Petition for Writ of Certiorari — Othniel Evans Maragh, Petitioner v. Roosevelt Island Operating Corporation, et al.
Supreme Court briefMar 16, 2023
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INDEX OF APPENDICES
APPENDIX A
Maragh v. RIOC, No. 21-2129, U.S. Court of Appeals for
the Second Circuit. Judgment entered October 25, 2022.
APPENDIX B
Maragh v. RIOC, No. 16-CV-7530, U.S. District Court for
the Southern District of New York. Judgment entered
August 5, 2021.
APPENDIX C
Maragh v. RIOC, No. 21-2129, U.S. Court of Appeals for
the Second Circuit
Petition for Rehearing or Rehearing En Banc, Submitted
on November 8, 2022
Petition Denied, Judgment Entered December 16, 2022
7
\
21-2129-cv
Maragh v. Roosevelt Island Operating Corp.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPFII ATE PROCEDURE 32 1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONICDATABASE(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 25‘h day of October, two thousand twenty-two.
PRESENT:
DEBRA ANN LIVINGSTON.
ChiefJudge,
AMALYA L. KEARSE,
MICHAEL H. PARK,
Circuit Judges.
Othniel Evans Maragh,
Plaintiff-Appellant,
v.
Roosevelt Island Operating Corporation, Charlene Indelicate, Claudia
McDade, Muneshwar Jagdharry, John McManus, Rudolph Rajaballey,
Sean Singh, Steven Friedman, Nancy Zee, John and Jane Does 1 2 3,
21-2129
Defendants-Appellees.1
1 The Clerk of Court is respectfully directed to amend the official caption in this case to
conform to die caption above.
1
Aff
FOR PLAINTIFF-APPELLANT:
Othniel Evans Maragh,
pro se, Mount Vernon, NY.
FOR DEFEND ANTS-APPELLEES:
Holly G. Rogers, Melick &
Porter, LLP, New York, NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Furman,«/.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Othniel Maragh, proceeding pro se on appeal, sued his former employer—the
Roosevelt Island Operating Company (“RIOC”)-and several former coworkers and supervisors,
alleging that they unlawfully discriminated against him and created a hostile work environment in
violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), the New York State Human
Rights Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”). The
district court granted the defendants’ motion for summary judgment on Maragh’s Title VII and
NYSHRL claims and declined to exercise supplemental jurisdiction over his NYCHRL claims.
We assume the parties’ familiarity with the underlying facts, the procedural history of the case,
and the issues on appeal.
This Court reviews orders granting summary judgment de novo, “resolvfingj all
ambiguities and drawing] all reasonable inferences in the light most favorable to the nonmoving
party.” Summa V. Hofstra Univ., 708 F.3d 115, 123 (2d Cir. 2013). Summary judgment is
appro priate only if“there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute exists “if the evidence
2
is such that a reasonable jury could return a verdict for the nonmoving party.” Gorzynski v.
JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010) (internal quotation marks and citation
omitted).
I.
Race and Gender Discrimination Claims
Claims under Title VII are analyzed under the, McDonnell Douglas burden-shifting
framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); Vega v.
Hempstead Union Free Sch. Dist, 801 F.3d 72, 82-83 (2d Cir, 2015). Once an employee has
demonstrated a prima facie case, “[t]he burden then shifts to the employer to articulate some
legitimate, nondiscriminatory reason for the disparate treatment.” Vega, 801 F.3d at 83 (internal
quotation marks omitted). “If the employer articulates such a reason for its actions, the burden
shifts back to the plaintiff to prove that the employer’s reason was in fact pretext for
discrimination.” Id. (internal quotation marks and citation omitted).
Here, the district court properly found that Maragh failed to adduce evidence from which
a rational juror could infer that the proffered reasons for terminating him were mere pretext for
race
or
gender discrimination.
RIOC
articulated nondiscriminatory
reasons for
Maragh’s termination: his unsatisfactory work performance and the alleged threats he made to his
co-workers. The defendants provided numerous declarations and evidence related to an internal
investigation to justify their termination of Maragh. Maragh did not produce any evidence that
the findings of the internal investigation—that he had made threatening and harassing remarks to
his co-workers—were false. Because Maragh failed to demonstrate that the defendants reasons
for terminating him were pretext for race or gender discrimination, the district court correctly
granted summary judgment in favor of the defendants on the Title VII and NYSHRL race and
3
gender discrimination claims.
n.
Hostile Work Environment Claim
To establish a hostile work environment claim “the misconduct shown must be severe or
pervasive enough to create an objectively hostile or abusive work environment, and the victim
must also subjectively perceive that environment to be abusive.” Alfano v. Costello, 294 F.3d
365, 374 (2d Cir. 2002) (internal quotation marks and citation omitted). The record does not
support a finding that the alleged misconduct was “severe” or “pervasive” enough such that the
work environment was objectively hostile; as the district court observed, the dearth of admissible
evidence hobbles this claim much as it did Maragh’s discrimination claim. The district court
correctly granted the defendants’ motion for summary judgment on Maragh’s hostile work
environment claim.
III.
NYSHRL Claim and Supplemental Jurisdiction
Having ruled for the defendants on Maragh’s federal claims, the district court decided to
exercise supplemental jurisdiction over Maragh’s NYSHRL claim, despite the general
presumption against reaching state-law claims once all federal claims have been dismissed. See
Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998). Citing judicial economy, the court
reasoned that because NYSHRL claims are evaluated under the same standard as Title VII claims,
the NYSHRL claims would necessarily fail aswell. At the same time, however, the court declined
to exercise supplemental jurisdiction over Maragh’s NYCHRL claim, which would be evaluated
under a “different standard” and would rely on “developing” issues of state law. District Court
Opinion & Order at 23, ECF No. 207.
4
Although Maragh perhaps challenges it, this partial exercise of supplemental jurisdiction
was not an abuse of discretion.
The district court correctly characterized the underlying law
and provided a cogent reason—judicial economy—for reaching the same-standard NYSHRL
claims but not the different-standard NYCHRL claims. Compare Vasquez v. Empress Ambulance
Serv., Inc., 835 F.3d 267, 271 n.3 (2d Cir. 2016) (observing that the retaliation standard is
“identical” under Title VII and the NYSHRL), and Vivenzio v. City ofSyracuse, 611 F.3d 98,106
(2d Cir. 2010) (observing that the “substantive” discrimination standards are the same), with
Mihalikv. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (“[Cjourts
must analyze NYCHRL claims separately and independently from any federal and state law
claims.”). A district court is permitted to decide one supplemental claim and decline another.
See Southerlandv. Hardaway Mgmt. Co., 41 F.3d 250,256-57 (6th Cir. 1994). Such decisions are
reviewed for abuse of discretion. Kroshnyi v. U.S. Pack Courier Servs., Inc., Ill F.3d 93, 102
(2d Cir. 2014).
IV.
Motion to Unseal District Court Records
Maragh has also filed a motion in which he contends that the district court erred by keeping
some of his and the defendants’ documents under seal. Some of the documents he seeks to unseal,
however, are already filed publicly on the docket at ECF Nos. 209 and 210. As to the remaining
audio recording and transcript, we construe his motion as a request to review, for abuse of
discretion, the district court’s order declining to unseal the exhibit. See Bernstein v. Bernstein
Litowitz Berger & Grossmann LLP, 814 F.3d 132, 139 (2d Cir. 2016).
While cognizant of the presumption in favor of public access, the audio recording here
played only a “negligible role” in the district court’s decision, so the presumption of public access
5
is weak.
United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995). The district court
concluded, in fact, that the audio recording and transcript were inadmissible, and therefore
declined to rely on them in granting summary judgment. The district court therefore did not abuse
its discretion by keeping this inadmissible evidence under seal.
We have considered all of Maragh’s remaining arguments and find them to be unavailing
or without merit. Accordingly, we AFFIRM die judgment of the district court and DENY
Maragh’s motion to unseal.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
6
Case l:16-cv-07530-JMF Document 207 Filed 08/05/21 Page 1 of 25
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
X
OTHNIEL EVANS MARAGH,
Plaintiff.
16-CV-7530 (JMF)
-v-
OP1NJON AND ORDER
THE ROOSEVELT ISLAND OPERATING
CORPORATION, et al,
Defendants.
X
JESSE M. FURMAN, United States District Judge:
Plaintiff Othniel Evans Maragh, proceeding without counsel, brings employmentdiscrimination claims against his former employer, the Roosevelt Island Operating Corporation
(“RIOC”), and former coworkers Charlene Indelicato, Claudia McDade, Muneshwar Jagdharry,
John McManus, Rudolph Rajaballey, Sean Singh, Steven Friedman, and Nancy Zee.1 Maragh’s
principal claims — brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et secj.: the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et
seq.\ and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-101 et
seq. — are for discrimination on the basis of race and gender and for a hostile work environment.
i
The Third Amended Complaint also includes three John or Jane Does (the “Doe
Defendants”) in the caption, but it includes no allegations whatsoever about them; nor have they
been identified or served. See ECF No. 87 (“CompL”) at 1. Meanwhile, John McManus passed
away on April 13, 2020. ECF No. 169 (“Defs.’ Mem”), at 1 n.l. Defense counsel did not file a
formal suggestion of death pursuant to Rule 25(a) of the Federal Rules of Civil Procedure, but
they note that Maragh’s “allegations against Mr. McManus appear to relate only to the Plaintiff s
retaliation claim which was [previously] dismissed” and that “summary judgment should be
granted in [McManus’s] favor” because “[t]here are no allegations or evidence of discrimination
or harassment as to Mr. McManus.” Id. In any event, Maragh’s claims against McManus and
the Doe Defendants fail for the reasons that follow.
Case l:16-cv-07530-JMF Document 207 Filed 08/05/21 Page 2 of 25
Defendants now move, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary
judgment, For the reasons that follow, their motion is granted.
BACKGROUND
The following facts, drawn from the Third Amended Complaint and admissible materials
submitted by the parties in connection with Defendants’ motion, are either undisputed or
described in the light most favorable to Maragh, unless otherwise noted. See Costello v. City of
Burlington, 632 F.3d 41,45 (2d Cir. 201 \).z
A. General Background
Maragh, an African-American man, began working at R10C on a part-time basis, as a
paralegal and temporary employee, in August 2006, Compl. ^|'j| 24-25; Pl.’s 56.1 Response 2.
In December 2006, he began working on a full-time basis as a Purchasing Assistant. ECF No.
158 (“Defs.’ 56.1 Statement”), 1] 4; Pl.’s 56.1 Response 14; Compl. 9. As early as 2006, but
2
Rule 56.1 of the S.D.N.Y. Local Civil Rules provides that “[e]ach numbered paragraph in
the statement of material facts set forth in the statement required to be served by the moving
party will be deemed to be admitted for purposes of the motion unless specifically controverted
by a correspondingly numbered paragraph in the statement required to be served by the opposing
party” and requires that “each statement controverting any statement of material fact, must be
followed by citation to evidence which would be admissible, set forth as required by Fed. R. Civ.
P. 56(c).” S.D.N.Y. L. Civ. R. 56. l(c)-(d). Although Maragh received notice of Rule 56.1’s
requirements pursuant to Local Rule 56.2, see ECF Nos. 159, 170, many paragraphs in his Rule
56.1 Statement — which is substantively identical to his memorandum of law and a declaration,
see ECF No. 185 (“Pl.’s Opp’n); ECF No. 185-22 (“Maragh Decl.”) — fail to satisfy this
requirement. See, e.g., ECF No. 1 S5-21 (“Pl.’s 56.1 Response”), 1fi] 4-8 (citing no evidence in
the record). Nevertheless, given Maragh’s pro se status, the Court declines to deem the
statements in Defendants’ 56.1 Statement admitted on this basis alone. SeeShorttv.
Congregation KTI, No. 10-CV-2237 (ER), 2013 WL 142010, at *7 (S.D.N.Y. Jan. 9, 2013)
(“[Wjhere a pro se plaintiff fails to submit a proper Rule 56.3 statement in opposition to a
summary judgment motion, the Court retains some discretion to consider the substance of the
plaintiffs arguments, where actually supported by evidentiary submissions.” (internal quotation
marks omitted)); Anderson v. City of New Rochelle, No. 10-CV-4941 (ER), 2012 WL 3957742,
at *7 (S.D.N.Y. Sept. 4, 2012) (same).
2
Case l:16-cv-07530-JMF Document 207 Filed 08/05/21 Page 3 of 25
no later than 2011, Maragh also held the title “Inventory Clerk,”3 From 2008 on, Maragh
reported directly to Defendant Muneshwar Jagdharry, RIOC’s Assistant Chief Financial
Officer/Comptroller. ECFNo. 163 (“Jagdharry Deck”) T] 1; PL’s 56.1 Response]] 5.
In 2011, Maragh was asked to oversee a Young Adult Youth Program (“YAYP”) on
Friday and Saturday nights; the program, which served predominantly low-income Black and
Latino males, grew threefold in participation during Maragh’s three years overseeing it. Compl.
]]]} 35, 37-38, 110. In early 2014, “RIOC began charging YAYP participants a $5 facility fee
each time they attended a YAYP activity.” Id.
109. In March of that year, Maragh sent an
email to Indelicato, then the President/CEO of RIOC, criticizing the new facility fee. Id. ]] 38.
On May 12,2014, Jagdharry gave Maragh a formal memorandum warning him about
unsatisfactory workplace performance and conduct. Jagdharry Decl. ]j 12; ECFNo. 163-1 (“May
12,2014 Memo”). The memorandum stated that Maragh was “habitually late” and responsible
for “an unacceptable frequency of errors”; criticized his “unreliability and lack of diligence’ and
his “tendency to move away from [his] workstation and interrupt other employees with [his]
personal problems”; and accused him of “harassing staff overpayments for the basketball
program and wasting an enormous amount of time in the process.” May 12, 2014 Memo. It
advised Maragh that if these performance issues were not corrected within three to six months,
disciplinary action would be taken. Id. On the same day, Maragh was also called in to meet with
Jagdharry, McDade (the Director of Human Resources and Administration of RIOC), and
Frances Walton (the CFO of RIOC); at this meeting, Maragh’s superiors aired their frustrations
3
According to Defendants, Maragh was hired “to the full-time position of Purchasing
Assistant/Inventory Clerk on December 18,2006.” ECFNo. 168 ( McDade Decl. )
Maragh, however, maintains that he was “promoted to Inventory Clerk in 2008. Maragh Decl.
«i 5, But see Compl, ]| 27 (alleging that Maragh was promoted to Inventory Clerk “[i]n or about
2011 ”). In any event, there is no dispute that he held both titles throughout the period relevant to
his claims. See Defs.’ Mem. 15; Compl. *|]l 26-27,
3
Case l;l6-cv-07530-JMF Document 207 Filed 08/05/21 Page 4 of 25
with Maragh’s performance and indicated their desire to see change. See McDade Decl. fjj 1,
11; Jagdharry Decl. 1| 13; Compl. 11123.4 Maragh asserts in a declaration that he “became even
more focused on his job because of this meeting.” Maragh Decl. If 16. By contrast, he testified
at his deposition that, due to what happened at the meeting, he “couldn’t sleep at night” and
“could not focus” and that the meeting “ma[de] [him] mentally checkout and [feel]
psychologically beaten up from every angle.” ECF No. 160-2 (“Maragh Sept. 29,2020 Dep. ’),
at 147.5
Three months later, on August 14, 2014, Maragh received another writeup. Jagdharry
Decl. 1| 15; McDade Decl. H 14; ECF No. 163-2 (“August 14,2014 Memo”). It listed the topics
discussed three months earlier as “[e]xcessive lateness”; “[ajbuses of paid time off; [pjoor
work performance”; M[l]ack of attention to detail with regard to work assignments”; “[fjrequent
wandering from your work station and/or the administrative office ; and [frequently disrupting
or harassing other employees.” August 14, 2014 Memo. The memorandum stated that theie was
“need to reiterate these problematic issues” and to draw Maragh s attention to the fact that theie
has been little to no improvement to any of’ them. Id. * This pattern of behavior and continued
display of a total lack of commitment by [Maragh] toward [his] position with RIOC ” the
memorandum declared, “is unacceptable.” Id. It notified Maragh that he was required to
correct these deficiencies and satisfactorily fulfill [his] responsibilities within the next three (j)
■
Although Maragh agreed in his interrogatory responses with Defendants’ testimony that
the other participants in the May 12, 2014 meeting were Jagdharry, McDade, and Walton, ECF
No. 160-1 (“Maragh ROG Responses”), H 7(E), his declaration instead states that McDade and
hulelicuto were “presen[t]” at the meeting with Jagdharry, Maragh Decl. 1| 15. Indelicato
testifies that she had no direct involvement with the May 2014 meeting. See ECF No. 162
(“Indelicato Deck”), U 11.
5
In his declaration, Maragh claims that lie “did not at any point during the deposition say
or admil[] that he menially ‘checked out’” and that the deposition transcript, which indicates
otherwise, “has been altered and fabricated.’ Maragh Decl. H 17.
4
Case l:16-cv-07530-JMF Document 207 Filed 08/05/21 Page 5 of 25
months or further disciplinary action will be taken,’’ Id. Maragh had anothei meeting with
Jagdharry and McDade that same day in which they reiterated that Maragh had three months to
correct the problems identified in the memorandum or there would be disciplinary consequences.
McDade Deck 1| 14; Jagdharry Decl. f 15; Maragh Dec], H 12.
On September 3, 2014, Maragh filed an internal charge of race discrimination against
RIOC and various employees, his first formal allegation of maltreatment during his time at
RIOC. Compl. I] 42.6 Shortly thereafter, Maragh filed his internal complaint with the New York
State Department of Labor (“DOL”), which then launched an investigation in coordination with
the Workforce Development Unit of the Governor’s Office of Employee Relations (“GOER”),
See Compl. 11127; Maragh Decl. | 19; Indelicate Deck H 15: McDade Deck H 17. Meanwhile,
from mid-August to September 2014, several of Maragh ;s colleagues expressed concern about
his “threatening and harassing workplace behavior.” Defs.’ 56.1 Statement f 21, see also
Jagdharry Decl. % 17; McDade Deck H 21; ECF No. 167 (“Singh Deck”), HI 11-12. On
September 29,2014, after consulting with DOL and GOER, RIOC placed Maragh on paid
administrative leave, pending the results of an investigation by RIOC s Public Safety
Department (“PSD”) into his allegedly harassing behavior. Indelicate Decl. 1| 17; McDade Decl.
1| 21; Jagdharry Dei. % 18; Compl. Iffl 131,133; Maragh Decl. 121. The PSD investigation took
place around the same time that DOL conducted its investigation into Maragh’s claims of
j\
•] ■
ri
r>
This intemai complaint appeal's to be the document filed at ECF No. 185-10, but, as there
is no “foundation from a witness with personal knowledge” authenticating the document, the
Court cannot and will not consider it. Picard v. RAR Entrepreneurial Fund, Ltd., No. 20-CV1079 (JMF) 2071 WL 827195, at *9 (S.D.N.Y. Mar. 3,2021); accord Sys. Agency v. Vrilamieva,
No. 19-CV-64S6 (JMF), 2020 WL 7629879, at *1 (S.D.N.Y. Dec. 22,2020) (“[D]ocuments that
arc not attached to an affidavit made on personal knowledge setting forth facts that would be
admissible in evidence and sufficient to authenticate the document cannot be considered on
summary judgment.” (internal quotation marks omitted)),
5
1
|
Case l:16-cv-07530-JMF Document 207 Filed 08/05/21 Page 6 of 25
discrimination. SeeECFNo. i62-l niR”), at6-8; ECFNo. i61 (“DOLReport”), at4-5; see
also McDade Decl. f| 17,21-22.
Within a month, Maragh filed a formal complaint with the Equal Employment
-
Opportunity Commission (“EEOC”), dated October 28; 2014, asserting discrimination based on
race, color, and sex and a claim of retaliation stemming from his internal complaint. Compl.
<§ 20; McDade Decl. % 16; ECF No. 168-3 (“EEOC Complaint”), at 1. Around December 3,
2014, Maragh sent an email to DOL updating his initial internal complaint, adding five new
t
respondents as well as new allegations: that he was called “[sjtupid,” called a racial slur, and was
paid less than employees who started after him. See Compl. f 150; DOL Report 1. After months
of inquiry, the DOL investigation concluded in February 2015 that Maragh’s allegations of
discrimination or retaliation were unsubstantiated. See DOL Report 34-38. In conclusion, tlie
DOL Report noted that “[wjhile there appeared to be behaviois [at RIOC] consistent with
favoritism,... it could not be substantiated that the difference in treatment was based on a
protected status. The evidence appeared to favor unprofessional ism, poor management
decisions, and inappropriate actions due to personal dislike.” Id. at 38. Conversely, the RIOC s
PSD found that the charges against Maragh alleging that he had harassed othei employees were
“credible.” HR 79. On December 4, 2015, Maragh’s employment with RIOC was terminated
due to poor performance and the findings of the PSD Report. Compl.
159-60, Indelicato
Decl. Ill 16-17; McDade Decl. 22.
B- Procedural History
Marash. proceeding without counsel, filed his initial complaint on Septembei 26, 2016,
ECF No, 2, and a First Amended Complaint on March 6.2017, ECF No. 24, alleging a
“potpourri of claims” against several coworkers and RIOC itself. Maragh v. Roosevelt Island
Operating Cvrp., No. 16-CV-7530 (IMF), 2018 WL 6573452, at *1 (S.D.N.Y. Dec. 13, 2018)
6
Case l:16-cv-07530-JMF Document 207 Filed 08/05/21 Page 7 of 25
(ECF No. 84),7 On June 14,2017, counsel entered a notice of appearance on Maragh’s behalf,
ECF No. 50, and Maragh subsequently filed a Second Amended Complaint, ECF No. 53. On
September 8,2017, Defendants moved to dismiss the Second Amended Complaint m its entirety
pursuant to Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure. ECF No. 60. By
Opinion and Order entered on December 13, 2018, the Court granted the motion in part and
denied it in part. Specifically, the Court dismissed all of Maragh’s claims “except for his
discrimination and hostile work environment claims under Title VII (against RIOC) and under
the NYSHRL and NYCHRL (against RIOC and the individual Defendants in their individual
capacities).” Maragh, 2018 WL 6573452, at *6. The Court father niled that “Maragh may not
see
k punitive damages except against the individual Defendants under the NYCHRL. Id.
Maragh then filed the operative Third Amended Complaint on December 21,2018, see Compl.,
which Defendants answered on January 14, 2019, ECF No. 90.
In May 2019, after discovery had commenced, Plaintiffs counsel moved to withdraw
from his representation of Maragh, ECF Nos. 94,95, which the Court granted as unopposed on
June 5, 2019, ECF No. 102, leaving Maragh to prosecute his case pro se. Discovery finally
closed on October 7,2020, after the parties sought, and received, numerous extensions. See ECF
Nos. 102, 110, 125, 131, 133, 135, 140. Maragh, however, did not issue written discovery
requests to Defendants or take any depositions. See Defs.’ Mem. 8.
Defendants moved for summary judgment on January 11,2021. ECF No. 157. Maragh
filed opposition papers on February 25, 2021, ECF Nos. 179, 180, and Defendants filed a reply
on
March 10, 2021, ECF No. 181. On April 2,2021, however, Maragh filed a new opposition,
The initial and First Amended Complaints also named as Defendants the RIOC Board of
Directors and several individual members of the Board, see, e.g., ECF No. 5j fj| 22-31, but these
claims were voluntarily dismissed later, see ECF No. 57.
Case l:16-cv-07530-JMF Document 207 Filed 08/05/21 Page 8 of 25
with thirty attached exhibits, Pl.’s Opp’n, and three days later filed a letter seeking leave to
submit an audio recording to the Court, ECF No. 186.8 Shortly thereafter, Defendants moved to
strike the April 2020 opposition filings, arguing that “[a]t no time did [Maragh] indicate that [his
earlier] filings were incomplete or required any supplementation” and that he did not “set forth
any need or justification for” making supplemental filings. ECF No. 187, at 1. Maragh
responded that his February 2020 filings “were incomplete place holders” filed “in conjunction
wiith [his] request for an extension of time” of the then-existing briefing deadlines.
ECF No.
189. In an Order dated April 9,2021, the Court explained that “[although” it was “frustrated
that [Maragh] gave no indication that his opposition papers filed on February 24, 2021, wete
anything other than his complete and final submission until well over a month later, during
which time Defendants timely filed their reply, in light of [Maragh’s] pro se status, the Court
will consider [Maragh’s] filings of April 2, 2021, and April 5, 2021, as his opposition to
Defendants’ motion for summary judgment, superseding his prior submission.” ECF No. 190.
“For avoidance of doubt,” the Court continued, “the Court will disregard [Maragh’s] prior
opposition papers filed on February 24, 2021, ECF Nos. 179-80, as well as Defendants’ reply
papers filed on March 10, 2021, ECF Nos. 181-83.” Id. The Court directed Defendants’ to file a
new reply, id,} which Defendants timely filed, ECF No, 194,
SUMMARY JUDGMENT STANDARDS
Summary judgment is appropriate where the admissible evidence and the pleadings
demonstrate “no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a); see also Johnson v. Killian, 680 F.3d 234, 236 (2d Cm
*
The Court granted Maragh permission to file the audio recording, ECF No. 198, but it
declines to rclv on it because there is no foundation to authenticate it. See supra note 6. In any
event, even if the Court were to consider the recording, it would not change the conclusions
below.
8
Case l:16-cv-07530-JMF Document 207 Filed 08/05/21 Page 9 of 25
2012) (per curiam). A dispute over an issue of material fact qualifies as genuine “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party." Anderson
Liberty Lobby, Inc,, All U.S. 242,248 (1986); accord Roe v. City cf Waterbary, 542 F.3d 31,35
(2d Cir. 2008).
The moving party bears the initial burden of demonstrating the absence of a
genuine issue of material fact. See Celotex Corp. v. Catrett, All U.S. 317, 325 (1986). “In
moving for summary judgment against a party who will bear the ultimate burden of proof at trial,
the movant’s burden will be satisfied if he can point to an absence of evidence to support an
essential element of the nonmoving party’s claim.” Goenaga v. March of Dimes Birth Defects
Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Celotex, All U.S. at 322-23); accord PepsiCo, Inc.
v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam). Critically, however, all
evidence
must be viewed “in the light most favorable to the non-moving party,” Overton v. N. Y.
State Div. ofMil & Naval Affs., 373 F.3d 83,89 (2d Cir. 2004), and the court must “resolve all
ambiguities and draw all permissible factual inferences in favor of the party against whom
summary judgment is sought,”
Ins. Co. ofHartford v. Old Dominion Freight Lme, Ine., 391
F.3d 77, 83 (2d Cir. 2004).
To
defeat a motion for summary judgment, a non-moving party must advance more than
a “scintilla of evidence," Anderson, 477 U.S. at 252, and demonstrate more than “some
metaphysical doubt
as to the material facts,” Matsushita Elec Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). The non-moving party
“cannot defeat the motion by relying on the
allegations in his pleading. or on conclusory statements, or on mere
supporting the motion are
1996) (citation omitted),
assertions that affidavits
not credible.” Gottlieb v. County of Orange, 84 F.3d 511,518 (2d Cir.
Affidavits submitted in support of, or opposition to, summary judgment
must be based on "personal knowledge," must “set out facts that would be admissible in
9
Case l:16-cv-07530-JMF Document 207 Filed 08/05/21 Page 10 of 25
evidence,” and must show “(hat the affiant or declarant is competent to testify on the matters
stated.” DiSliso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012) (quoting Fed. R. Civ. P. 56(c)(4)).
It is well established that courts must give “special solicitude” to pro se litigants in
connection with motions for summary judgment. Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir,
2010). Thus, a pro se party’s papers opposing summary judgment are to be read liberally and
/!
interpreted to raise the strongest arguments that they suggest. See, e.g., Clinton v. Oppenheimer
& Co., 824 F. Supp. 2d 476,481 (S.D.N.Y. 2011). This special solicitude is not unlimited,
however, and does not “relieve” a plaintiff of his or her “duty to meet the requirements necessary
to defeat a motion for summary judgment.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50
(2d Cir. 2003) (internal quotation marks omitted). Nor is the “duty to liberally construe a
plaintiffs [filing] -.. the equivalent of a duty to re-write it.” Geldzahlerv. N.Y. Mecl. Coll., 663
F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (quoting 2 Moore’s Federal Practice § 12.34[l][b]
(2005)).
Notably, the Second Circuit has cautioned that courts should be “especially chary in
handing out summary judgment in discrimination cases,” as the intent of the employer is often
\
x
disputed. Jamilik v. Yale Univ., 362 F. App’x 148, 149 (2d Cir. 2009) (summary order) (internal
Tv
quotation marks omitted). Nevertheless, it is “beyond cavil that summary judgment may be
appropriate even in the fact-intensive context of discrimination cases. Abdu-Brisson v. Delta
Air Lines. Inc., 239 F.3d 456,466 (2d Cir. 2001). Indeed Just as in the non-discrimination
context, “an employment discrimination plaintiff taced with a properly supported summary
judgment motion must do more than simply show that there is some metaphysical doubt as to the
material facts. [He] must come forth with evidence sufficient to allow a reasonable jury to find
!Y
r>
- i
fhis] favor/' Brown v. Henderson, 257 F.3d 246,252 (2d Cir. 2001) (cleaned up). That is, a
plaintiff must produce not simply some evidence, but sufficient evidence to support a rational
10
1
J
f
Case l:16-cv-07530-JMF Document 207 Filed 08/05/21 Page 11 of 25
finding that the legitimate, non-discriminatory reasons proffered by the defendant weie false, and
that more likely than not discrimination was the real reason for the employment action.
Weinstock v. Columbia Vniv224 F.3d 33,42 (2d Cir. 2000) (cleaned up).
DISCUSSION
K
N\
As discussed above, Maragh’s sole remaining claims are for discrimination on the basis
\ of race and sex and for a hostile work environment, under Title YII, the NYSHRL, and the
' \\\nYCHRL.9 The Court will address Maragh’s Title VII claims first.
A. Gender and Race Discrimination Claims
Maragh’s discrimination claims under Title VII are analyzed according to the three-step,
burden-shifting framework articulated by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Vivenzio v, City of Syracuse, 611 F.3d 98,106 (2d Cir. 2010);
Nieblas-Love v. N.Y.C. Hous. Auth., 165 F. Supp. 3d 51,65-66 (S.D.N.Y. 2016). Under the
framework, a plaintiff bears the burden of establishing aprimafacie case of discrimination, That
is, the plaintiff must establish that: (1) he belonged to a protected class; (2) he was qualified for
the position he sought; (3) he suffered an adverse employment action; and (4) the adverse
employment action occurred under circumstances giving lise to an inference of discriminatory
intent. Abrams v. Dep’t ofPub. Safety, 764 F.3d 244, 251-52 (2d Cir. 2014). Significantly,
courts evaluating the sufficiency of evidence on a motion for summary judgment must carefully
9
Maragh’s opposition brief also makes a single passing reference to “age (youthful)
discrimination.” PL’s Opp’n 3. To the extent Maragh alleges such a claim, it fails, both because
it is entirely unsupported by record evidence and because it appears nowheie m the Complaint.
See Caseno v. Meiro-N. R.R. Co., No. 14-CV-7936 (IMF), 2016 WL 406390, at *1 n.l
(S.D.N.Y. Feb. 2, 2016) (“[A] party may not amend a complaint through his memorandum of
law in opposition to summary judgment... .”)• Moreover, age is not a protected characteristic
under Title VIP' and age discrimination “cannot give rise to a Title VII hostile work environment
claim.” Adda v. N. Y. Health & Hosps. Corp., No, 15-CV-8103 (RA), 2017 WL 4857593, at ¥5
(S.D.N.Y. Oct. 25,20 (7).
1)
Case l:16-cv-07530-JMF Document 207 Filed 08/05/21 Page 12 of 25
distinguish between evidence that allows for a reasonable inference of discrimination and
evidence that gives rise to mere speculation and conjecture.” Bickerstajf v. Vassar Coll., 196
F.3d 435,448 (2d Cir. 1999). “[A]n inference,” the Second Circuit has noted, “is not a suspicion
or a guess. It is a reasoned, logical decision to conclude that a disputed fact exists on the basis of
another fact that is known to exist.” Id. (cleaned up).
Measured against these standards, Maragh does not even come close to establishing a
primci facie case of gender discrimination. To begin, his Complaint barely mentions gender at
all; the allegations that do reference gender are entirely conclusoiy and mostly do not relate to
Maragh himself. Moreover, while all of the allegations are directed at Indelicato — accusing her
of making “personnel decisions that favored women”; referencing RIOC s all-female executive
team during her tenure; hiring of only women to work in RJOC’s main office, and dismissing
RIOC’s former general counsel, a Black man, Conipk
50-52, 54: see also Maragh Decl. <j]‘U 34,
35 — Maragh himself admits that he has no personal knowledge of the RIOC hiring piocess
under Indelicato. Maragh Sept. 29, 2020 Dep. 219, 221. In fact, he acknowledges that his
claims about Indelicato’s personnel decisions are “speculation.” Id. at 221. (By contrast,
Indelicato testifies that she did not even make the decision to terminate the founer general
counsel. Indelicato Deck %10.) At bottom, therefore, Maragh’s gender discrimination claim
relies on little more than his own subjective sense of what he felt in the ait. Maragh Sept. 29,
2020 Dep. 190, That is plainly insufficient to support a claim of gender discrimination. See,
e.g., Lite v. JPMorgan Chase & Co., No. 1 6-CV-3207 (AIN), 2018 WL 1583295, at *7
(S.D.N.Y. Mar. 27, 2018) (“Plaintiff cannot prove discrimination by speculation and by reliance
on her own subjective beliefs.”), tiff’d, 768 F. App’x 7 (2d Cii. 2019) (summary oidei).
Whether Marathi makes out a prima facie case of race discrimination is a closei question,
but here too he ultimately falls short. For starters, most of his allegations concern facially neutral
12
Case l:16-cv-07530-JMF Document 207 Filed 08/05/21 Page 13 of 25
actions. These include, among other things, Indelicate calling Maragh a “troublemaker”;
Rajabailey. RiOC’s Purchasing Manager, acting “dismissively and inappropriately” towards
Maragh, including speaking down to him and screaming; Rajabailey punching Maragh in the arm
or shoulder and blaming him for mistakes; Rajabailey and his assistant Singh demeaning Maragh
in front of other employees; Zee, a colleague, l eaving the lunch table when Maragh sat down;
Zee speaking to Maragh in a “loud, rude, and disrespectful manner”; and Jagdharry yelling at
Maragh in front of coworkers. Compl. Tf 57, 64, 67, 69, 81, 84, 86, 88, 90, 95, 97 (internal
quotation marks omitted); see also Maragh Deck <f|‘fl 16, 22; ECF No. 164 (“Rajabailey Deck”),
111. In general, such “facially neutral comments” and actions “[do not] give[] rise to an
inference of discrimination,” South v. Cont'l Cas. Co,, No. 17-CV-5741 (RA), 2018 WL
4689106, at *11 (S.D.N.Y. Sept. 27, 2018). After all, “Title VII is not a civility statute. Title
VII solely addresses conduct motivated (a) by animus towards members of protected class and
(b) because of the victim’s protected characteristics; it does not reach instances of generally poor
behavior, personal animosity or even unfair treatment,” Whitev. N.Y.C. Dep t ofEduc., No. 05CV-2064 (RRM) (LB), 2008 WL 4507614, at *5 (E.D.N.Y. Sept. 30,2008) (citation omitted).
Maragh asserts that each of these incidents is evidence of race discrimination, but he
proffers no evidence (let alone admissible evidence) to support that assertion aside from his own
personal belief. For example, when questioned about whether Singh’s demeaning behavior
involved any racial animus at his deposition, Maragh said, 1 can’t give you any specifics
because J don’t want to makeup anything or bring it out but he’s insinuated stuff....
ECF No.
160-3 (“Maragh Oct. 6, 2020 Dep.”), at 199. And when asked about the punching incident
involving Rajabailey, Maragh said “I would have to speculate [on] it being because I am Black.”
Id. at 43. A plaintiffs insinuation and speculation do not a prima facie case of discrimination
make. See, e.g.. Nguyen v. Dep 7 of Coir. & Cmty. Sews,, 169 F. Supp. 3d 375,392 (S.D.N.Y.
13
Case l:16-cv-07530-JMF Document207 Filed 08/05/21 Page Mot25
2016) (“[A plaintiffs] own subjective belief that he was discriminated against... is not enough
to make out a prima facie discrimination case under Title Vll.” (internal quotation marks
omitted)); Yu v. N.Y. State Unified Ct. Sys. Off. of Ct. Admin., No. 1 l-CV-3226 (JMF), 2013 WL
3490780 (S.D.N.y. Jul. 12,2013) (granting summary judgment against a plaintiff whose claims
were “based wholly on her personal opinion and ‘feeling’ that she was not treated with respect
due to her race and gender”).10
Maragh tries to raise an inference of discrimination by suggesting that he was treated
differently than two white RiOC employees, see Compl. U 61; Maragh Decl. *jj 12, but his attempt
fails. “To raise an inference of discrimination by showing that he was subjected to disparate ^ \\
treatment, the plaintiff must establish that he was ‘similarly situated in all material respects’ to
m-1
the individuals with whom he seeks to compare himself.” Diggs v. Niagara Mohawk Power <f
Corp., 691 F. App’x 41,43 (2d Cir. 2017) (summary order) (quoting Graham v. Long Island
R.R., 230 F.3d 34, 39 (2d Cir. 2000)); accord Ruiz v. County ofRockland, 609 F.3d 486,494 (2d
Cir. 2010). “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.”
Maragh does submit a declaration from Steven Chironis, RlOC’s former Interim
President and Chief Financial Officer, in which Chironis indicates that he witnessed “rude, illmannered, disrespected [sic] behavior by Nancy Zee towards Othniel Maragh which [he]
believefs] was rooted in ‘racism.’” ECF No. 185-26 (“Chironis Decl.’ ), “fl 2. But Chironis s
subjective “belie[fj” is no better evidence than Maragh’s. Moreover, Chironis himself states in
his declaration that his employment at RIOC ended on August 31,2013, id. 1) 1, meaning that he
lacks personal knowledge about the relevant timeframe, see Petty v. City ofNew York, 633 F.
App’x 52, 53 (2d Cir. 2016) (summary order) (“Claims under the NYSHRL and NYCHRL are
subject to a three-year statute of limitations from the date that the claims accrue.”); Hoffman v.
Williamsville Sch. Disk, 443 F. App’x 647, 649 (2d Cir. 2011) (summary order) (“[0]nly events
10
that occurred during the 300-day period prior to filing [an administrative charge] are actionable
under Title VII.” (cleaned up)). For what it is worth, Chironis’s declaration is thus in tension, if
not conflict, with the Complaint, which alleges that “(o]n or about September 29,2014,” Maragh
and Chironis, “RlOC’s theii-Yice President, Chief Financial Officer,” wrote “an email to RlOC’s
board of trustees informing them of [Maragh’s] suspension and protesting [Defendants
retaliatory conduct.” Compl. H 135 (emphasis added).)
14
/,
V
Case l:16-cv-07530-JMF Document 207 Filed 08/05/21 Page 15 of 25
Ruiz, 609 F.3d at 493-94 {internal quotation marks omitted). Maragh fails to satisfy these
standards here.
For one thing, the two white employees, Steven Friedman and Mike Moreo, held
different jobs than he held. See Maragh Sept. 29,2020 Pep. 261. Moreover, as the POL Report
noted, the
uniqueness of Maragh’s position makes any attempts to compare him with other
employees even more complicated.
DOL Report 32. On top of that, Maragh testified that he has
„o personal knowledge of the investigations of either Moreo and Friedman or the subsequent
administrative decisions made with respect to them - rendering his comparisons entirely
speculative.
Maragh Sept. 29,2020 Dep. 264-65. Meanwhile, Defendants submit evidence
showing that Maragh’s conduct was
in a verbal altercation
not similar to Moreo and Friedman’s: Moreo was involved
with one other employee and Friedman was accused of sexual harassment
See McDade Deck 1 21. By contrast, several coworkers accused Maragh of
by two employees.
in threatening behavior and raised safety concerns; MOC’s PSD investigated and
found those accusations credible. See id.
In short, Maragh fails to prove that he was similarly
situated to either Friedman or Moreo.
On its face, Maragh's strongest evidence of discrimination by far is his testimony that c»
workers — most notably, Rajaballey, Singh, and Friedman —used racial slurs, including the nword. See Compk 11 33, 65, 73, 83; Maragh Deck 11 19,23,25,28." Theuse of such language
See, e.g., Rivera v. Rochester
can certainly be powerful evidence of discriminatory intent.
, 743 F.3d 11,24 {2d Cir. 2014) {“[PJerhaps no single act can more
Genesee Reg’l Tronsp. Aulh.
quickly alter the conditions of employment and create an abusive working env ironment than the
use of an unambiguously racial epithet such as ’nigger’ by a superior in the presence of bis
Maraoh also accuses Indelicate of calling Black men “savages,”
!1
In his Complaint,
Compl. 1158, but there is no a
deposition that he "[did)n’t remember if
29,2020 Dep. 238.
15
Case l:16-cv-07530-JMF Document 207 Filed 08/05/21 Page 16 of 25
itted)). But that is not the case here for several
subordinates," (internal quotation marks onn
reasons. First, “allegedly discriminatory comments made by a
nondecisionmaker are, as a matter
of law, insufficient to raise an inference of discrimination," De La Cruz v. City of New Yoik, 783
F. Supp. 2d 622,643 (S.D.N.Y. 2011). Here, assuming that Maragh’s allegations are even true,
the people he accuses of having used problematic language — including Jagdharry (who
allegedly stated that
Compl. 179) —■
“Black people are stronger than Indians and must be worked harder,
had no role in the only adverse employment action that Maragh experienced, his
Rajaballey Decl. H 2; ECF No. 165 (“Friedman Deck”) H 2; Singh Deck 1! 2;
termination.
Jagdharry DecL H 19. Additionally, Maragh’s allegations are almost entirely lacking in specifics
-most notably, with respect to when and under what circumstances almost all of the comments
were made, let alone whether they were made
within the limitations period. See, e.g., Maragh
Deck 1 36 (“[T]he individuals engaged in the activities throughout the Plaintiffs tenure . .. ”);
Maragh Oct.
there.”)- No
evidence.
6,2020 Dep. 120 (“[Friedman used the n-word] throughout the whole years 1 was
reasonable jury could rule in Maragh’s favor on the basis of such amorphous
eg., Fa,worth v. vim. Bible Soc., No. 03-CV-3005 (MBM), 2005 WL 1837504,
at *9 (S.D.N.Y, July 28,2005) (dismissing
“lacking in specific details of the disp
a Title VII discrimination claim where because it was
arate treatment she allegedly suffered” and was “also flatly
contradicted by [the] plaintiffs [own] deposition testimony”), aff'd sob non,. MUchell-Foxwonh
v. Am. Bible Soc,, 180 F.
App’x 294 (2d Cir. 2006) (summary order); cf Stofslcy v. Pawling Cent
Sell. DisL, 635 F. Supp. 2d 272, 302 (S.D.N.Y. 2009) (dismissing a Title VII retaliation claim on
. bolstered by no
summa ry judgment where the plaintiff relied on “amorphous assertions ..
evidence in the record from which a reasonable jury could conclude that [the pjlaintiff ever
engaged in protected activity”).
16
Case l:16-cv-07530-JMF Document 207 Filed 08/05/21 Page 17 of 25
More broadly, the Court concludes that it need not, and should not, credit Maragh s
allegations about the use of racial slurs, including the n-word. To be sure, “a district court
generally cannot grant summary judgment based on its assessment of the credibility of the
evidence presented.” Agosto v.
INS, 436 U.S. 748, 756 (1978). In Jeffreys v. City ofNew York,
426 F.3d 549 (2d Cir. 2005), however, the Second Circuit recognized a narrow exception to that
rule “in the rare circumstance where the plaintiff relies almost exclusively on his own testimony,
much of which is contradictory and incomplete.'3 Id. at 554. In such a case, the court explained,
“it will be impossible for a district court to determine' whether the jury could reasonably find for
the plaintiff, and feus whether there are any genuine issues of material fact, without making
some assessment of the plaintiffs account.” Id. (cleaned up); see also. e.g., Rojas v. Roman
Cath. Diocese ofRochester, 660 F.3d 98, 104-06 (2d Cir. 2011) (per curiam) (affirming
dismissal of a sexual harassment claim and disregarding the plaintiffs allegations where there
were “plain inconsistencies between the facts advanced by [the plaintiff] in opposition to
summary judgment and those alleged in her original and amended complaints, in sworn
interrogatoiy responses, in portions of her deposition testimony, in her complaints before the
EEOC, and in prior sworn testimony33). Along similar lines, fee Second Circuit has held that a
party may not create an issue of fact by submitting an affidavit in opposition to a summary
judgment motion that, by omission or addition, contradicts the affiant s pievious deposition
testimony.” Hayes v. N.Y.C. Dep’t of Con., 84 F.3d 614, 619 (2d Cir. 1996). If a party “could
raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony,
the court reasoned, “this would greatly diminish the utility of summary judgment as a procedure
for screening out sham issues of faclT Id. (quoting Permit Rsch. & Dev. Co. v. Siflgei Co., f I 0
F.2d 572,578 (2d Cir. 1969)).
17
Case l:16-cv-07530-JMF Document 207 Filed 08/05/21 Page 18 of 25
Applying these standards here, the Court concludes thatMaragh’s allegations need not
and should not be credited. Maragh conspicuously failed to even mention the n-word in the
original complaint charging RIOC with race discrimination that he filed with the DOL in
September 2014; he added the allegations for the first time in the amended complaint that he
filed in December 2014, after he had been placed on administrative leave. See DOL Report 1;
Defs.’ 56,1 Statement f 22. Meanwhile, in his interrogatory responses, Maragh claimed
Friedman called him the n-word over ten times, Singh over twenty times, and Rajaballey over
thirty times; at his deposition, however, he provided dramatically different numbers (two or
three, fifty to one hundred or more, and fifty to one hundred, respectively). Maragh ROG
Response 5-6; Maragh Oct. 6, 2020 Dep. 30, 120, 194. And, of course, Maragh provides no
evidence — documents, declarations from other witnesses, etc. — to substantiate his conclusory
allegations. See, eg., Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008) (“Even in the
discrimination context... a plaintiff must provide more than conclusory allegations to resist a
motion for summary judgment.”). By contrast, Defendants submit declarations from Maragh’s
co-workers adamantly denying that they ever used racial slurs, including the n-word, or heard
them used. See Friedman Decl. *fl| 3, 9; Singh Decl. fj| 4-5, 8; Rajaballey Deck 9; ECF No.
166 (“Zee Decl”), % 5; Jagdharry Decl. 1| 21; McDade Decl. % 8; Indeiicato Decl. 1| 19. And they
point to the DOL report, which found Maragh’s charges to be unsubstantiated based in part on
the inconsistencies in his claims. DOL Report 37. To be sure, Maragh did not previously
contradict his own testimony, as the plaintiff in Jeffreys (1 id. See 426 F.3d at 552. At the same
time, however, the plaintiff in Jeffreys offered the statements of others to corroborate his claims.
See id Maragh does not even have that. Under these circumstances, no jury “could reasonably
find for the plaintiff.” Id. at 554 (quoting Anderson, 477 U.S. at 252) (emphasis in original).
18
Case l:16-cv-07530-JMF Document 207 Filed 08/05/21 Page 19 or 2b
In any event, even if the foregoing evidence were sufficient to establish a primafacie
case of discrimination, summary judgment would still be warranted. Defendants easily meet
their burden of demonstrating that RIOC had legitimate, nondiscriminatory leasons to fire
Maragh: He had “pervasive” performance issues, including work done inaccurately,
incompletely, or late; punctuality issues that he acknowledged; and, most significantly, engaged
in harassing workplace behavior that led other employees to fear for their safety. Jagdhany
Deck
12, 17-18; Indelicate Deck % 17; McDade Deck fft 13, 21; Singh Deck H 11, 13-15;
Rajaballey Deck f 3: Zee Deck H 8-11; Friedman Deck 111; Maragh Sept. 29, 2020 Dep. 9293. Moreover, Maragh was terminated only after he was given two formal warnings that there
would be disciplinary consequences if his performance did not improve and after an internal
investigation concluded that co-workers had credibly expressed concerns for their safety.
Jagdhany Deck ff 12, 15; Indelicate Deck U 16. Thus, it becomes Maragh’s burden to
demonstrate that these justifications were merely a pretext for discrimination. See, e.g., Auhcino
v. N.Y.C. Dep’t ofHomeless Servs580 F.3d 73, 80 (2d Cir. 2009). Maragh hardly attempts to
do so, and certainly does not succeed. Indeed, he testified at his deposition that no one referred
to his race in connection with his being placed on administrative leave or ultimately terminated.
See Maragh Sept. 29, 2020 Dep. 173,190. And while Maragh does take issue with the negative
performance reviews that Defendants say contributed to his termination, a plaintiffs subjective
disagreement with his co-workers’ characterization of his job performance does not create a
material issue of fact as to whether Defendants’ asserted reasons for Plaintiff s termination were
pretextual.” Concha v. Purchase Coll. State Um'v. of N.Y., No. 17-CV-8501 (JCM), 2019 WL
3219386, at *9 (S.D.N.Y. July 17,2019). In short, even assuming arguendo that Maragh could
meet his burden to establish a prima facie case of race discrimination in violation of Title VII,
summary judgment on his claim would still be warranted.
19
Case l:16-cv-07530-JMF Document 207 Filed 08/05/21 Page 20 of 25
B. Hostile Work Environment Ciaim
Maragh’s only remaining federal claim is for the creation of a hostile work environment.
To prove a hostile work environment claim under Title VII, a plaintiff “must show that the
workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that
the terms and conditions of [his] employment were thereby altered/’ Alfcino v. Costello, 294
F.3d 365, 373 (2d Cir. 2002); accord Rivera, 743 F.3d at 20. That showing requires a plaintiff to
identify incidents that are “more than episodic; they must be sufficiently continuous and
concerted in order to be deemed pervasive.” Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d
Cir. 1997) (internal quotation marks omitted). “In considering whether a plaintiff has met this
burden, courts should examine the totality of the circumstances, including: the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with the victim’s job performance.”
Rivera, 743 F.3d at 20 (cleaned up). The “test has objective and subjective elements: the
misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive
work environment, and the victim must also subjectively perceive that environment to be
abusive.” Alfano, 294 F.3d at 374 (internal quotation marks omitted). Significantly, the creation
of a hostile work environment “is actionable under Title Vll only when it occurs because of.
[a] protected characteristic.” Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001).
Maragh’s hostile work environment claim is based on the same evidence as his
discrimination claim. Thus, it surfers from the same fatal defects, including the dearth of
admissible evidence, allegations of facially neutral conduct, and the amorphous and shapeshifting nature of Maragh’s testimony. See. e.g., Gobin v. N.Y.C. Health & Hosps. Corp., Mo.
04-CV-3207 (WHP), 2006 WL 2038621, at *5 (S.D/N.Y. Jul. 19, 2006) (dismissing a hostile
work environment claim where the plaintiff identified three specific harassing statements and
20
Case l:16-cv-07530-JMF Document 207 Filed 08/05/21 Page 21 of 25
otherwise “testified that the comments were made ‘many times.5 When a plaintiff identifies only
a few incidents, general allegations of constant abuse must be accompanied by some
corroborating evidence to support a claim for hostile work environment.” (cleaned up)); see also,
e.g.E.E.O.C. V. BloombergLJ3., 967 F. Supp- 2d 816, 849 (S.D.N.Y. 2013) (dismissing a
hostile work environment claim where the plaintiff offered only “vague, conclusory
statements”).
Moreover, to the extent that Maragh’s hostile work environment claims against RIOC are
based on a theory of vicarious liability for the alleged acts of his coworkers, those claims fail for
an additional reason. An employer cannot be held liable for an alleged hostile environment
perpetrated by a plaintiff’s coworkers unless it “either provided no reasonable avenue of 'C'y.A—
Y \f\ >
complaint or knew of the harassment but did nothing about it.” Quinn v. Green Tree Credit
Corp., 159 F. 3d 759, 766 (2d Cir. 1998), abrogated in part on other grounds, Nat’l R.R
y
Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Here, there is no evidence that RIOC knew
about any alleged harassment until at least September 2014, at which point Maragh’s allegations
were thoroughly investigated by the DOL. And RIOC provided a “reasonable avenue of
complaint” that was memorialized in an employee handbook, see ECF No. 168-1, at 3-4,36-37;
£CF No. 195-1, yet Maragh did not avail himself of the procedures until September 2014.’2
Maragh claims that he did not do so sooner because he was “scared,” Maragh Sept. 29, 2020
Dep. 250, but where, as here, there is no evidence that “the employer has ignored or resisted
similar complaints or has taken adverse actions against employees m response to such
Maragh denies receiving the RIOC employee handbook, see Maragh Deck *j| 38, but this
denial is belied by a statement, signed by Maragh on October 2, 2008, acknowledging receipt of
the handbook, ECF No. 195-1. Moreover, whether or not Maragh received the RIOC handbook,
he admits that he received an EEOC handbook detailing New York State discrimination law and
procedures for raising complaints. Maragh Deck ®| 38; ECF No. 168-2, at 31-33. That handbook
12
alone is enough to satisfy RIOC’s burden.
21
Case l:16-cv-07530-JMF Document 207 Filed 08/05/21 Page 22 of 25
complaints.” Eichler v. Am. Inl'l Grp., Inc., No. 05-CV-5167 (FM), 2007 WL 963219, at *12
(S.D.N.Y. Mar. 30,2007) (internal quotation marks omitted), such subjective beliefs do not
justify the failure to pursue a reasonable avenue for complaint.
In short, Defendants are entitled to summary judgment on Maragh s Title VII hostile
work environment claim as well.
C. NYSHRL and NYCHRL Claims
Having dismissed Maragh’s Title VII claims, the Court must decide whether to exercise
supplemental jurisdiction over his claims under the NYSHRL and NYCHRL. A distiict court
“may decline to exercise supplemental jurisdiction over [a pendent state law claim] if... the
district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C.
§ 1367(c)(3). The statute does not create “a mandatory rule to be applied inflexibly in all cases.”
Camegie-Mellon C/mV. v. Cohill, 484 U.S. 343, 350 n.7 (1988). Nevertheless, “in 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 —judicial economy, convenience, fairness, and comity
— will point toward declining to exercise jurisdiction over the remaining state-law claims.
Id.',
see also Kolari v. N. Y.-Presbylerian J-Josp., 455 F.3d 118, 123 (2d Cir. 2006) (reversing a
district court decision to retain supplemental jurisdiction over state law claims after dismissal of
the federal claim, citing “the absence of a clearly articulated federal interest”); Marcus v. AT&T
Corp., 138 F.3d 46, 57 (2d Cir. 1998) (“In general, where the federal claims are dismissed before
trial, the state claims should be dismissed as well.”); Anderson v. Nat 7 Grid, PLC, 93 F. Supp.
3d 120, 147 (E.D.N.Y. 2015) (“In the interest of comity, the Second Circuit instructs that absent
exceptional circumstances, where federal claims can be disposed of pursuant to ... summary
judgment..., courts should abstain from exercising pendent jurisdiction.” (internal quotation
marks omitted) (citing cases)).
22
Case 1.16-CV-07530-JMF Document 207 Filed 08/05/21 Page 23 of 25
Despite the general presumption, the Court concludes, in the interest of judicial economy,
that it should exercise supplemental jurisdiction over Maragh’s NYSHRL claims, as it is well
established that the substantive standards are the same as the Title VII standards applied above.
See Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 271 n.3 (2d Civ. 2016) (“[T]he
standards for evaluating retaliation claims are identical under Title VII and the NYSHRL.”
(cleaned up)); Vivenzio, 611 F.3d at 106 (“The substantive standards applicable to claims of
employment discrimination under Title VII... are also generally applicable to claims of
employment discrimination brought under... the NYSHRL.”). By contrast, the Court declines
to exercise supplemental jurisdiction over Maragh’s NYCHRL claims “because they are subject
to a different standard and must be analyzed separately.” Zenie v. Coll, of Mount Saint Vincent,
No. 18-CV-4659 (IMF), 2020 WL 5518144, at *8 (S.D.N.Y. Sept. 14, 2020). “In light of that,
and because the law governing claims under the NYCHRL is still developing, [Maragh’s]
NYCHRL claims present questions ‘best left to the courts of the State of New York.’” Nunez v.
N. Y. State Dep ‘t of Coir. & Cmiy. Supervision, No. I4-CV-6647 (JMF), 2037 WL 3475494, at
*4 (S.D.N.Y. Aug. 11, 2017) (quoting Giordano v. City ofNew York, 274 F.3d 740, 754 (2d Cir.
2001)), ciff’dsub nom. Nunez v. Lima, 762 F. App’x 65 (2d Cir. 2019) (summary order).
Accordingly, Maragh’s remaining NYCHRL claims — for discrimination and hostile work
environment— are dismissed without prejudice to him refiling them in state court.
CONCLUSION
For the reasons stated above, Defendants’ motion for summary judgment is GRANTED,
Maragh’s Title VII and NYSHRL claims are dismissed in their entirety with prejudice, and his
NYCHRL claims are dismissed without prejudice to reliling in state court.
One final housekeeping matter remains. The Court previously granted Defendants leave
to file two documents under seal on a temporary basis. ECF No. 155 — namely, the reports filed
23
Case l:16-cv-07530-JMF Document 207 Filed 08/05/21 Page 24 of 25
atECFNos. 161-1 and 162-1. But Defendants improperly also filed the accompanying
declarations under seal at ECF Nos. 161 and 162. It is well established that filings that are
“relevant to the performance of the judicial function and useful in the judicial process” are
considered “judicial documents” to which a presumption in favor of public access attaches.
Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006) (internal quotation
marks omitted). Significantly, assessment of whether the presumption in favor of public access
is overcome must be made on a document-by-document basis, see, e.g., Brown v. Maxwell, 929
F.3d 41,48 (2d Cir. 2019), and the mere fact that a court does not rely upon a document in
adjudicating a motion does not remove it from the category of “judicial documents,” id. at 50-51.
Finally, the mere fact that information is sealed or redacted by agreement of the parties is not a
valid basis to overcome the presumption. See, e.g., United States vj. Wells Fargo Bank N.A., No.
12-CV-7527 (JMF), 2015 WL 3999074, at *4 (S.D.N.Y. June 30,2015). That is, a party must
demonstrate reasons to justify sealing or redaction separate and apart from a private agreement to
keep information confidential. Accordingly, notwithstanding any prior Order directing the
parties to address the propriety of continued sealing, any party that believes, in light of the
foregoing principles, that any materials currently under seal or in redacted form should remain
under seal or in redacted form is ORDERED to show cause in writing, on a document-bydocument basis, why doing so would be consistent with the presumption in favor of public
access no later than two weeks from the date of this Opinion and Order. Proposed redactions
should be “narrowly tailored” to achieve the aims that justify sealing. See, e.g., Brown, 929 F.3d
at 47 (internal quotation marks omitted). As Defendants never sought leave to file the Bartley or
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Case l:16-cv-07530-JMF Document 207 Filed 08/05/21 Page 25 of 25
Indelicato Declarations under seal, they shall file both documents on the docket in unredacted
form by the same date.13
The Clerk of Court is directed to terminate ECF No. 157, to close the case, to enter
judgment consistent with this Opinion, and to mail a copy of this Opinion and Order to Plaintiff.
SO ORDERED.
Dated: August 5, 2021
New York, New York
/JESSEN^L-FURMAN
United States District Judge
13
The audio recording and the transcript Maragh submitted can and will remain under seal
both for the reasons Defendants gave previously, see ECF No. 204, and because the Court did
not rely on these materials in any way.
25
UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
16th day of December, two thousand twenty-two.
Othniel Evans Maragh,
Plaintiff - Appellant,
ORDER
v.
Docket No: 21-2129
Roosevelt Island Operating Corporation, Charlene
Indelicato, Claudia McDade, Muneshwar Jagdharry, John
McManus, Rudolph Rajaballey, Sean Singh, Steven
Friedman, Nancy Zee, John and Jane Does 1 2 3,
Defendants - Appellees.
Appellant, Othniel Evans Maragh, filed a petition for panel rehearing, or, in the
alternative, for rehearing en banc. The panel that determined the appeal has considered the
request for panel rehearing, and the active members of the Court have consideied the request for
rehearing en banc.
IT IS HEREBY ORDEREu that fne petition is denied.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
/
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.