below.

Once a defendant has proffered a non-discriminatory reason for an adverse employment

action, the burden shifts back to the plaintiff to show that this reason is pretextual. Holcomb, 521

F.3d at 141. To avoid summary judgment, the plaintiff must offer evidence from which a

reasonable jury could conclude by a preponderance of the evidence that racial discrimination

played a role in the adverse action taken by the defendant. Id.; Weber v. City of New York, 973 F.

Supp. 2d 227, 255–57 (E.D.N.Y. 2013). With respect to the plaintiff’s ultimate burden, the

Supreme Court has mandated that “a reason cannot be proved to be ‘a pretext for discrimination’

unless it is shown both that the reason was false, and that discrimination was the real reason.” St.

Mary's Honor Ctr., 509 U.S. at 515 (emphasis in original). The Court of Appeals for the Second

Circuit counsels that “(w)hat this [holding of St. Mary’s] means in the summary judgment context

is that the plaintiff must establish a genuine issue of material fact either through direct, statistical

or circumstantial evidence as to whether the employer’s reason for discharging h[im] is false and

as to whether it is more likely that a discriminatory reason motivated the employer to make the

adverse employment decision.” Gallo v. Prudential Residential Services, 22 F.3d 1219, 1225 (2d

Cir. 1994) (emphasis in original). A plaintiff who establishes both a prima facie discrimination

case and pretext must still, in order to survive summary judgment, demonstrate that he can meet

his “ultimate burden of persuading the trier of fact that the defendant intentionally discriminated

against h[im].” Schnabel v. Abramson, 232 F.3d 83, 90–91 (2d Cir. 2000) (quoting Reeves, 530

U.S. at 143). Thus, even when a plaintiff can establish pretext, summary judgment is still

appropriate if there is insufficient evidence in the record as a whole to support a finding that the

plaintiff was discharged because of religion, race or national origin discrimination. Robinson v.

Macy's Retail Holding, Inc., 2015 WL 10793114, at *10 (S.D.N.Y. Aug. 19, 2015).

Inconsistencies in connection with the write ups Mr. Achee received for leaving early on

August 23, 2019 present evidence of pretext. See Graziadio v. Culinary Inst. Of Am., 817 F.3d

415, 430 (2d Cir. 2016) (Plaintiff can meet his burden “by demonstrating weaknesses,

implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate” reasons

for its action.). As Mr. Achee asserts, that he was issued two written warnings for leaving work

early on this date deviates from the usual disciplinary process, under which an employee receives

one warning for one incident. Defendants offer no sound explanation as to why Plaintiff was

issued two warnings for the same conduct.6 Even more importantly, there is an issue of fact as to

whether his supervisors had in fact approved his leaving work early on this date.

Mr. Achee’s disparate disciplinary treatment also presents evidence of pretext. Mr. Hunter

admitted that Plaintiff was the only employee who was terminated for these issues despite similar

widespread and repeat performance issues in the Department. A jury could infer from this that the

reasons given for his termination were pretextual. See Greenway v. Buffalo Hilton Hotel, 143 F.3d

47, 51 (2d Cir. 1998) (inconsistent application of company disciplinary policy sufficient for jury

to find that employer’s defense was pretext for discrimination).

Because a reasonable jury could find not only that the grounds proffered were pretextual,

but also that the Defendants discriminated against Plaintiff by ignoring his complaints of racial

and religious discrimination and by disciplining him selectively, Defendants’ motion is denied on

Mr. Achee’s discrimination claims.

C. Retaliation Claims under Title VII, §1981, and the NYSHRL

6 Indeed, the two write ups that Mr. Achee received on this day appear to conflict with each

other. One write up says that Mr. Achee left work early “without requesting permission to

leave.” The other acknowledges that Mr. Achee did seek approval, but states that he “cannot

place that responsibility to ask a supervisor for permission to leave early, on another employee,

as he did in this case.”

In addition to prohibiting certain forms of discrimination, Title VII also prohibits retaliation

by employers against workers for their opposition to employment discrimination. Title VII, §1981,

and NYSHRL retaliation claims are analyzed under the same McDonnell–Douglas framework.

Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013). To establish a prima facie

case of retaliation, a plaintiff must demonstrate that he participated in a protected activity, that he

suffered an adverse employment action, and that there was a causal connection between his

engaging in the protected activity and the adverse employment action. Banks, 81 F.4th at 275.

Proof of causation can be shown either (1) directly, through evidence of retaliatory animus directed

against a plaintiff by the defendant, or (2) indirectly, by showing that the protected activity was

followed closely by discriminatory treatment or through other circumstantial evidence such as

disparate treatment of fellow employees who engaged in similar conduct. Littlejohn v. City of New

York, 795 F.3d 297, 319 (2d Cir. 2015). In making out the causal connection, a plaintiff must

show that the desire to retaliate was not just a motivating factor, but was a “but-for” cause of the

challenged employment action. University of Texas Southwestern Medical v. Nassar, 570 U.S.

338, 352 (2013). As the Supreme Court recently made clear, this can be a “sweeping standard,”

and often there can be more than one “but-for” cause of an adverse employment action. Banks, 81

F.4th at 275 (citing Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731, 1739 (2020)).

1. Whether Plaintiff Has Established a Prima Facie Case of Retaliation

At a minimum, the record establishes Mr. Achee has made a prima facie case of retaliation

based on his complaints to Mr. Hunter in September of 2019.7 “[A] plaintiff can indirectly

establish a causal connection to support a discrimination or retaliation claim by showing that the

7 Because Plaintiff has made a prima facie case of retaliation with respect to Mr. Hunter himself,

I do not rely on Plaintiff’s “cat’s paw” theory. See Vasquez v. Empress Ambulance Serv., Inc.,

835 F.3d 267, 274 (2d Cir. 2016).

protected activity was closely followed in time by the adverse employment action.” Banks, 81

F.4th at 277 (quoting Gorzynski, 596 F.3d at 110). A period of several months can demonstrate a

causal connection between the protected activity and the alleged adverse action. Id. Mr. Achee

complained to Mr. Hunter for the first time that one of his coworkers used the N-word to describe

him during their meeting on September 6, 2019. On September 19, Mr. Hunter made the decision

to fire Mr. Achee. Such a short time frame is sufficient to give rise to an inference of retaliation

at the prima facie stage.

Defendants’ response that Mr. Achee “purposefully and strategically raised his complaint

for the first time at his disciplinary meeting in an attempt to distract the Village” from his

performance and attendance issues, Reply at 7–8, requires an assessment of Mr. Achee’s

credibility. Such determinations are appropriate for a jury, and are not for me to make at the

summary judgment stage. Furthermore, as previously discussed, that Mr. Hunter terminated Mr.

Achee and no other employees for similar conduct provides additional evidence that Mr. Achee’s

termination was the product of retaliation. Kanhoye v. Altana Inc., 686 F. Supp. 2d 199, 209

(E.D.N.Y. 2009) (prima facie case of retaliation can be shown by “circumstantial evidence such

as disparate treatment of fellow employees who engaged in similar conduct.”). Based on the short

time period between Mr. Achee’s complaint of racial discrimination, as well as evidence of his

disparate treatment, Mr. Achee has established a prima facie case of retaliation.

2. Whether Defendants Have Articulated a Legitimate Reason for the

Employment Action

As discussed above, Defendants have met their burden of demonstrating legitimate bases

for Plaintiff’s termination.

3. Whether Defendants’ Stated Reasons are Pretextual

As with Mr. Achee’s discrimination claims, the record presents evidence that the reasons

given by Mr. Hunter were pretextual and that retaliation was the real reason for his termination.

Mr. Hunter initially decided to suspend Plaintiff based on his attendance and performance issues

and his demeanor towards Ms. Werbeck during the meeting on September 6th, 2019. In his

Declaration, Mr. Hunter states that, after he conducted his investigation into the culture of the

Department, he concluded that Mr. Achee should be terminated for cause based on “the lack of

corroboration of Mr. Achee’s complaint of potential racial discrimination,” as well as Mr. Achee’s

“complete personnel file” and demeanor toward Ms. Werbeck. Hunter Dec. ¶24.

Insofar as Mr. Hunter relied on the results of his investigation into racial discrimination in

the Department, a jury could find that Mr. Hunter’s investigation was not rigorous enough to

support his conclusion. As previously described, Mr. Hunter spoke only with his son, who did not

claim any firsthand knowledge of the events described by Mr. Achee. Mr. Hunter did not speak

with Mr. Achee’s crew chief, with Mr. Achee himself, or with any other employees. Such

weakness in Mr. Hunter’s explanation for Mr. Achee’s termination supports a finding of pretext.

Graziadio, 817 F.3d at 430. Even more significantly, the “lack of corroboration” of Mr. Achee’s

complaint of discrimination is described by Mr. Hunter as itself a cause of Mr. Hunter’s decision

to terminate Mr. Achee. Hunter Dec. ¶24. Based on this record, a reasonable jury could conclude

that Mr. Hunter’s stated reasons were pretextual and that Mr. Achee’s complaint was a but-for

cause of his termination.

Defendants point to Mr. Hunter’s first-hand experience witnessing Mr. Achee’s hostility

toward Ms. Werbeck and Mr. Hunter’s review of his disciplinary record as other factors. But the

two other factors only caused Mr. Hunter to initially suspend Mr. Achee. Only after Mr. Hunter

completed his inadequate investigation into Mr. Achee’s complaint of racial discrimination did he

make the decision to terminate Mr. Achee. Furthermore, as previously described, the performance

and attendance issues cited by Mr. Hunter were rampant throughout the Parks Department, but Mr.

Achee was the only individual who was terminated. Based on weaknesses in Mr. Hunter’s

explanation, combined with Mr. Achee’s disparate treatment and the close temporal proximity

between his complaint and his termination, a rational jury could find that retaliation was the but-

for cause of the actions taken against him. Accordingly, Defendants’ summary judgment motion

is denied with respect to Plaintiff’s retaliation claims.

D. Aiding and Abetting Liability Under the NYSHRL

Plaintiff claims that the named individual Defendants should be held liable in their

individual capacities under the NYSHRL, which provides that it shall be an unlawful

discriminatory practice “for any person to aid, abet, incite, compel or coerce the doing of any of

the acts forbidden under this article, or attempt to do so.” N.Y. Exec. Law § 296(6). A defendant

may be held personally liable under the NYSHRL if he or she “actually participates in the conduct

giving rise to a discrimination claim.” Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995).

“[T]he case law establishes beyond cavil that a supervisor’s failure to take adequate remedial

measures can rise to the level of ‘actual participation’ under NYSHRL § 296(6).” Lewis v.

Triborough Bridge & Tunnel Auth., 77 F. Supp. 2d 376, 384 (S.D.N.Y. 1999).

Plaintiff has raised questions of fact as to whether his supervisors Ms. Werbeck and Mr.

Torres participated in discriminatory conduct by ignoring his complaints and telling him to forget

about the racist comments of his coworkers. Defendants argue that Mr. Achee cannot bring claims

against the individual Defendants because his underlying claims against the Village fail. But Mr.

Achee has raised issues of fact sufficient to deny the Village’s motion on his NYSHRL claims.

Defendants further argue that Plaintiff cannot establish any conduct that equates to aiding and

abetting because he “has failed to show that he complained to Mr. Torres or Ms. Werbeck.” Reply

at 10. However, as described earlier, Mr. Achee, through his sworn testimony, combined with the

testimony of his crew chief, has raised a triable issue of fact that he did complain to both

supervisors about discriminatory remarks and threats made against him. Summary judgment with

respect to Mr. Achee’s individual claims against Mr. Torres and Ms. Werbeck is therefore denied.

Conclusion

For the reasons set forth above, Defendants’ motion for summary judgment is denied in its

entirety. The parties are directed to prepare a pre-trial order under the supervision of Magistrate

Judge Lee G. Dunst.

SO ORDERED.

_______/S/_________________

NINA GERSHON

United States District Judge

October 30, 2023

Brooklyn, New York