# Murphy v. Autozone Inc.

> District Court, E.D. New York · July 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10659029

## Case

- **Court:** District Court, E.D. New York
- **Decided:** July 12, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
ARTHUR MURPHY,

Plaintiff, MEMORANDUM AND ORDER
1:22-cv-00911 (OEM) (VMS)
-against-

AUTOZONE, LLC (d/b/a/ AUTOZONE AUTO
PARTS, STORE 4778), LENWORTH SEWELL,
individually, and IRZAUD JAIKERAN (a/k/a Mark),
individually

Defendants.
----------------------------------------------------------------x
ORELIA E. MERCHANT, United States District Judge:
On February 18, 2022, plaintiff Arthur Murphy (“Plaintiff”) filed this employment
discrimination action against AutoZone, LLC (“AutoZone”), Lenworth Sewell (“Sewell”), and
Irzaud Jaikeran (“Jaikeran”) (collectively, “Defendants”), asserting claims of hostile work
environment, discrimination, and retaliation in violation of Title VII of the Civil Right Act of 1964
(“Title VII”), 42 U.S.C. § 1981, the New York State Human Rights Law (“NYSHRL”), and the
New York City Human Rights Law (“NYCHRL”). Plaintiff also asserts aiding and abetting claims
against Jaikeran and Sewell in violation of the NYSHRL and NYCHRL. Before the Court is
Defendants’ Motion for Summary Judgment (the “Motion”), ECF 52, filed on January 17, 2024.
For the reasons stated below, Defendants’ Motion is granted.
BACKGROUND
On November 28, 2019, Plaintiff, who is African-American, was hired as a part-time
customer sales representative at AutoZone Store 2917. Plaintiff’s Response to Defendants’ Rule
56.1 Statement of Undisputed Material Facts and Revised Counter-Statement of Material Facts
(“Plaintiff’s 56.1 Stmt and Revised Counter-Stmt”), ECF 45, ¶3. The decision to hire Plaintiff
was made by District Manager Sewell, who is also African-American. Id., ¶¶3–4. AutoZone has
an attendance policy that assigns so-called occurrence points for “excused” and “unexcused”
absences and tardies, based on whether an employee notified a manager in advance of their absence
or tardiness. Id., ¶16. An employee is considered to have abandoned their job if they do not report

to work for two consecutive shifts without notifying a manager. Id., ¶22.
In June 2020, Plaintiff transferred to AutoZone Store 4778, which was closer to his home,
after Defendant Sewell approved the transfer. Id., ¶¶25–27. At that time, Plaintiff and Defendant
Jaikeran, who is Guyanese, held equivalent positions. Initially, Jaikeran was a Parts Sales Manager
(“PSM”) with no authority to hire, fire, demote, promote, discipline, or write schedules for
employees. Id., ¶30. In August 2020, Jaikeran was promoted to Store Manager, which placed
him in a supervisory role over Plaintiff. Id., ¶49.
During the Covid-19 pandemic, AutoZone temporarily suspended disciplinary actions
related to attendance, although occurrence points were still recorded. Id., ¶23–24. The Parties
proffer different dates on which AutoZone instructed its employees to return to the standard

AutoZone attendance policy, with Defendants asserting that the temporary suspension ended “[i]n
July of 2020” and Plaintiff asserting that “AutoZone did not instruct its employees to return to he
standard AutoZone attendance policy until at least September 27, 2020,” pointing to an internal
AutoZone memorandum referencing the later date. Id, ¶31. By November 16, 2020, Plaintiff was
informed that the company would “restart the practice of issuing discipline for attendance policy
violations.” Id., ¶67. In July and August 2020, Plaintiff was scheduled to work between thirty-
seven to forty hours per week but did not work any hours during those weeks. Id., Ex. 8, ECF 45-
8 at AZ-0060–69. At his deposition, Plaintiff stated that he was “not exactly sure” why he failed
to report to work during those weeks, recounting that he “might have had scheduled time off. I’m
2
not sure but I definitely wasn’t stating that I had COVID.” Plaintiff’s Deposition Transcript (“Pl.’s
Dep.”), ECF 45-2 at 183:5-16. Contemporaneous AutoZone records suggest that Plaintiff told
AutoZone he left work after reporting “headaches” on July 10, 2020, responded only sporadically
to managements’ attempts to contact him, and on July 23, 2020 “mentioned that he wasn’t aware

of his scheduled days.” Plaintiff’s 56.1 Stmt and Revised Counter-Stmt, Ex. 17, ECF 45-17 at
AZ-00747–752.
Notwithstanding the more lenient pandemic attendance policy that was in place, in July
2020, other AutoZone employees, namely Anthony Ramroop and Terry James, were disciplined
for their attendance policy violations. Plaintiff’s 56.1 Stmt and Revised Counter-Stmt, ¶¶33, 36.
Plaintiff received his first written warning for his attendance policy violations on November 16,
2020, after he accumulated eight attendance points between September 27 and November 16,
2020. Id., ¶66.
Plaintiff alleges that “in July of 2020, and in the following months,” Jaikeran told a
customer, “I am going to fire everyone and hire my own people.” Id., ¶51. Plaintiff asserts that

he did not personally hear the alleged statement but was told about it by the customer. Id., ¶59.
Plaintiff also alleges that during the same time period, Jaikeran pointed to him and said, “You
don’t want to work,” and “I am only going to hire and promote my people. They work well and
we come from the same place.” Defendant’s Response to Plaintiff’s Counter-Statement of Facts,
ECF 52-2, ¶4.
Furthermore, Plaintiff alleges that, as Store Manager, Jaikeran reduced his hours and gave
them to Guyanese employees. Plaintiff’s 56.1 Stmt and Revised Counter-Stmt, ¶40. However,
Jaikeran testified that he was unaware of any Guyanese employees who worked at Store 4778
between July 2020 and January 2021 other than himself. Id., ¶41. Mr. Jaikeran is the only
3
employee who self-reported himself in AutoZone’s internal system as of Guyanese ethnicity. Id.,
¶43.
AutoZone records also indicate that Plaintiff’s hours were not reduced overall during the
period in which Jaikeran was Plaintiff’s supervisor. During the time period when Jaikeran was

not Plaintiff’s supervisor – from November 2019 through July 2020 – Plaintiff’s time records
reflect that he worked an average of about fourteen hours per week. Id., Ex. 8, ECF 45-8 at AZ-
00028–86. After Jaikeran became Plaintiff’s supervisor – from August 2020 through January 2021
– Plaintiff’s time records reflect that he still worked an average of about fourteen hours per week
during the weeks Plaintiff was available for work. Id.
In September 2020, Plaintiff was granted four weeks of medical leave due to surgery.
Jaikeran’s Deposition Transcript (“Jaikeran’s Dep.”), ECF 40-6 at 80:20–25. In October 2020,
Plaintiff’s availability became limited as he could only work evening shifts during the week to
accommodate his school schedule. Pl.’s Dep., ECF 38-2 at 107:7–18. On October 19, 2020,
Plaintiff had an excused absence. Plaintiff’s 56.1 Stmt and Revised Counter-Stmt, ¶57. Plaintiff’s

AutoZone attendance report reflects that on October 26, 2020, Plaintiff did not report for work and
did not notify any manager. Id., Ex. 11 at AZ-00131. Jaikeran attempted multiple times to contact
Plaintiff by phone on that date to confirm if he would appear for his shift. Pl.’s Dep., ECF 38-2 at
144:11–147:4. Plaintiff blocked Jaikeran’s calls. Plaintiff’s 56.1 Stmt and Revised Counter-Stmt,
¶59.
Sometime later, in October 2020, Plaintiff told Sewell that he was upset Jaikeran had
contacted him so many times on October 26. Id. Plaintiff also told Sewell what he heard from the
customer – that Jaikeran said he would “fire everyone and hire [his] own people.” Id. Sewell
testified to that conversation between he and Plaintiff, claiming that he interpreted Jaikeran’s
4
statement concerning hiring his own people to mean people that Jaikeran chose to hire, rather than
employees he inherited, which Sewell testified is something he has been told by many other Store
Managers when they were having coverage or staffing issues. Sewell’s Deposition Transcript
(“Sewell’s Dep.”), ECF 40-5 at 118:12–22.

Between November 1 and November 21, 2020, Plaintiff was only scheduled to work three
four-hour shifts. Id., Ex. 8, ECF 45-8 at AZ-00078–79. On November 2, 2020, Plaintiff had
another excused absence. Plaintiff’s 56.1 Stmt and Revised Counter-Stmt, ¶63. On November 6,
2020, Sewell emailed Regional Human Resources Manager Angel Callejas (“Callejas”) a list of
employees who had amassed more than twelve occurrence points, including Plaintiff, seeking
guidance. ECF 45, ¶64. On December 5, 2020, Plaintiff had another excused absence. Plaintiff’s
56.1 Stmt and Revised Counter-Stmt, ¶71. On December 8, 2020, Plaintiff was issued a second
written attendance policy violation warning by Sewell. Id., ¶72. Plaintiff testified that Sewell
never made any derogatory comments about Plaintiff’s race or national origin. Pl.’s Dep., ECF
45-2 at 140:15–22.

In the fall and winter of 2020, other employees received written discipline for attendance
violations. Plaintiff’s 56.1 Stmt and Revised Counter-Stmt, ¶69. Callejas testified that those other
individuals were of various races and were not known to have made any report of discrimination
or harassment. Id., ¶70.
The last day Plaintiff reported to work was January 4, 2021. Id., ¶77. He received points
for excused absences on January 6, 7, and 9, 2021. Id., ¶78. On January 9, 2021, Plaintiff informed
Jaikeran via telephone that he was scheduled to have surgery in the coming weeks but did not
specify the date. Id., ¶75. Plaintiff expected to continue being scheduled to work in January 2021
and was aware of his work schedule for the week following January 9. Id., ¶76; Pl.’s Dep., ECF
5
45-2 at 217:16–18. However, Plaintiff alleges that he had to self-quarantine to prevent contracting
Covid-19 prior to his surgery. Id. at 211:24–212:14. Plaintiff did not notify any manager that he
would be absent after January 9, 2021. Id. at 216:24–217:4. An AutoZone attendance report
reflects that Plaintiff did not report for his shifts on January 11, 12, 13, and 15, 2021, resulting in

the accumulation of twenty-four occurrence points. Plaintiff’s 56.1 Stmt and Revised Counter-
Stmt, Ex. 11 at AZ-00131.
Based on Plaintiff’s repeated no-shows, Callejas recommended to Regional Manager
Tammy Hamilton (“Hamilton”) that Plaintiff be discharged for violating the attendance policy.
Callejas’ Dep., ECF 45-5 at 103:7–104:7. Hamilton, who is “part African American,” was not
aware of Plaintiff’s race, national origin, or any discrimination complaints at the time of the
decision. Plaintiff’s 56.1 Stmt and Revised Counter-Stmt, ¶¶39, 87. Hamilton declared that
historically she has made hundreds of similar decisions regarding other employees without
knowledge of their races or national origins. Hamilton Declaration (“Hamilton Decl.”), ECF 38-
4, ¶9. Plaintiff was discharged on or about January 19, 2021. Id., ¶87.

On February 22, 2021, Plaintiff filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”) and the New York State Division of Human
Rights, alleging discrimination based on race and national origin. Plaintiff’s Opposition to
Defendants’ Motion for Summary Judgment, Ex. A, ECF 53-2 at 1–2.
STANDARD OF REVIEW
“A movant 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.’” Arkorful v. N.Y.C. Dep’t
of Educ., No. 18-CV-3455 (NG) (ST), 2024 WL 298999, at *6 (E.D.N.Y. Jan. 24, 2024) (quoting
Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Summary judgment is
6
appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Celotex Corp., 477 U.S. at 322.
“An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Frost v. N.Y.C. Police Dep’t, 980 F.3d 231, 242 (2d Cir. 2020)) (quoting
SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009)). “A fact is material if
it might affect the outcome of the suit under governing law.” Id.
“The movant bears the burden of ‘demonstrating the absence of a genuine issue of material
fact.’” Id. (quoting Celotex Corp., 477 U.S. at 323). “Once the moving party has asserted facts
showing that the non-movant’s claims cannot be sustained, ‘the nonmoving party must come
forward with specific facts showing that there is a genuine issue for trial.’” Arkorful v. N.Y.C.,
2024 WL 298999 at *7 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986)). “While circumstantial evidence may be sufficient to raise a genuine issue of material
fact precluding the grant of summary judgment, a party cannot survive a motion for summary
judgment by relying on mere speculation or conjecture as to the true nature of the facts.” Id.
(internal quotation marks and citations omitted).
“In determining whether there is a genuine issue of material fact, a court evaluates the
whole record, resolving all ambiguities and drawing all permissible factual inferences in favor of
the nonmovant.” Sylla v. N.Y. City Dep’t of Educ., 664 F. Supp. 3d 311, 322 (E.D.N.Y. 2023)
(citing Tracy v. Freshwater, 623 F.3d 90, 95 (2d Cir. 2010)). “It is a settled rule that credibility

assessments, choices between conflicting versions of the events, and the weighing of evidence are
matters for the jury, not for the court on a motion for summary judgment.” McClellan v. Smith,
439 F.3d 137, 144 (2d Cir. 2006).
7
“In cases that involve claims of discrimination or retaliation, courts must use ‘an extra
measure of caution’ in deciding whether to grant summary judgment ‘because direct evidence of
discriminatory intent is rare and such intent often must be inferred from circumstantial evidence
found in affidavits and depositions.’” Wheeler v. Praxair Surface Techs., Inc., No. 21 CIV. 1165

(PAE), 2023 WL 6282903, at *8 (S.D.N.Y. Sept. 26, 2023) (quoting Schiano v. Quality Payroll
Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006)). “But ‘the salutary purposes of summary judgment—
avoiding protracted, expensive and harassing trials—apply no less to discrimination cases.’” Id.
(quoting Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000)). “Thus, even in such a
case, a plaintiff must provide more than conclusory allegations to resist a motion for summary
judgment, and courts may grant summary judgment against discrimination claims in cases lacking
genuine issues of material fact.” Id. (internal quotations and citations omitted).
DISCUSSION

Plaintiff brings claims under Title VII, § 1981, the NYSHRL, and the NYCHRL for
employment discrimination on the basis of race or national origin. Plaintiff’s claims are for hostile
work environment, discrimination, and retaliation. Plaintiff also brings state law aiding and
abetting claims against Defendants Jaikeran and Sewell pursuant to the NYSHRL and NYCHRL.
Plaintiff’s claims derive from incidents that occurred from October 2020 through January 2021.
Defendants move for summary judgment on all of Plaintiff’s claims, arguing that that there are no
disputed issues of fact sufficient for Plaintiff to proceed to a trial by a factfinder.

8
A. Plaintiff’s Title VII and NYSHRL Claims
1. Hostile Work Environment
a. Claim Exhaustion
First, Defendants argue that because Plaintiff did not allege a hostile work environment

claim in his EEOC charge, Plaintiff failed to exhaust his administrative remedies concerning his
hostile work environment claims. However, the Court’s jurisdiction is proper not only concerning
issues specifically raised in Plaintiff’s EEOC charge, but also those claims “reasonably related” to
the charges alleged therein. Moore v. Dejoy, 600 F. Supp. 3d 332, 343 (S.D.N.Y. 2022) (“An
exception to the exhaustion requirement may be made for claims not formally asserted before the
agency if they are ‘reasonably related’ to those properly filed with the agency.”) (citing Williams
v. New York City Housing Authority, 458 F.3d 67, 70 (2d Cir. 2006)). “A claim is considered
reasonably related if the conduct complained of would fall within the scope of the [EEOC]
investigation which can reasonably be expected to grow out of the charge that was made.” Deravin
v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003). “This ‘fact-intensive’ inquiry focuses on whether ‘the

substance of the charge’ gave the agency ‘adequate notice to investigate discrimination on’ the
unalleged but reasonably related charge.” Sylla, 664 F. Supp. 3d at 323 (quoting Mathirampuzha
v. Potter, 548 F.3d 70, 76–77 (2d Cir. 2008) (“The central question is whether the complaint filed
with the EEO gave the agency adequate notice to investigate discrimination on both bases.”)).
“Claims based on ‘a wholly different type of discrimination than initially asserted in the [EEO]
charge’ will not generally be permitted.” Atencio v. U.S. Postal Serv., No. 1:14-CV-7929-GHW,
2015 WL 7308664, at *6 (S.D.N.Y. Nov. 19, 2015) (quoting Best v. Duane Reade Drugs, No. 14-
cv-2648 (CM), 2014 WL 5810105, at *4 (S.D.N.Y. Nov. 6, 2014).

9
Here, Plaintiff expressly alleged in his EEOC charge that he “was discriminated against
based on my race (African American), National Origin (American) with respect to harassment,
reduced work hours, write ups with threats of termination and being the only one written up for a
time switch and being threatened with termination, and discharged in retaliation.” Ex. A, ECF 53–

2 at 2. Plaintiff described in sufficient detail the alleged harassment he faced based on his race or
national origin at the hands of Defendant Jaikeran, claiming his “work hours were reduced to 4
hours per week by Mike and was told that the district manager also approved my hour reductions
but was told that they were giving the hours to the Guyanese workers…I was also repeatedly
denied pandemic time off for the times I had to quarantine but was made aware that they allowed
a Guyanese individual named Duncan pandemic time off…Mike also allowed Guyanese workers
paid lunches as well as allowed the ones that did clock out to clock back in earlier from lunch but
made se the non-Guyanese workers clocked out.” Id. at 1–2.
Because Plaintiff’s claim that he was subjected to a hostile work environment is also based
on his race and national origin, the Court finds that it is reasonably related to his charge of

discrimination insofar as an investigation of his race and national origin-based discrimination
claim would require inquiry into the same facts necessary to bring a hostile work environment
claim based on race or national origin. Plaintiff’s EEOC charge was sufficient to put the agency
on notice of his race and national origin-based hostile work environment claim. Therefore,
plaintiff’s hostile work environment claim can be properly considered at this stage. See Sylla, 664
F. Supp. 3d at 323 (finding plaintiff’s Title VII hostile work environment claim was reasonably
related to the allegations in his EEOC charge because it was “based on the racial harassment by
[defendant] that plaintiff described in his administrative charge”); Montanez v. City of New York,
No. 09CV5652 (SJ) (SMG), 2012 U.S. Dist. LEXIS 87149, at *6 (E.D.N.Y. June 22, 2012) (same).
10
b. Prima Facie Case
Next, Defendants argue that all of Plaintiff’s federal and state law hostile work
environment claims should be dismissed due to Plaintiff’s inability to make out a prima facie case
of a hostile work environment. Motion, ECF 53-1, at 13. To survive summary judgment on a

hostile work environment claim under Section 1981 or the NYSHRL, “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.” Littlejohn v. City of N.Y., 795 F.3d 297, 320-21 (2d Cir. 2015); accord
Lenart v. Coach, Inc., 131 F. Supp. 3d 61, 66 (S.D.N.Y. 2015) (applying same standard under
NYSHRL); Smith v. Town of Hempstead Dep't of Sanitation Sanitary Dist. No. 2, 798 F. Supp. 2d
443, 451 (E.D.N.Y. 2011) (“The standard for showing a hostile work environment under . . .
Section 1981. . . and the [NYSHRL] is essentially the same.”).
“[A] plaintiff who alleges hostile work environment claims must identify sufficient record
facts that would allow a jury ‘to conclude that the work environment both objectively was, and

subjectively was perceived by the plaintiff to be, sufficiently hostile to alter the conditions of
employment for the worse.’” Turner v. MTA Metro-N. R.R., No. 17-CV-9168 (VSB), 2024 U.S.
Dist. LEXIS 47883, at *28–29 (S.D.N.Y. Mar. 19, 2024) (quoting Schiano v. Quality Payroll Sys.,
Inc., 445 F.3d 597, 604 (2d Cir. 2006). “The objective and subjective components include that
‘the conduct complained of must be severe or pervasive enough that a reasonable person would
find it hostile or abusive, and the victim must subjectively perceive the work environment to be
abusive.’” Id. at *29 (quoting Littlejohn, 795 F.3d at 321). “A subjective perception that the work
environment was hostile is necessary but not alone sufficient. Accordingly, the ‘mere utterance of
an epithet which engenders offensive feelings in a[n] employee does not sufficiently affect the
11
conditions of employment’ so as to create an actionable hostile work environment claim.” Id.
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993).
A plaintiff must establish that he suffered more than a handful of episodic incidents of
harassment in order to prevail on a hostile workplace environment claim. Id. at *29 (“Moreover,

a plaintiff must allege that the incidents were ‘more than episodic; they must be sufficiently
continuous and concerted in order to be deemed pervasive.’”) (quoting Littlejohn, 795 F.3d at 321);
see also Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 724 (2d Cir. 2010) (“The
plaintiff must show more than a few isolated incidents of racial enmity.”) (internal quotation marks
and alterations omitted). “Incidents that are few in number and that occur over a short period of
time may fail to demonstrate a hostile work environment.” Whidbee v. Garzarelli Food
Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000) (internal quotation marks omitted).
“However, ‘even a single act can meet the threshold if, by itself, it can and does work a
transformation of the plaintiff's workplace.’” Turner, No. 17-CV-9168 (VSB), 2024 U.S. Dist.
LEXIS 47883, at *30 (quoting Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002)). “[C]onduct

not directly targeted at or spoken to an individual but purposefully taking place in his presence can
nevertheless transform his work environment into a hostile or abusive one.” Rasmy v. Marriott
Int’l Inc., 952 F.3d 379, 389 (2d. Cir. 2020). “For racist comments, slurs, and jokes to constitute
a hostile work environment, there must be more than a few isolated incidents of racial enmity,
meaning that instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial
comments. Thus, whether racial slurs constitute a hostile work environment typically depends
upon the quantity, frequency, and severity of those slurs, considered cumulatively in order to
obtain a realistic view of the work environment.” Schwapp v. Town of Avon, 118 F.3d 106, 110-
11 (2d Cir. 1997) (internal citations and quotation marks omitted). “Where reasonable jurors could
12
disagree as to whether alleged incidents of racial insensitivity or harassment would have adversely
altered the working conditions of a reasonable employee, the issue of whether a hostile work
environment existed may not properly be decided as a matter of law.” Patterson v. Cty. of Oneida,
375 F.3d 206, 227 (2d Cir. 2004)

Here, Defendants argue that the comments Jaikeran allegedly made to a customer – but not
directly to Plaintiff – do not give rise to a legally cognizable hostile work environment. They
assert that no reasonable juror could conclude that the comments were motivated by Plaintiff’s
race or national origin, nor that they created a severe or pervasive condition of employment.
Motion, ECF 52-1, at 14. The Court agrees.
Both Defendants Sewell and Jaikeran had supervisory authority over Plaintiff. ECF 52-2,
¶2. Plaintiff testified that Sewell never made any derogatory comments about Plaintiff’s race or
national origin. Pl.’s Dep., ECF 38-2 at 140:15–22. As to Defendant Jaikeran, Plaintiff points to
two isolated comments Jaikeran allegedly made during the course of Plaintiff’s employment,
which Plaintiff argues raises questions as to the existence of a hostile work environment. First,

Jaikeran allegedly told a customer, but not Plaintiff directly, that “[He was] going to fire everyone
and hire [his] own people,” ECF 45, ¶51. Second, Plaintiff testified that, on another occasion,
Jaikeran pointed to Plaintiff and said, “You don’t want to work,” and “I am only going to hire and
promote my people. They work well and we come from the same place,” Opposition, ECF 53-1,
at 8. Plaintiff argues these comments are explicitly discriminatory and tied to Plaintiff’s protected
characteristics. Id. Therefore, Plaintiff argues, the entire course of conduct is relevant to his hostile
work environment claim. Id.
However, these isolated statements made no mention of race or national origin on their
face and did not take place under circumstances where a discriminatory meaning can be reasonably
13
inferred. Defendant Sewell, who is African American like Plaintiff, testified that when Plaintiff
told him Jaikeran said he wanted to hire “[his] own people,” Sewell interpreted this to mean people
Jaikeran chose to hire rather than employees he inherited, which is something many other Store
Managers have said to Sewell when they were having coverage or staffing issues. Sewell’s Dep.,

ECF 40-5 at 118:12–22. The Court finds this interpretation reasonable. Defendant Jaikeran did
in fact inherit Plaintiff as an employee. ECF 45, ¶27, 32, 49. When Plaintiff began working at
Store 4778 in June 2020, Jaikeran was a PSM and had no authority to hire, fire, demote, promote,
discipline, or write schedules for employees. ECF 45, ¶28, 30. But Jaikeran was promoted to
Store Manager in August 2020, ECF 45, ¶49, and between that point in time and Plaintiff’s October
2020 complaint to Sewell, Plaintiff had been absent from work for six consecutive weeks. Ex. I,
ECF 38-10 at AZ-00028–86. Plaintiff himself admitted that if an employee failed to report to
work, that would complicate AutoZone’s business operations. Pl.’s Dep., ECF 38-2 at 118:8–18.
Accordingly, the Court finds that these alleged, isolated statements by Jaikeran, without
more, are insufficient to establish a hostile work environment claim. See Brown v. Montefiore

Med. Ctr., No. 19-cv-11474 (ALC), 2024 U.S. Dist. LEXIS 61601, at *23-24 (S.D.N.Y. Mar. 30,
2024) (quoting Svenningsen v. Coll. of Staten Island, No. 01-CV-7550, 2003 U.S. Dist. LEXIS
25816, at *2 (E.D.N.Y. Mar. 28, 2003) (“While ‘the incidents comprising a hostile work
environment claim need not make reference to any trait or condition on the basis of which the
discrimination has occurred’ they must occur under circumstances in which ‘the incidents can
reasonably be interpreted as having taken place on the basis of that trait or condition.’”); see also
Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002) (“Facially neutral incidents may be sufficient
to establish a hostile work environment claim ‘so long as a reasonable fact finder could conclude

14
that they were, in fact, based on [race]. But this requires some circumstantial or other basis for
inferring that incidents [race]-neutral on their face were in fact discriminatory.’”).
Here, the Court finds that Jaikeran’s comments were facially neutral and finds no
circumstantial or other basis for finding that the comments were in fact discriminatory. Moreover,

in any event, the comments were not sufficiently severe or pervasice to establish a hostile work
environment. Brown v. Coach Stores, 163 F.3d 706, 708 (2d. Cir. 1998) (Although plaintiff’s
allegations that she was “told by her supervisors that Coach ‘seeks to hire and promote people who
have a ‘Coach look’ -- the examples to whom her supervisors referred were young non-minority
persons” and “one of her supervisors made several discriminatory remarks about minorities” were
found to be “despicable and offensive, they fail[ed] to constitute discriminatory behavior that is
sufficiently severe or pervasive to cause a hostile work environment.”). Although Plaintiff may
have found Jaikeran’s remarks offensive, the combination of these comments, the allegedly
reduced hours, Opposition, ECF 53–1, at 14, and the disciplinary actions linked to chronic
absenteeism, id; Motion, ECF 52-1, at 1, does not meet the threshold necessary for a juror to

conclude a hostile work environment existed based on race or national origin.
c. Imputing Liability to Defendants Sewell and AutoZone
Even if Plaintiff had adequately pleaded a severely or pervasively hostile work
environment – and he has not – Plaintiff also needed to establish a basis for imputing liability to
Defendants AutoZone and Sewell. Maiurano v. Cantor Fitzgerald Sec., 2021 U.S. Dist. LEXIS
3762, at *13 (S.D.N.Y. Jan. 8, 2021). “If … harassment is perpetrated by a supervisor within the
meaning of Title VII, the employer is strictly liable, ‘unless the employer is able to establish an
affirmative defense showing that it exercised reasonable care to prevent and correct any harassing
behavior and that the plaintiff unreasonably failed to take advantage of any preventive or corrective
15
opportunities provided by the employer to avoid harm otherwise.’” Id. at *13-14 (quoting
Wiercinski v. Mangia 57, Inc., 787 F.3d 106, 113 (2d Cir. 2015)).
In October 2020, Plaintiff reported to Sewell his frustration that Jaikeran had repeatedly
contacted him on October 26, 2020, to confirm his shift attendance, leading Plaintiff to block

Jaikeran's calls. Pl.’s Dep., ECF 38-2 at 144:11-25, 145–146, 147:2–4; Plaintiff’s 56.1 Stmt and
Revised Counter-Stmt, ¶59. AutoZone records confirm that Plaintiff was absent on that date,
marking the absence as “Unexcused – Failure to Report.” Id., Ex. 11 at AZ-00131. During the
same conversation, Plaintiff relayed a customer’s claim that Jaikeran intended to “fire everyone
and hire [his] own people.” Sewell, however, did not interpret Jaikeran’s statement as racially
motivated or constituting harassment. Sewell’s Dep., ECF 40-5 at 118:12–22.
Evaluating these facts, the Court finds no indication that Defendants “knew (or reasonably
should have known) about the harassment but failed to take appropriate remedial action.”
Petrosino v. Bell Atl., 385 F.3d 210, 225 (2d Cir. 2004). Plaintiff’s allegations do not support that
Sewell was, or should have been, aware of discriminatory or harassing conduct by Jaikeran.

Instead, they suggest Jaikeran’s actions were motivated by Plaintiff’s consistent absenteeism,
acknowledged by both parties to adversely affect staffing and customer service. ECF 45, ¶18.
Thus, Plaintiff has failed to plead sufficient facts supporting a basis for Defendants AutoZone and
Sewell to be held liable for Jaikeran’s alleged discriminatory conduct.
Accordingly, the Court finds Plaintiff’s Title VII and NYSHRL hostile work environment
claims fail as a matter of law, and summary judgment with respect to these claims is granted.
2. Discrimination
“Under Title VII and the NYSHRL, discrimination claims based on race, color, religion,
and national origin are analyzed under the familiar three-step burden-shifting framework
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established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668
(1973).” Espinoza v. N.Y.C. DOT, 304 F. Supp. 3d 374, 387 (S.D.N.Y. 2018). See Tolbert v.
Smith, 790 F.3d 427, 434 (2d Cir. 2015) (stating that Title VII and NYSHRL claims are governed
by the McDonnell Douglas standard); Ruiz v. Cty. of Rockland, 609 F.3d. 486, 491 (2d Cir. 2010)

(same for Section 1981 claims).
Under the McDonnell Douglas burden-shifting framework “a plaintiff must first establish
a prima facie case of Title VII discrimination ‘by showing that: (1) [he] is a member of a protected
class; (2) [he] is qualified for [his] position; (3) [he] suffered an adverse employment action; and
(4) the circumstances give rise to an inference of discrimination.’” Cruz v. 32BJ SEIU, No. 22-
2753, 2024 U.S. App. LEXIS 3836, at *3 (2d Cir. Feb. 20, 2024) (quoting Vega v. Hempstead
Union Free Sch. Dist., 801 F.3d 72, 83 (2d Cir. 2015)). “Once the plaintiff establishes a prima
facie case, the burden shifts to the [employer] to offer ‘some legitimate, nondiscriminatory reason’
for the differing treatment.” Id. (quoting McDonnell Douglas, 411 U.S. at 802). “If the [employer]
offers such a reason for its actions, the burden shifts back to the plaintiff to demonstrate that the

proffered reason was pretextual, or that race discrimination was still a motivating factor of the
[employer]’s decision.” Id. (citing Holcomb v. Iona College, 521 F.3d 130, 141-42 (2d Cir. 2008)).
Plaintiff’s complaint must provide the “bits and pieces of information” necessary “to
support an inference of discrimination, i.e., a mosaic of intentional discrimination[.]” Id. at 86
(internal quotation marks and citation omitted). “[A]bsent direct evidence of discrimination,” each
part of the four-part test laid out in Vega “must be plausibly supported by facts alleged in the
complaint[.]” Littlejohn v. City of N.Y., 795 F.3d 297, 311 (2d Cir. 2015). A plaintiff must
adequately allege that his protected characteristic “was a motivating factor in [defendant's]
decision to” terminate him. Gong v. City Univ. of N.Y., 846 F. App’x 6, 8 (2d Cir. 2021). The
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standard under the NYCHRL requires a plaintiff must plead “that []he is treated ‘less well’–
because of a discriminatory intent.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d
102, 110 (2d Cir. 2013).
a. Protected Class

The parties do not dispute that “Plaintiff is an African American man and is therefore a
member of a protected class under Title VII, § 1981, and the NYSHRL.” Dingle v. Riverbay Corp.,
No. 21-CV-01349 (ALC) (JLC), 2024 U.S. Dist. LEXIS 57550, at *14 (S.D.N.Y. Mar. 29, 2024).
b. Qualified
As to the second element, “to establish qualification, ‘all that is required is that the plaintiff
establish basic eligibility for the position at issue.’” Id. (quoting Kaboggozamusoke v. Rye Town
Hilton Hotel, 370 Fed. App’x. 246, 248 n.1 (2d Cir. 2010)). “[W]here discharge is at issue and
the employer has already hired the employee, the inference of minimal qualification is not difficult
to draw.” Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001) (alteration,
citations and internal quotation marks omitted). “However, a trail of negative performance reviews

can serve as evidence that a plaintiff is not qualified for his position.” Weber v. City of N.Y., 973
F. Supp. 2d 227, 253 (E.D.N.Y. 2013) (collecting cases). “A plaintiff cannot establish that he
performed his duties satisfactorily when defendant ‘offered a trail of performance reviews and
improvement plans that document plaintiff's deteriorating performance.’” Dingle, 2024 U.S. Dist.
LEXIS 57550, at *14 (quoting Bailey v. Frederick Goldman, Inc., No. 02 CIV. 2429 (TPG), 2006
WL 738435, at *3 (S.D.N.Y. Mar. 23, 2006)). “Where, as here, an employer presents evidence of
unsatisfactory work performance as a legitimate reason for an adverse employment action, a
plaintiff must rebut those reasons to survive a summary judgment motion.” Rivera v. Greater
Hudson Valley Health Sys. (Now Known as Garnet Health), No. 21-CV-1324 (NSR), 2023 WL
18
2588308, at *11 (S.D.N.Y. Mar. 21, 2023) (citing Wheeler v. Corp. Couns. of N.Y.C., No. 93 CIV.
5184 (NRB), 2000 WL 1760947, at *5 (S.D.N.Y. Nov. 30, 2000), aff'd, 28 F. App’x 90 (2d Cir.
2002)).
The parties disagree as to whether Plaintiff was qualified for his position. Plaintiff asserts

that there is a question of fact regarding whether he was qualified, pointing out that Defendants
believed he was qualified initially when they hired him for the position. Opposition, ECF 53-1, at
13–14. Conversely, Defendants argue that Plaintiff cannot be considered qualified due to his
chronic attendance issues, which they assert adversely affected both customer service and other
employees. Motion, ECF 52-1, at 19.
Defendants have offered a trail of negative performance reviews as evidence of Plaintiff’s
unsatisfactory work performance. AutoZone’s business records show that Plaintiff accumulated
twenty-four occurrence points – twice the allowable limit under AutoZone’s attendance policy –
due to his absences on January 11, 12, 13, and 15, 2020. Plaintiff’s 56.1 Stmt and Revised Counter-
Stmt, Ex. 11 at AZ-00131; Callejas’ Dep., ECF 38-5 at 103:22–104:1. Plaintiff further testified

that on January 9, he informed Jaikeran about his upcoming surgery and the need to self-quarantine
beforehand, which would require him to be absent from work to prevent contracting Covid-19. Id.
at 211:24–212:20. Plaintiff alleges that Jaikeran responded by laughing and saying, “Okay.” Id.
at 216:22. Despite conveying this information to Jaikeran, Plaintiff also testified that he expected
Jaikeran to “[s]till put [him] on the schedule” after January 9, 2020 Id. at 215:15. At his
deposition, when Plaintiff was questioned about whether he had informed Jaikeran that he would
not be returning to work after January 9, Plaintiff answered, “No, I did not tell him anything like
that.” Pl.’s Dep., ECF 38-2 at 216:24–217:4. Furthermore, AutoZone records show that during
four weeks in July and August 2020, Plaintiff was scheduled for thirty-seven to forty hours per
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week, yet he did not report to work at all during these periods. Ex. I, ECF 38-10 at AZ-0060–69.
When questioned on the reason for his no-calls and no-shows on those dates, Plaintiff stated that
he was “not exactly sure” why he failed to report to work during those weeks. Pl.’s Dep., ECF 38-
2 at 183:5–16.

AutoZone’s attendance policy explicitly states that failure to report for two consecutive
shifts without notifying a manager constitutes job abandonment. ECF 45, ¶22. Here, Defendants
have presented substantial evidence of Plaintiff’s unsatisfactory work performance, culminating
in what they characterize as job abandonment after repeated missed shifts. Plaintiff’s own
testimony, wherein he confirmed that he expected to be scheduled for shifts after January 9 and
did not inform Jaikeran of his unavailability following January 9, confirms this characterization.
Such pattern of non-attendance provides a legitimate basis for Plaintiff’s termination. “Because
Plaintiff fails to point to evidence on the record . . . contradicting the documentary evidence on the
record, the Court finds that Plaintiff has not adequately rebutted Defendant[s’] arguments that he
was [not] qualified for his position.” Rivera, 2023 WL 2588308, at *11.

Although Plaintiff has not succeeded in proving one of the requisite elements necessary to
establish a prima facie case of discrimination on the basis of race or national origin, the Court will
nevertheless proceed to examine whether the Plaintiff has satisfactorily established the other
essential elements of the claim.
c. Adverse Employment Action
“The category of employment decisions that constitute adverse actions is ‘broad’ in scope.”
Banks v. GM, LLC, 81 F.4th 242, 269 (2d Cir. 2023) (quoting Treglia v. Town of Manlius, 313 F.3d
713, 720 (2d Cir. 2002)). “Examples of adverse employment actions include ‘termination of
employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a
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material loss of benefits, significantly diminished material responsibilities, or other indices . . .
unique to a particular situation.’” Id. (quoting Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003)).
For the purposes of this motion, the Court will accept the contention that Plaintiff suffered
an adverse employment action when he was terminated from his job, either in retaliation for

engaging in a protected activity, or because he belonged to a protected class. Opposition, ECF 53-
1, at 14. See Dingle, No. 21-CV-01349 (ALC) (JLC), 2024 U.S. Dist. LEXIS 57550, at *16
(accepting plaintiff’s contention that he suffered an adverse employment action when he was
terminated even though plaintiff failed to establish the second and final prongs of a prima facie
case of discrimination on the basis of race or national origin).
d. Circumstances Giving Rise to an Inference of Discrimination
“A plaintiff may demonstrate circumstances giving rise to an inference of discrimination
by alleging that he was treated less favorably than similarly situated employees of other races or
national origins.” Brown v. Daikin Am., Inc., 756 F.3d 219, 229 (2d Cir. 2014) (citing Graham v.
Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)). “When relying on evidence of disparate

treatment, a plaintiff must show he was ‘similarly situated in all material respects to the individuals
with whom [ ]he seeks to compare [him]self.’” Marquez v. Starrett City Assocs., 406 F. Supp. 3d
197, 209 (E.D.N.Y. 2017) (quoting Mandell v. County of Suffolk & John Gallagher, 316 F.3d 368,
379 (2d Cir. 2003)). “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.” Ruiz, 609 F.3d at 493-94 (internal quotations omitted).
Here, Plaintiff asserts that “Defendants applied their more lenient COVID attendance
policy to other employees, [but] did not apply it to Plaintiff.” ECF 52-2, ¶ 20. However, the
evidence suggests otherwise. Although AutoZone announced a temporary suspension of
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disciplinary actions for attendance during the pandemic, with points still being recorded, ECF 45,
¶ 23-24; Ex. 14, ECF 40-16 at AZ-00381, the record shows that in July 2020 – while the policy
was ostensibly still in effect – AutoZone disciplined other employees, such as Anthony Ramroop
and Terry James, for attendance violations. Ex. F, ECF 38-2 at AZ-00975; Ex. H, ECF 38-9 at

AZ-00974. Furthermore, AutoZone did not revert to its standard attendance policy until at least
September 27, 2020. Ex. 14, ECF 40-16 at AZ-00381. Despite Plaintiff not showing up for
scheduled shifts totaling thirty-seven to forty hours per week during July and August, his first
written warning for attendance did not occur until November 16, 2020, after he had accrued eight
additional attendance points between September 27 and November 16, 2020. Ex. I, ECF 38-10 at
AZ-0060–69; ECF 45, ¶66. This timeline indicates that Defendants did apply their more lenient
Covid-19 policy to Plaintiff, contrary to his claims.
Additionally, Plaintiff alleges that Jaikeran, upon becoming Store Manager, favored
employees of Guyanese descent over Plaintiff, who is not Guyanese. ECF 52-2, ¶5. Plaintiff
offers no documentary evidence to support this claim. In contrast, Jaikeran testified that he was

unaware of any other Guyanese employees at the store besides himself, Jaikeran’s Dep., ECF 38-
6 at 74:9–23, and company records corroborate that only Jaikeran identified as Guyanese during
the relevant period. Ex. 19, ECF 40-21 at AZ-00966. The parties do not dispute that numerous
employees, irrespective of race, were disciplined for attendance violations in late 2020. ECF 45,
¶69. Callejas’ testimony further indicates that those disciplined were of various races and had not
reported discrimination or harassment. ECF 45, ¶70. This evidence contradicts Plaintiff’s
assertion that his termination for alleged job abandonment was a pretext for discrimination.
Opposition, ECF 53-1, at 17–19. Plaintiff has not provided evidence of another similarly situated
non-African-American employee who amassed in a similar number of attendance violations but
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did not face discipline or was treated more favorably than Plaintiff was. This lack of evidence
weakens Plaintiff’s claim that his termination took places under circumstances giving rise to an
inference of discrimination.
Finally, it is an undisputed fact that Regional Manager Hamilton, who decided to terminate

Plaintiff and who is also African American, was unaware of Plaintiff’s race or national origin at
the time of her termination decision, and unaware of any complaints of harassment or
discrimination purportedly made by Plaintiff. ECF 45, ¶87. Callejas, the person who
recommended Plaintiff’s discharge, stated that the decision was based on Plaintiff’s repeated
failures to report for work in January 2021, leading to the accumulation of twenty-four attendance
points. Callejas’ Dep., ECF 38-5 at 103:7–104:7. Under AutoZone’s attendance policy, failure to
report for two consecutive shifts without notifying a manager constitutes job abandonment. ECF
45, ¶22. Callejas further testified that he has recommended the discharge of many other
employees, across various races and ethnicities, for similar violations of the attendance policy. Id.
at 103:7–104:7, 104:19–24. The decision to terminate Plaintiff was thus based on his job

abandonment, confirmed by the significant number of attendance points he accrued.
Additionally, Regional Manager Hamilton declared that she has made similar decisions to
discharge hundreds of individuals for job abandonment, without knowledge of their races or
national origins, “Hamilton Decl.”, ECF 38-4, ¶9, which underscores the non-discriminatory
nature of AutoZone’s disciplinary practices and supports the legitimacy of the decision regarding
Plaintiff’s termination.
When examining the totality of the circumstances, the Court finds that Plaintiff has not
shown that his termination was motivated by discrimination. “Because Plaintiff has not met his
burden to establish a prima facie case of discrimination, the Court need not reach further analysis
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under the McDonnell Douglas test.” Dingle, No. 21-CV-01349 (ALC) (JLC), 2024 U.S. Dist.
LEXIS 57550, at *20-21.
Thus, Plaintiff has failed to plead facts necessary to support his discrimination claims under
Title VII, § 1981 and NYSHRL, and summary judgment with respect to these claims is granted.

3. Retaliation
Defendants challenge Plaintiff’s retaliation claims, arguing that he cannot establish a prima
facie case due to a lack of evidence that Regional Manager Hamilton was aware of any protected
activity by Plaintiff. Motion, ECF 52-1, at 21–22. “Retaliation claims under Title VII and the
NYSHRL, like discrimination claims, are analyzed under the McDonnell Douglas burden-shifting
framework.” Zheng-Smith v. Nassau Health Care Corp., No. 20-3544-cv, 2021 U.S. App. LEXIS
27084, at *7-8 (2d Cir. Sep. 9, 2021). “To state a prima facie claim for retaliation under Title VII,
§1981, and the NYSHRL, a plaintiff must demonstrate that: (1) he participated in a protected
activity; (2) the defendant was aware of his protected activity; (3) he suffered an “adverse
employment action;” and (4) there is a causal connection between the protected activity and the

adverse employment action.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 844 (2d Cir. 2013).
A causal connection is established “by showing that the protected activity was followed
closely by the discriminatory treatment.” Hicks v. Baines, 593 F.3d 159, 170 (2d Cir. 2010)
(internal quotation marks and citations omitted). “An employee engaged in a ‘protected activity’
‘need not establish that the conduct he opposed was in fact a violation of Title VII, but rather, only
that he had a good faith, reasonable belief that the underlying employment practice was unlawful.’”
Dingle, No. 21-CV-01349 (ALC) (JLC), 2024 U.S. Dist. LEXIS 57550, at *21 (quoting Reed v.
A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996). “A mere mention of feeling
‘discriminated against’ is not enough to put an employer on notice of a protected complaint if
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‘nothing in the substance of the complaint suggests that the complained-of activity is, in fact,
unlawfully discriminatory.’” Moore v. City of N.Y., 745 F. App’x 407, 409 (2d Cir. 2018) (quoting
Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 17 (2d Cir. 2013)).
Defendants argue that Plaintiff did not effectively communicate any discrimination

complaints to Sewell in October 2020 because Plaintiff’s statement to Sewell lacked sufficient
detail that would have permitted Sewell to believe Jaikeran was discriminating against Plaintiff on
the basis of race or national origin. See Motion, ECF 52-1, at 21–22. Sewell interpreted Plaintiff’s
remarks – that Jaikeran had expressed a desire to “fire everyone and hire [his] own people,” ECF
45, ¶51 – as a wish to select his own team rather than a declaration of intent to discriminate. This
interpretation is consistent with comments Sewell noted from other Store Managers who faced
similar staffing issues. Sewell’s Dep., ECF 40-5 at 118:12–22. Plaintiff’s broad statement to
Sewell was too vague for a fact-finder to decide Plaintiff was retaliated against for his statement.
Even if Plaintiff’s statement qualified as a protected activity, it lacks a causal connection
to any adverse employment action. Plaintiff contends that his termination was a retaliatory act

disguised by a purportedly legitimate, non-discriminatory reason – his alleged job abandonment.
Opposition, ECF 53-1, at 23. However, the decision to terminate Plaintiff’s employment was made
by Regional Manager Hamilton, who, at the time, was reportedly unaware of any discrimination
complaints lodged by Plaintiff. ECF 45, ¶87. Given that Plaintiff cannot establish a causal
connection between his termination and any alleged protected activity, he cannot establish a claim
of retaliation under any statute.
Accordingly, Plaintiff’s retaliation claims under Title VII, §1981, and the NYSHRL are
dismissed for failure to allege a protected activity, or a connection to an adverse employment
action.
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4. State Law Aiding and Abetting Claims
Plaintiff argues Defendant Sewell aided and abetted the alleged discrimination against
Plaintiff under § 296(6) of the NYSHRL, and the NYCHRL. Opposition, ECF 53-1, at 24–25.
However, because Plaintiff cannot establish any hostile work environment, discrimination, or

retaliation claims against the Defendants, he cannot maintain an aiding and abetting claim against
any Defendant. Thus, those claims must be dismissed. Zheng-Smith v. Nassau Health Care Corp.,
486 F. Supp. 3d 611, 625 (E.D.N.Y. 2020) (“Because the court now dismisses all of Plaintiff's
other claims under NYSHRL, there was no forbidden act to aid or abet and Defendants are entitled
to summary judgment on this claim.”).
B. Plaintiff’s Remaining Claims
Lastly, Plaintiff asserts claims of a hostile work environment, discrimination, and
retaliation under the less stringent NYCHRL.
A district court “may decline to exercise supplemental jurisdiction over a claim” once it
“has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c); see also

United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966)
(“[I]f the federal claims are dismissed before trial . . . the state claims should be dismissed as
well.”); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S. Ct. 614, 98 L. Ed. 2d 720 n.7
(1988) (“[I]n the usual case in which all federal-law claims are eliminated before trial, the balance
of factors to be considered under the pendent jurisdiction doctrine . . . will point toward declining
to exercise jurisdiction over the remaining state-law claims.”).
Here, in its discretion, the Court declines to exercise supplemental jurisdiction over the
remaining state law claims.

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CONCLUSION
For the reasons set forth, Defendant’s motion to for summary judgment is hereby
GRANTED. The Clerk of Court is directed to enter judgment in favor of Defendants,
dismiss Plaintiff’s Complaint in its entirety, and close this case.
SO ORDERED

__/s/_______________________
ORELIA E. MERCHANT
United States District Judge
Dated: July 12, 2024
Brooklyn, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10659029. Public record. Not legal advice.