Wall v. Charter Communications, Inc.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

SCOTTY L. WALL,

Plaintiff, DECISION AND ORDER

v. 6:19-CV-06387 EAW

CHARTER COMMUNICATIONS, INC.,

f/k/a TIME WARNER CABLE, INC.,

d/b/a SPECTRUM,

Defendant.

INTRODUCTION

Plaintiff Scotty L. Wall (“Plaintiff”) filed this action on May 23, 2019, against

Charter Communications, Inc., f/k/a Time Warner Cable, Inc., d/b/a Spectrum

(“Defendant”) alleging that Defendant discriminated against him in violation of the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.; the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq.; Title VII, of the 1964 Civil

Rights Act (“Title VII”), as amended, 42 U.S.C. § 2000e et seq; and the New York State

Human Rights Law (“NYSHRL”). (Dkt. 1). Pending before the Court is Defendant’s

motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. 57).

For the reasons explained below, Defendant’s motion for summary judgment is granted

in part and denied in part.

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FACTUAL BACKGROUND

The following facts are taken from Defendant’s Local Rule 56.1 Statement of

Undisputed Material Facts (Dkt. 59), Plaintiff’s Response to Defendant’s Local Rule 56.1

Statement of Material Facts (Dkt. 68), Plaintiff’s Rule 56 Statement of Material Facts in

Opposition to Defendant’s Motion for Summary Judgment (Dkt. 69),1 and the exhibits

submitted by the parties. Unless otherwise noted, the facts set forth below are

undisputed.

Plaintiff is a 57-year-old African American male who began employment with

Time Warner Cable, now known as Charter Communications, in March of 1992. (Dkt.

59 at ¶ 15; Dkt. 68 at ¶ 15; Dkt. 69 at ¶ 7). Throughout his career with Defendant,

Plaintiff was awarded numerous promotions and received multiple raises. (Dkt. 59 at

¶ 17; Dkt. 68 at ¶ 17; Dkt. 69 at ¶ 12). Before he was terminated, Plaintiff worked as a

Retail Sales Supervisor, a position he held since 2007, and for which he was responsible

for supervising multiple stores in western New York State. (Dkt. 59 at ¶¶ 17, 18, 19;

Dkt. 68 at ¶¶ 17, 18, 19; Dkt. 69 at ¶¶ 9, 10). Part of Plaintiff’s responsibilities included

1 The Court notes that on the instant motion, Plaintiff, in opposing summary

judgment, fails to specifically identify the portions of the record upon which he relies in

disputing Defendant’s properly supported Statement of Facts, and for the most part,

merely generally refers to his own affidavit. Moreover, in Plaintiff’s own Rule 56

Statement of Material Facts (Dkt. 69), he simply lists approximately 200 paragraphs

containing numerous allegations of fact without referencing any supporting evidence for

each of his factual allegations. As such, to the extent they are not sufficiently disputed by

Plaintiff’s Responding Statement of Facts, the properly supported Defendant’s Statement

of Facts are deemed admitted. Saleh v. United States Citizenship & Immigr. Servs., No.

18-CV-1347F, 2022 WL 1300545, at *9 (W.D.N.Y. Apr. 29, 2022).

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interviewing employment applicants, disciplining employees, and providing performance

evaluations. (Dkt. 59 at ¶ 20; Dkt. 68 at ¶ 20). The retail stores for which Plaintiff had

managerial oversight responsibilities changed throughout his tenure with Defendant.

(Dkt. 59 at ¶ 44; Dkt. 68 at ¶ 44). At some point, Plaintiff raised concerns to a manager

about not having a lead report assigned to him and having more direct reports than other

retail sales supervisors. (Dkt. 59 at ¶¶ 45, 46; Dkt. 68 at ¶¶ 45, 46). While Plaintiff’s

request for a commensurate pay raise was denied, changes were made to make the

number of direct reports more evenly distributed among retail sales supervisors in

response to his complaint. (Dkt. 59 at ¶¶ 45, 46; Dkt. 68 at ¶¶ 45, 46).

In 2017, Plaintiff reported to Devin Perkins, a white male, who worked as an area

manager for the Rochester, New York area. (Dkt. 59 at ¶ 23; Dkt. 68 at ¶ 23; Dkt. 69 at

¶ 10). Both Plaintiff and Devin Perkins reported to Nicole Averill, who was the senior

retail manager for Defendant’s stores in the Western New York area. (Dkt. 59 at ¶ 24;

Dkt. 68 at ¶ 24; Dkt. 69 at ¶ 11). Plaintiff’s Human Resources business partner was

Meagan Miles, who served as his point of contact for any human resources-related issues.

(Dkt. 59 at ¶ 27; Dkt. 68 at ¶ 27; Dkt. 69 at ¶ 112).

In 2004, while employed by Defendant, Plaintiff was diagnosed with a brain

tumor. (Dkt. 59 at ¶ 34; Dkt. 68 at ¶ 34; Dkt. 69 at ¶ 139). Plaintiff’s request for 12

weeks of leave was granted. (Dkt. 59 at ¶ 35; Dkt. 68 at ¶ 35; Dkt. 69 at ¶ 139). In April

2016, Plaintiff’s brain tumor returned and he was granted additional leave. (Dkt. 59 at

¶ 39; Dkt. 68 at ¶ 39; Dkt. 69 at ¶ 141). Plaintiff returned to work in September of 2016

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to his previous job territory. (Dkt. 59 at ¶ 41; Dkt. 68 at ¶ 41; Dkt. 69 at ¶ 143). When

Plaintiff returned from medical leave, he was told that he had to turn in his company

vehicle. (Dkt. 59 at ¶ 64; Dkt. 68 at ¶ 64; Dkt. 69 at ¶ 144). Plaintiff only initially

received a company vehicle after complaining that three of his white counterparts had

company vehicles and he did not. (Dkt. 59 at ¶ 62; Dkt. 68 at ¶ 62; Dkt. 69 at ¶ 148).

When he requested an accommodation to keep the vehicle for an extra day, the request

was denied, even though the other employees with company vehicles were not given a

specific time to turn it in. (Dkt. 59 at ¶ 66; Dkt. 68 at ¶ 66; Dkt. 69 at ¶¶ 145, 147, 155).

Plaintiff’s request for a rental car, which was permitted for a counterpart who was

younger and not disabled, was denied. (Dkt. 59 at ¶ 74; Dkt. 68 at ¶¶ 74, 76, 77).

Shortly after Plaintiff returned from leave, his base store was changed from East

Rochester, New York, to one further away in Batavia, New York. (Dkt. 59 at ¶ 53; Dkt.

68 at ¶ 53; Dkt. 69 at ¶ 160). Because of his ongoing health issues, in December of 2016,

Plaintiff requested to use accrued time off that he was going to lose if not used. (Dkt. 59

at ¶ 78; Dkt. 68 at ¶ 78; Dkt. 69 at ¶¶ 164, 165). Plaintiff’s request was initially denied

but when he made clear that his health issues were part of the reason for the request,

Devin Perkins allowed Plaintiff to work from home, even though Plaintiff was not aware

of any of his younger white peers having to work from home during requested days off.

(Dkt. 59 at ¶¶ 79, 80, 81; Dkt. 68 at ¶¶ 79, 80, 81; Dkt. 69 at ¶¶ 166, 167, 168).

Under Defendant’s Workplace Violence Prevention Policy, Defendant had “zero

tolerance for aggressive behavior, violence, threats, harassment, intimidation, and/or

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weapons.” (Dkt. 59 at ¶ 2; Dkt. 68 at ¶ 2; Dkt. 60-4). The policy requires employees

who observe “violent conduct in the workplace” or “believe[] a credible threat of such

behavior exists” to “immediately report the conduct to their supervisor, Human

Resources, or a Security representative.” (Dkt. 59 at ¶ 3; Dkt. 68 at ¶ 3; Dkt. 60-4 at

¶ 4.1). A manager or supervisor “must report workplace violence instances immediately

either to Security or Human Resources.” (Dkt. 59 at ¶ 5; Dkt. 68 at ¶ 5; Dkt. 60-4 at

¶ 4.4). “A manager’s failure to appropriately respond and report a workplace violence

issue may result in corrective action, up to and including termination.” (Dkt. 59 at ¶ 5;

Dkt. 68 at ¶ 5; Dkt. 60-4 at ¶ 4.4 (emphasis in original)). In addition, Defendant’s

Standards of Business Policy has a reporting requirement for supervisors. (Dkt. 59 at

¶ 12; Dkt. 68 at ¶ 12; Dkt. 60-3 at 4, 6).

As noted, one of the stores Plaintiff was responsible for was the East Rochester

location. (Dkt. 59 at ¶ 50; Dkt. 68 at ¶ 50). There were three retail sales specialists

employed by this location who directly reported to Plaintiff in January 2017: Sally Peer-

Malone, Caitlin Allen, and Eric Davis. (Dkt. 59 at ¶ 51; Dkt. 68 at ¶ 51; Dkt. 69 at

¶ 159).

On January 4, 2017, when Plaintiff was in a meeting with one of his direct reports,

Bridget Barber, she mentioned that she had heard “something about Eric Davis” and “a

knife” from Caitlin Allen and Sally Peer-Malone. (Dkt. 59 at ¶ 96; Dkt. 68 at ¶ 96; Dkt.

69 at ¶ 26). Ms. Barber did not report any threat of violence, safety concerns, or that the

knife was used as a weapon. (Dkt. 69 at ¶¶ 26, 27, 29). Based on this conversation,

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Plaintiff then requested that both Caitlin Allen and Sally Peer-Malone speak to him that

same day. (Dkt. 69 at ¶¶ 30, 31). Plaintiff first met with Caitlin Allen and then with

Sally Peer-Malone at around 6:00 p.m. that same day, and they reported to Plaintiff that

they had seen Eric Davis carrying and using a knife and that he had rubbed it against his

arm in a manner that made Caitlin Allen uncomfortable, but neither said that they felt

threatened. (Dkt. 59 at ¶ 97; Dkt. 69 at ¶¶ 37, 38, 43). Plaintiff’s impression was that the

incident with the knife was not a recent event. (Dkt. 69 at ¶ 39). Plaintiff’s conversation

with Caitlin Allen and Sally Peer-Malone did not conclude until after the store was closed

for the evening and he let them know he would be reporting it to a supervisor the

following morning. (Id. at ¶¶ 35. 49, 50). Neither Caitlin Allen nor Sally Peer-Malone

expressed any concern or urgency with Plaintiff’s plan. (Id. at ¶¶ 35, 49, 50).

Plaintiff reported Eric Davis’ knife possession to his manager, Devin Perkins, the

next morning, January 5, 2017, as he drove into work. (Dkt. 59 at ¶ 99; Dkt. 68 at ¶ 99;

Dkt. 69 at ¶ 54). Plaintiff was aware of previous complaints involving aggressive

behavior by Eric Davis from customers and employees, but nothing that he would

consider workplace violence or that warranted escalation. (Dkt. 59 at ¶ 103; Dkt. 68 at

¶ 103; Dkt. 69 at ¶ 119). Devin Perkins then reported Plaintiff’s communication to

Nicole Averill and Meagan Miles. (Dkt. 59 at ¶ 104). In turn, Nicole Averill reported it

to her supervisor. (Dkt. 59 at ¶ 105).

After Nicole Averill was informed, she began an investigation into the claim.

(Dkt. 59 at ¶ 106). As part of the investigation, Eric Davis, Sally Peer-Malone, Caitlin

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Allen, and Plaintiff were interviewed. (Dkt. 59 at ¶ 109; Dkt. 69 at ¶¶ 63, 64). Eric

Davis admitted bringing the knife to work and described it as a “switch knife.” (Dkt. 59

at ¶ 110). During their interviews, Nicole Averill alleges that Sally Peer-Malone and

Caitlin Allen advised her that they had told Plaintiff about Eric Davis using the knife to

point at employees. (Dkt. 59 at ¶ 113). During a conference call on January 5, 2017,

with Meagan Miles, Caitlin Allen, Sally Peer-Malone, Devin Perkins, and Plaintiff, Sally

Peer-Malone stated, “Devin, I told you about Eric and the knife.” (Dkt. 59 at ¶ 135; Dkt.

68 at ¶ 135; Dkt. 69 at ¶¶ 64, 107).

As a result of the investigation by Nicole Averill and Meagan Miles, Eric Davis

was terminated the same day for violating the Workplace Violence Prevention Policy.

(Dkt. 59 at ¶ 118). Nicole Averill also investigated Plaintiff’s timeliness in reporting Eric

Davis’ conduct. (Id. at ¶ 124; Dkt. 68 at ¶ 124; Dkt. 69 at ¶ 111). On January 17, 2017,

Nicole Averill spoke to Plaintiff by phone about his alleged lack of timeliness in

reporting. (Dkt. 59 at ¶ 123). She then made a request to terminate Plaintiff’s

employment, concluding that he violated the Workplace Violence Prevention Policy by

reporting the incident the following day, which did not constitute an “immediate” report

as required by the policy. (Dkt. 59 at ¶ 127; Dkt. 69 at ¶ 100). Nicole Averill also

alleged that Plaintiff violated the Standards of Business Conduct by his failure to report

Eric Davis’ violation of the Workplace Violence Prevention Policy. (Dkt. 59 at ¶ 128).

In late January 2017, Plaintiff’s managers, including Devin Perkins and Meagan Miles,

informed him he was being terminated. (Dkt. 59 at ¶ 131; Dkt. 68 at ¶ 131).

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Plaintiff later learned more information from Sally Peer-Malone that she had told

Devin Perkins in November or December of 2016 about Eric Davis having a knife. (Dkt.

59 at ¶ 136; Dkt. 68 at ¶ 13; Dkt. 69 at ¶ 66). Nicole Averill contends that she was not

aware of Sally Peer-Malone’s report to Devin Perkins of the knife, but Plaintiff disputes

that fact. (Dkt. 59 at ¶ 139; Dkt. 68 at ¶ 139; Dkt. 69 at ¶ 102). Devin Perkins was not

fired, disciplined, or investigated about his prior knowledge of Eric Davis and the knife.

(Dkt. 69 at ¶ 21).

PROCEDURAL BACKGROUND

Plaintiff filed a Charge of Employment Discrimination with the New York State

Division of Human Rights on or about May 31, 2017, which was duly filed with the

United States Equal Employment Opportunity Commission (“EEOC”). (Dkt. 1-1). On

February 22, 2019, Plaintiff received a “Right to Sue Letter” from the EEOC (Dkt. 1-3)

and he commenced the instant action on May 23, 2019 (Dkt. 1). In his complaint,

Plaintiff asserts a claim for discrimination on the basis of disability (id. at ¶¶ 38-43), race

(id. at ¶¶ 44-45), and age (id. at ¶¶ 46-47).

Defendant filed its motion for summary judgment on September 10, 2021. (Dkt.

57). Plaintiff filed his response on November 8, 2021. (Dkt. 66). On November 22,

2021, Defendant filed its reply. (Dkt. 70).

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DISCUSSION

I. Summary Judgment Legal Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment

should be granted if the moving party establishes “that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). The Court should grant summary judgment if, after considering the evidence in

the light most favorable to the nonmoving party, the Court finds that no rational jury

could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).

“The moving party bears the burden of showing the absence of a genuine dispute

as to any material fact. . . .” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473,

486 (2d Cir. 2014). “Where the non-moving party will bear the burden of proof at trial,

the party moving for summary judgment may meet its burden by showing the evidentiary

materials of record, if reduced to admissible evidence, would be insufficient to carry the

non-movant’s burden of proof at trial.” Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103

(W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Once

the moving party has met its burden, the opposing party “must do more than simply show

that there is some metaphysical doubt as to the material facts[] and may not rely on

conclusory allegations or unsubstantiated speculation.” Robinson v. Concentra Health

Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654 F.3d

347, 358 (2d Cir. 2011)). Specifically, the non-moving party “must come forward with

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specific evidence demonstrating the existence of a genuine dispute of material fact.”

Brown, 654 F.3d at 358. Indeed, “the mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of material fact.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

The Second Circuit has “repeatedly expressed the need for caution about granting

summary judgment” for an employer in discrimination cases where “the merits turn on a

dispute as to the [defendant’s] intent.” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.

2008); Anderson v. N.Y.C. Health & Hosps. Corp., No. 16-CV-1051(GBD)(KFP), 2020

WL 2866960, at *10 (S.D.N.Y. Mar. 2, 2020) (“In the context of employment

discrimination lawsuits, courts must be ‘especially cautious’ in granting summary

judgment ‘because the employer’s intent is often at issue and careful scrutiny may reveal

circumstantial evidence supporting an inference of discrimination.’” (quoting Belfi v.

Prendergast, 191 F.3d 129, 135 (2d Cir. 1999)), adopted, 2020 WL 1528101 (S.D.N.Y.

Mar. 31, 2020). “Though caution must be exercised in granting summary judgment

where motive is genuinely in issue, summary judgment remains available for the

dismissal of discrimination claims in cases lacking genuine issues of material fact.”

McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997) (citations omitted).

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II. Plaintiff’s Employment Discrimination Claims Under Title VII, ADA, ADEA,

and NYSHRL

A. Legal Standard

Plaintiff alleges that he was discriminated against based on his age, race and

disability related to his brain tumor. As a threshold matter, the Court notes that while

Plaintiff’s memorandum of law (Dkt. 66) appears to suggest that Plaintiff is asserting a

retaliation claim, no such claim appears in his complaint. Moreover, Plaintiff’s Right to

Sue letter (Dkt. 1-1 at 2), does not reflect that he filed a claim of retaliation.

Accordingly, while some of Plaintiff’s arguments relating to retaliation may be generally

relevant to the claims he has asserted in his complaint, a claim for retaliation is not before

the Court and will not be addressed. Whitt v. Kaleida Health, 298 F. Supp. 3d 558, 568

(W.D.N.Y. 2018) (“Raising a new claim for the first time in opposition to summary

judgment is inappropriate.”).

On a motion for summary judgment, discrimination claims under Title VII, the

ADEA, the ADA, and the NYSHRL are typically evaluated under the burden-shifting

analysis described in McDonnell Douglas v. Green, 411 U.S. 792 (1973). Szewczyk v.

Saakian, No. 21-672, 2022 WL 2037196, at *1 (2d Cir. June 7, 2022) (“Title VII, ADEA,

and NYSHRL claims are evaluated under the McDonnell Douglas framework.”); Voss v.

McDonough, 17-CV-09015 (PMH), 2021 WL 4199941, at *9 (S.D.N.Y. Sept. 15, 2021)

(same). Plaintiff must initially establish a prima facie case of discrimination by

establishing that: (1) he was within the protected class; (2) he was qualified for the

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position; (3) he was subject to an adverse employment action; and (4) the adverse action

occurred under circumstances giving rise to an inference of discrimination. See Terry v.

Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003); Sotomayor v. City of New York, 862 F.

Supp. 2d 226, 253 (E.D.N.Y. 2012), aff’d, 713 F.3d 163 (2d Cir. 2013). If a plaintiff

establishes a prima facie case, the burden then shifts to the employer to articulate “some

legitimate nondiscriminatory reason” for the disparate treatment. McDonnell Douglas,

411 U.S. at 802. If the employer articulates a sufficient reason, the burden shifts back to

the plaintiff to prove that the employer’s reason “was in fact pretext” for discrimination.

Id. at 804; Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 83 (2d Cir. 2015).

For his race-based claim, 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 a prohibited factor was at least one of the

‘motivating’ factors for the decision.” Smith v. New York and Presbyterian Hosp., 440 F.

Supp. 3d 303, 328 (S.D.N.Y. 2020) (internal quotations and citation omitted). By

contrast, for his age-based related claims, Plaintiff “must prove, by a preponderance of

the evidence, that age was the ‘but-for’ cause of the challenged adverse employment

action and not just a contributing or motivating factor.” Gorzynski v. JetBlue Airways

Corp., 596 F.3d 93, 106 (2d Cir. 2010) (quoting Gross v. FBL Fin. Servs., 557 U.S. 167,

180 (2009)). The same but-for standard applies to Plaintiff’s disability-related claims.2

2 With respect to age discrimination claims under the NYSHRL, the Second Circuit

has “assumed without deciding that ‘but for’ causation is also required,” noting that the

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Natofsky v. City of N.Y., 921 F.3d 337, 348 (2d Cir. 2019) (requiring plaintiff to “prove

that [disability] discrimination was the but-for cause of any adverse employment

action.”).

Defendant does not contest that Plaintiff meets the first three elements of a prima

facie case of race, age, and disability discrimination for purposes of this motion—

namely, that as an African American man over 40 years old with a disability arising from

his brain tumor, he falls within protected classes; that he was qualified for his position;

and, by virtue of his termination, that he was subject to an adverse employment action.

Rather, Defendant contends that the evidence does not give rise to an inference of

issue has not been definitively resolved by New York courts. Boonmalert v. City of New

York, 721 F. App’x 29, 32 (2d Cir. 2018) (citing Gorzynski, 596 F.3d at 105 n.6 and

DeKenipp v. State, 97 A.D.3d 1068, 1070 (2012)). The Second Circuit has similarly not

resolved whether the “but for” causation standard applies to NYSHRL claims alleging

disability discrimination. Ragin v. Riverbay Corp., No. 20-2233-CV, 2021 WL 4057196,

at *3 n.2 (2d Cir. Sept. 7, 2021) (“[W]e note that we have not yet determined whether

‘but for’ causation is the proper standard for claims of disability discrimination under the

NYSHRL or whether, for instance, Title VII’s lower ‘mixed-motive’ test would apply

instead, and we decline to do so today.”). Because Plaintiff’s disability claims survive

under the more exacting but-for test, the Court does not resolve the question as to the

applicable standard under the NYSHRL for purposes of this Decision and Order. With

respect to any age discrimination claims asserted under state law, Defendant contends

that the but-for causation standard applies (Dkt. 58 at 19), and Plaintiff makes no effort to

dispute that contention—thus waiving any argument in that regard. Moreover, the Court

seriously questions whether Plaintiff has even asserted an age discrimination claim under

state law, as the complaint is far from a model of clarity in that regard. (See Dkt. 1). In

any event, the Court’s conclusion that no genuine dispute of material fact exists so as to

justify denying summary judgment in favor of Defendant on Plaintiff’s age

discrimination claim under state law would likely be the same even if the less demanding

causation standard applied.

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employment discrimination, and instead shows that Plaintiff was terminated for company

policies having nothing to do with age, race, or disability. It further argues that Plaintiff

cannot establish pretext. The Court will address each claim separately.

B. Prima Facie Case

In establishing a prima facie case, “the burden placed on Plaintiff at this stage is

‘de minimis’ and requires only that the plaintiff ‘proffer[] admissible evidence show[ing]

circumstances that would be sufficient to permit a rational finder of fact to infer a

discriminatory motive.’” Benoit v. Sikorsy Aircraft, No. 3:20-CV-00717 (SVN), 2022

WL 3043240, at *5 (D. Conn. Aug. 2, 2022) (quoting Cronin v. Aetna Life Ins. Co., 46

F.3d 196, 204 (2d Cir. 1995)). “With respect to the fourth prima facie element, ‘there is

no unbending or rigid rule about what circumstances allow an inference of discrimination

when there is an adverse employment decision.’” Watkins v. City of Waterbury Bd. of

Educ., No. 3:19-CV-00593 (SVN), 2022 WL 3347218, at *9 (D. Conn. Aug. 12, 2022)

(quoting Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996)). Instead,

“[t]he necessary inference may be derived from a variety of circumstances, including ‘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 discharge.” Lopez v. White Plains Hosp., No. 19-CV-6263

(KMK), 2022 WL 1004188, at *8 (S.D.N.Y. Mar. 30, 2022) (quoting Detouche v. JTR

Transp. Corp., No. 17-CV-7719, 2020 WL 7364116, at *10 (S.D.N.Y. Dec. 14, 2020));

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Schneider v. Wal-Mart Stores, Inc., No. 16-cv-2010 (NSR), 2019 WL 294309, at *4

(S.D.N.Y Jan. 23, 2019) (“Evidence leading to the inference of discrimination may

include discriminatory comments made by the defendant relating to a disability, failure to

take actions required for a disabled employee to return to work, or preferential treatment

of employees similarly situated to the plaintiff who are not members of the plaintiff’s

protected class.”).

“A showing of disparate treatment – that is, a showing that an employer treated

plaintiff less favorably than a similarly situated employee outside his protected group – is

a recognized method of raising an inference of discrimination for the purposes of making

out a prima facie case.” Moore v. Am. Fed’n of State, Cnty. & Mun. Emps. Loc. 1095,

No. 17-CV-0704LJV, 2022 WL 262347, at *10 (W.D.N.Y. Jan. 28, 2022) (citation and

quotation omitted), report and recommendation adopted, No. 17-CV-704-LJV-MWP,

2022 WL 1497959 (W.D.N.Y. May 12, 2022); Almodovar v. Cross Fin. Corp., No. 3:20-

CV-01179 (JCH), 2022 WL 1810132, at *5 (D. Conn. June 2, 2022) (“A plaintiff may

[also] raise such an inference at this stage by showing that the employer subjected her to

disparate treatment by treating her less favorably than a similarly situated employee

outside [her] protected group.” (quotation and citation omitted)). To demonstrate that

employees are similarly situated, they must be subject to the same discipline standards

and have engaged in similar conduct. Moore, 2022 WL 262347, at *10. “The standard

for comparing conduct requires a reasonably close resemblance of the facts and

circumstances of plaintiff’s and comparator’s cases, rather than a showing that both cases

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are identical. In other words, the comparator must be similarly situated to the plaintiff in

all material respects.” Id.; Perkins v. United States Dep’t of the Treasury, No. 18-CV-

08911 (NSR), 2022 WL 19772, at *6 (S.D.N.Y. Jan. 3, 2022) (“The similarly situated

individuals must be ‘similarly situated in all material respects,’ including ‘having

engaged in conduct similar to the plaintiff.’” (quoting Blasi v. N.Y. City Bd. of Educ.,

Nos. 00-CV-5320 (RRM)(MDG), 03-CV-3836 (RRM)(MDG), 2012 WL 3307227, at

*14 (E.D.N.Y. Mar. 12, 2012)). “In the Second Circuit, whether or not co-employees

report to the same supervisor is an important factor in determining whether two

employees are subject to the same workplace standards for purposes of finding them

similarly situated.” Diggs v. Niagara Mohawk Power Corp., No. 114CV244(GLS/CFH),

2016 WL 1465402, at *4 (N.D.N.Y. Apr. 14, 2016), aff’d, 691 F. App’x 41 (2d Cir.

2017).

1. Race Discrimination

The Court finds that Plaintiff has met his burden of establishing the requisite

elements of a prima facie case of race discrimination against Defendant. While there

may not be any direct evidence of discrimination on the basis of Plaintiff’s race, Plaintiff

has sufficiently alleged that Devin Perkins, a white male, was not disciplined or

terminated for conduct that violated the same policy Plaintiff is alleged to have violated.

Indeed, the allegations against Devin Parker arise from his receipt of the same exact

complaint about the same employee. Moreover, Devin Perkins is alleged to have learned

of Eric Davis having a knife months before Plaintiff did and Devin Perkins did not report

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the conduct at all, whereas Plaintiff reported the information the very next morning,

making Devin Perkins’ alleged conduct more egregious than that of Plaintiff.

Defendant argues that Devin Perkins cannot be considered a comparator to

Plaintiff because Defendant was not aware of Devin Perkins’ alleged policy violation.

See Dinkins v. Suffolk Transp. Serv., Inc., No. 07-CV-3567 (JFB)(AKT), 2010 WL

2816624, at *10 (E.D.N.Y. 2010) (“An employee who allegedly engaged in misconduct

comparable to the plaintiff’s is not similarly situated to the plaintiff when the employer is

unaware of what the comparator employee supposedly did.”). In support of this

argument, Defendant relies on Nicole Averill’s deposition testimony indicating that she

was not aware Devin Perkins had been informed about Eric Davis’ possession of a knife

at work. (See Dkt. 58 at 20-21). But Plaintiff contends and Defendant does not dispute

for purposes of this motion that on a call with Meagan Miles on January 5, 2017, Sally

Peer-Malone expressly stated that she had told Devin Perkins about the knife. Moreover,

Devin Perkins—who presumably knew that he had failed to report Sally Peer-Malone’s

complaint—was involved in the investigation of Plaintiff’s alleged untimely report,

reported his findings to Nicole Averill as part of the investigation, and attended the

meeting with Meagan Miles where Plaintiff was told he was being terminated. (Dkt. 59

at ¶¶ 121, 122, 131). Accordingly, Defendant’s reliance on Nicole Averill’s deposition

testimony alone that she was not aware of Sally Peer-Malone’s complaint to Devin

Perkins does not resolve this genuine issue of material fact as to whether Defendant was

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aware of Devin Perkins’ comparable misconduct and whether Devin Perkins is therefore

similarly situated to Plaintiff.

Moreover, in addition to his claim of being disparately treated from Devin Perkins,

Plaintiff points to other evidence where similarly situated white coworkers were given

smaller teams, less stores, and less responsibility than Plaintiff and yet, were provided

help with lower level of leadership to support them in their daily operations, whereas

Plaintiff was not. He contends that his white counterparts were given company cars even

though Plaintiff had the greatest number of stores and the greatest number of direct

reports, and that he only received a company vehicle when he complained about the

disparity.

Taking these allegations together, the Court concludes that a reasonable jury could

conclude that the circumstances support an inference of discrimination, and thus for

purposes of this motion Plaintiff has established a prima facie case of race discrimination

based on his termination.

2. Disability Discrimination

The Court turns next to Plaintiff’s disability discrimination claims. Plaintiff has

alleged both a failure-to-accommodate claim and that he was discriminated against on the

basis of his disability when he was terminated. (See Dkt. 1 at ¶¶ 42, 43).

a. Failure to Accommodate

“To plead a failure-to-accommodate claim, a plaintiff must allege that ‘(1) [he] is a

person with a disability under the meaning of the ADA; (2) an employer covered by the

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statute had notice of [his] disability; (3) with reasonable accommodation, [he] could

perform the essential functions of the job at issue; and (4) the employer has refused to

make such accommodations.’” Dooley v. JetBlue Airways Corp., 636 F. App’x 16, 18

(2d Cir. 2015) (quoting McMillan v. City of N.Y., 711 F.3d 120, 125-26 (2d Cir. 2013)).

In addition, “the ADA envisions an interactive process by which employers and

employees work together to assess whether an employee’s disability can be reasonably

accommodated.” McBride v. BIC Consumer Products Mfg. Co., Inc., 583 F.3d 92, 99 (2d

Cir. 2009) (quotations omitted). “An employer engages in an interactive process by, for

example, meeting with the employee who requests an accommodation, requesting

information about the condition and what limitations the employee has, asking the

employee what he or she specifically wants, showing some sign of having considered the

employee’s request, and offering and discussing available alternatives when the request is

too burdensome.” Sheng v. M&TBank Corp., 848 F.3d 78, 87 n.3 (2d Cir. 2017).

Here, neither Plaintiff’s complaint nor his submissions on the instant motion make

precisely clear the nature of a purported failure to accommodate claim. As an initial

matter, it is undisputed that Plaintiff’s requests to take medical leave for his brain tumor

were approved by Defendant and cannot form the basis of a failure to accommodate.

Talbott-Serrano v. Iona College, No. 21-CV-1055 (CS), 2022 WL 3718346, at *13

(S.D.N.Y. Aug. 29, 2022) (holding that failure to accommodate claim was not stated

where defendant “granted Plaintiff a plainly reasonable accommodation”).

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To the extent that Plaintiff’s failure to accommodate claim arises from his

allegations that he was required to turn in his company car, Plaintiff has not alleged that

this company directive was related to his disability. Instead, Plaintiff’s allegations

suggest that all supervisors had to turn in company vehicles. Nor has Plaintiff alleged

any connection between his disability and a need for a company car to perform the

essential functions of his position.

Similarly, to the extent Plaintiff attempts to allege a failure to accommodate claim

arising from his request to take accrued time off, any such claim fails. While Plaintiff

alleges that his initial request to take time off was denied, he acknowledges that after

further discussion with his manager wherein Plaintiff advised that the time off request

related to his ongoing health issues, Defendant agreed to allow Plaintiff to work from

home. Plaintiff does not dispute that this accommodation was accepted by Plaintiff and

not pursued further. Martinez v. Mount Sinai Hosp., 670 F. App’x 735, 736 (2d Cir.

2016) (“[Defendant] engaged in the required ‘interactive process’ with [Plaintiff] . . . and

it ultimately offered her a reasonable accommodation—one that she accepted, no less—

thereby entitling [Defendant] to summary judgment.”); Atkins v. Walmart, Inc., No. 6:20-

CV-1217 (ATB), 2022 WL 1320300, at *17 (N.D.N.Y. May 2, 2022) (“An employee

who is responsible for the breakdown of that interactive process may not recover for a

failure to accommodate.” (quoting Nugent v. St. Lukes-Roosevelt Hosp. Ctr., 303 F.

App’x 943, 946 (2d Cir. 2008)); Fasanello v. United Nations Int’l Sch., No. 1:19-CV-

5281-GHW, 2022 WL 861555, at *21 (S.D.N.Y. Mar. 23, 2022) (“However, while

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Defendant’s alleged failure to hold a good faith constructive dialogue regarding

Plaintiff’s accommodation requests may suggest discriminatory intent, it does not

preclude summary judgment on Plaintiff’s failure to accommodate claim where, as here,

there is no evidence that any of Plaintiff’s accommodation requests were refused.”).

As a result, Defendant’s motion for summary judgment on Plaintiff’s failure to

accommodate claim is granted.

b. Termination on the Basis of Disability

Conversely, the Court finds that a rational jury could conclude that Plaintiff has

established the requisite elements of a prima facie case of discrimination on the basis of

disability arising from his termination.

As with Plaintiff’s race-related claim, Plaintiff alleges that his disability status

resulted in him being treated differently for the same conduct as Devin Perkins, who is

not similarly disabled. And in addition to the disparate treatment alleged, Plaintiff

contends that upon his return from disability leave, he was treated less favorably than he

had been previously. He points to the fact that shortly after returning to work, he was

transferred from the East Rochester store to the store furthest away in Batavia,

contemporaneous with having to return his company vehicle and being denied the use of

a rental car. He also suggests that being required to work from home following the denial

of his request to use his accrued leave time for his ongoing health issues is evidence of

disability-related discrimination. While these facts may not be sufficient to support a

standalone failure to accommodate claim, when coupled with the disparate treatment

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alleged and temporal proximity to a return from disability leave, the Court concludes that

the sequence of events support a finding of a prima facie case of disability-related

discrimination based on Plaintiff’s termination.

3. Age Discrimination

Unlike Plaintiff’s race and disability related claims, no rational jury could

conclude that Plaintiff has met his burden of establishing a prima facie case of age

discrimination, and as discussed further below, alternatively any such prima facie case is

so weak that it ultimately fails under the third step of the McDonnell Douglas test.

Unlike the race and disability claims, Plaintiff essentially relies solely on Devin

Perkins’ status as a comparator to support an inference of discrimination. However, as

noted above, Devin Perkins also falls outside Plaintiff’s protected classifications related

to race and disability, and therefore relying solely on Devin Perkins’ comparator status to

draw an inference of age discrimination does not present a particularly strong argument.

This is particularly the case where the higher but-for causation standard applies.

Moreover, other than the alleged disparate treatment, Plaintiff has not set forth any

additional evidence to support a conclusion that Plaintiff’s age was the “but for” cause of

his termination other than his own subjective beliefs, which are insufficient to sustain his

claim. Serrano, 2022 WL 3718346, at *9 (“Courts must ‘carefully distinguish between

evidence that allows for a reasonable inference of discrimination and evidence that gives

rise to mere speculation and conjecture.’” (quoting Bickerstaff v. Vassar Coll., 196 F.3d

435, 448 (2d Cir. 1999)); Boncoeur v. Haverstraw-Stony Point Cent. Sch. Dist., No. 20-

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CV-10923 (KMK), 2022 WL 845770, at *8 (S.D.N.Y. Mar. 22, 2022) (“[A] plaintiff’s

feelings and perceptions of being discriminated against are not evidence of

discrimination.” (quotation and citation omitted)). Plaintiff cites to a meeting in January

2017, to discuss the rollout of new products, where one of Plaintiff’s peers shouted to

Plaintiff and other older employees, “Yo, you gotta LIBERATE yo self.” Plaintiff

contends that despite management witnessing the incident, none of them did or said

anything in response to the comment. Not only was this statement not alleged to have

been made by a decision-maker, but the statement is not clearly degrading or invidious

age-based commentary.3 As a result, the Court concludes that based on this thin

evidence—namely a stray remark by a co-worker during an unrelated meeting and

reliance on Devin Perkins as a comparator for purposes of age—a reasonable jury would

not be able to conclude that the termination of Plaintiff’s employment occurred under

circumstances giving rise to an inference of age discrimination. See generally Nowlin v.

Mount Sinai Health Sys., No. 20 CIV. 2470 (JPC), 2022 WL 992829, at *12 (S.D.N.Y.

Mar. 31, 2022) (“Stray remarks do not establish a prima facie case of discrimination.”);

Kaplan v. Multimedia Ent., Inc., No. 02-CV-00447C(F), 2005 WL 2837561, at *8

3 “In determining whether a remark is probative [of discriminatory intent], [district

courts] have considered four factors: (1) who made the remark (i.e., a decision-maker, a

supervisor, or a low-level co-worker); (2) when the remark was made in relation to the

employment decision at issue; (3) the content of the remark (i.e., whether a reasonable

juror could view the remark as discriminatory); and (4) the context in which the remark

was made (i.e., whether it was related to the decision-making process).” Henry v. Wyeth

Pharms., Inc., 616 F.3d 134, 149 (2d Cir. 2010). Here, while the remark in question was

made close in time to Plaintiff’s termination, as explained, it was made by a coworker,

was not clearly discriminatory, and was wholly unrelated to the decision-making process.

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(W.D.N.Y. Oct. 27, 2005) (“Stray remarks in the workplace, by themselves, without a

demonstrated nexus to the complained-of personnel action will not defeat an otherwise

well-founded motion for summary judgment.”), aff’d, 199 F. App’x 54 (2d Cir. 2006).

C. Legitimate Nondiscriminatory Reason

Next Defendant contends that even if Plaintiff could establish a prima facie claim

of race, age, and disability discrimination, his claims are subject to dismissal because

Defendant had a legitimate nondiscriminatory reason for Plaintiff’s termination—

specifically, Plaintiff’s violation of a company policy intended to preserve the safety of

Defendant’s employees and customers. The threshold for establishing a legitimate

nondiscriminatory reason is not a high standard. Weiss v. Quinnipiac Univ., No. 3:20-

CV-00375 (JCH), 2021 WL 4193073, at *4 (D. Conn. Sept. 15, 2021). “Importantly,

Defendant need not prove these reasons are the actual reasons for the adverse

employment action; rather, ‘by producing evidence (whether ultimately persuasive or

not) of nondiscriminatory reasons,’ Defendant sustains its burden under the second step

of the McDonnell Douglas framework.” Benoit, 2022 WL 3043240, at *8 (quoting St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993); see also Delaney v. Bank of Am.

Corp., 766 F.3d 163, 168 (2d Cir. 2014) (“The defendant need not persuade the court that

it was actually motivated by the proffered reason[]. It is sufficient if the defendant’s

evidence raises a genuine issue of fact as to whether it discriminated against the

plaintiff.” (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981))).

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Here, Defendant notes that the company policy in question requires that any

workplace conduct violating its Workplace Violence Prevention Policy must immediately

be reported. It argues that Plaintiff’s delay in reporting constituted a violation of the

policy requirements—and indeed, prior to Plaintiff reporting the incident the next

morning, Eric Davis had approached one of the complaining employees about the report.

(See Dkt. 59 at ¶ 101). The Court agrees that enforcement of company safety policies is

of paramount importance and provides a legitimate nondiscriminatory reason to support

Plaintiff’s termination. Summit v. Equinox Holdings, Inc., No. 20 CIV. 4905 (PAE),

2022 WL 2872273, at *12 (S.D.N.Y. July 21, 2022) (“It is well established that a

violation of a workplace violence policy constitutes a legitimate, nondiscriminatory

reason for an employee’s termination.”); Brown v. Scarsdale Vill. Hall, No. 95 CIV. 4488

DLC, 1996 WL 445360, at *5 (S.D.N.Y. Aug. 7, 1996) (finding legitimate

nondiscriminatory reason for termination “following an investigation that permitted them

to conclude that [plaintiff’s] behavior constituted a threat to the safety of [defendant’s]

employees and presented a serious management problem”), aff’d, 113 F.3d 1229 (2d Cir.

1997).

D. Pretext

The Court now turns to the last step of the McDonnell Douglas test. Defendant

contends that Plaintiff has introduced no evidence of pretext. “A plaintiff may

demonstrate pretext by showing ‘weaknesses, implausibilities, inconsistencies, or

contradictions in the employer’s proffered legitimate, nonretaliatory reasons for its

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action.’” Carr v. New York City Transit Auth., No. 16-CV-9957 (VSB), 2022 WL

824367, at *9 (S.D.N.Y. Mar. 18, 2022) (quoting Gokhberg v. PNC Bank, Nat’l Ass’n,

17-cv-00276 (DLI)(VMS), 2021 WL 421993, at *7 (E.D.N.Y. Jan. 6, 2021)). “A

showing that similarly situated employees belonging to a different [protected class]

received more favorable treatment can also serve as evidence that the employer’s

proffered legitimate, non-discriminatory reason for the adverse job action was a pretext

for . . . discrimination.” Osekavage v. Sam's E., Inc., No. 19-CV-11778 (PMH), 2022

WL 3084320, at *8 (S.D.N.Y. Aug. 3, 2022) (quoting Graham v. Long Island R.R., 230

F.3d 34, 43 (2d Cir. 2000)); Schneider, 2019 WL 294309, at *5 (“Pretext may be

demonstrated by additional evidence that the employer’s proffered reason is not credible

or by reliance on the evidence supporting the prima facie case alone.” (citing Chambers

v. TRM Copy Ctrs. Corp., 43 F.3d 29, 38 (2d Cir. 1994)).

Of course, it is relevant to a pretext determination that Devin Perkins, a white male

without a known disability, received more favorable treatment after engaging in the same

exact conduct. As noted, both Plaintiff and Devin Perkins allegedly received the same

report of information about Eric Davis possessing a knife in the workplace. The

reporting employee identified this prior complaint during an investigation of the incident

in the presence of the human resources representative involved in Plaintiff’s

termination—and Devin Perkins himself played a role in Plaintiff’s termination. Both

Plaintiff and Devin Perkins were subject to the same leadership-level provisions in the

Workplace Violence Prevention Policy and both reported to Nicole Averill. That

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Plaintiff was terminated and Devin Perkins received no discipline at all supports

Plaintiff’s claim of pretext, as do the other factual allegations supporting a showing of

Plaintiff’s prima facie case on the race and disability discrimination claims.

Further, Plaintiff raises issues of fact as to pretext by challenging weaknesses in

Defendant’s proffered reasons for his termination. Plaintiff argues that the information

that was reported to him did not rise to the level of a workplace violence incident. He

contends that neither Caitlin Allen or Sally Peer-Malone stated that they felt threatened or

that Eric Davis was using the knife as a weapon, and Plaintiff did not get the impression

from Caitlin Allen or Sally Peer-Malone that the presence of the knife at work was a

recent event. The fact that Devin Perkins apparently did not feel it necessary to report the

information to his superiors when he learned it tends to corroborate Plaintiff’s impression

of the seriousness of the threat of immediate harm. Importantly, too, it was not Caitlin

Allen or Sally Peer-Malone who came to Plaintiff about the knife; rather, Plaintiff only

became aware of the information when Bridget Barber casually mentioned it in a meeting

with him about something else. It was Plaintiff who took the initiative to follow up on

Bridget Barber’s comment and request to meet with Caitlin Allen or Sally Peer-Malone

that same day. Further, the meeting wherein Plaintiff learned that Caitlin Allen felt

uncomfortable being shown the knife did not conclude until after closing hours on

January 4, 2017, and Plaintiff reported it to his supervisor as he drove into work on the

morning of January 5, 2017.

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The Workplace Violence Prevention Policy does not define what constitutes

“immediate” reporting. While Defendant argues that Plaintiff admitted at his deposition

that he should not have waited until the next day to report the incident (Dkt. 59 at ¶ 102),

Plaintiff argues that his testimony is not a concession and instead, supports the steps he

took to report the information as soon as possible, which he contends in this case was the

following morning. (Dkt. 60-1 at 64). The Court agrees that Defendant has construed

Plaintiff’s deposition testimony far too broadly—or at the very least, a reasonable jury

may so conclude.

Drawing all inferences in Plaintiff’s favor, a reasonable factfinder could find that

his termination was a pretext for race and disability discrimination. On the other hand,

the Court does not reach a similar conclusion with respect to Plaintiff’s age

discrimination claim. As noted above, the Court does not find that Plaintiff has raised

any genuine issue of material fact to suggest that he could succeed in establishing a prima

facie case of age discrimination, and even if he could, any such prima facie case is weak.

See Almodovar v. Cross Fin. Corp., No. 3:20-CV-01179 (JCH), 2022 WL 1810132, at *8

(D. Conn. June 2, 2022) (“Where, as is the case here, there is only a single similarly

situated employee, and the record is otherwise devoid of direct evidence of

discriminatory intent, the Second Circuit has held that a plaintiff often needs something

more upon which a reasonable jury can infer pretext.”). Considering all the evidence, the

Court concludes that even if Plaintiff had sufficient evidence of age discrimination to

reach the third step of the McDonnell Douglas test, the proof is insufficient—even

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considering the weaknesses in Defendant’s proffered legitimate non-discriminatory

reasons noted above—for a reasonable jury to conclude that but for Plaintiff’s age, he

would not have been terminated. See, e.g., Rinaldi v. Nice, Ltd., No. 19 CIV. 424 (LGS),

2021 WL 827767, at *6-7 (S.D.N.Y. Mar. 4, 2021) (where prima facie case of age

discrimination was weak, plaintiff could not overcome employer’s proffered legitimate,

nondiscriminatory reason for termination).

In sum, when all this evidence is viewed as a whole, the Court concludes that

Plaintiff has established a prima facie case of race and disability discrimination pursuant

to Title VII, the ADA, and NYSHRL, and he has further raised genuine issues of material

fact concerning whether Defendant’s cited reasons for firing Plaintiff were pretextual.

Accordingly, Defendant’s motion for summary judgment on Plaintiff’s race and disability

discrimination claims in violation of Title VII, the ADA, and the NYSHRL, is denied, but

is granted as to Plaintiff’s failure to accommodate claim and age discrimination claim.4

4 The complaint makes a passing reference to a hostile work environment (Dkt. 1 at

26), but Plaintiff has not contended in his opposition papers that he is asserting such a

claim, and indeed, the complaint does not sufficiently assert any such claim.

Accordingly, to the extent Plaintiff attempted to pursue any such claim, it has been

abandoned.

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CONCLUSION

For the foregoing reasons, Defendant’s motion for summary judgment (Dkt. 57) is

granted in part and denied in part.

SO ORDERED.

ELIZABETH A. WOLFORD

Chief Judge

United States District Court

Dated: September 7, 2022

Rochester, New York

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